Young children get on a school bus.
A Michigan school district may be liable for an accident where a school bus ran over a boy who the driver said was racing the bus on his bicycle, after an appeals court reversed a ruling the boy was mostly at fault for his own injuries.
Saying the seven-year-old was on the “dividing line” regarding his possible responsibility for the accident, the Michigan Court of Appeals reinstated the lawsuit by Kayla Briseno and John Crumley against Holt Public Schools. Children under seven aren’t considered capable of negligence under Michigan law. Government employees are immune from lawsuits unless a jury determines they have committed gross negligence.
The boy identified as ABC got off the bus, then jumped on his bike and followed it along the driver’s side, at one point stopping to jump up and down and wave at the children still on board the bus. The bus driver lost sight of the child as she was turning left, a deviation from her normal route, and ABC was crushed under the back tires of the bus.
The driver stopped, called for an ambulance, and told the children on the bus “I think he thought I was going straight like I always do,” “why did he come off that curb” and “he cannot race the bus.” The driver later told a police officer she saw ABC on his bike when the bus was stopped but not when she turned, although she altered her story in a deposition to say the first time she saw him was when the accident occurred.
The trial judge dismissed the case, citing Michigan’s governmental immunity statute immunizing employees against lawsuits unless a jury could find gross negligence. The judge also ruled ABC was more than 50% responsible for his injuries, prohibiting an award of damages.
A three-judge panel of the appeals court reversed that decision in an Oct. 23 opinion. The court didn’t directly address the question of whether there was evidence of gross negligence, as opposed to ordinary negligence. Gross negligence requires “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”
In this case, the driver said she checked her mirrors before turning and didn’t see ABC on his bike, but plaintiff expert Timothy P. Robbins said she would have been able to see the boy in her mirrors. Model jury instructions in Michigan say if the jury can assign a higher level of care when a child is in the vicinity.
Because the driver “did not know where ABC was when she decided to turn, but she knew he was in the area, she was required to exercise greater vigilance,” the appeals court said, leaving it to the jury to decide what level of negligence occurred.
The panel consisted of Judges Sima G. Patel, Michael J. Kelly and Kristina Robinson Garrett.
