Heightened Duty of Care Explained in Car-Bicycle Case – Whitmore v. Brown

A recent West Virginia Supreme Court case concerning an accident in which a boy on a bicycle was hit by a car provides a good reminder of the enhanced legal standard that drivers are held to in accidents with children.

shadow-of-the-past-1432188-s.jpgJ.V. was 11 years old when he was in injured in the accident. The boy had taken the bike out – without his mother’s permission, according to the Court – to 19th Street in Huntington when he collided with a car driven by Ms. Brown. In a police report created following the accident, the investigating officer concluded that J.V. may have caused the crash by failing to obey a stop sign.

J.V.’s mother (Ms. Whitmore) later sued Brown for negligence, arguing that Brown was responsible for the crash and seeking money damages. Whitmore produced an affidavit from a local woman who claimed to have witnessed the accident. Ms. Flanagan stated in the affidavit that Brown hit J.V. as he was attempting to cross the street on which she was driving and continued driving after colliding with the boy.

In a later deposition, Flanagan testified that she actually hadn’t seen the crash happen. Instead, she said she was walking nearby at the time and looked up after hearing the crash. At that point, she said she noticed a boy lying in the street. She added that she left the scene after seeing people rush to aid the boy and hearing sirens. Shortly thereafter, Whitmore filed a written declaration by J.V. in which the boy claimed Brown hit him as he was attempting to cross the street on which she was driving. He said he’d had to stop in the middle of the road because another driver had failed to slow down and allow him to pass.

A trial court eventually granted Brown’s motion for summary judgment, agreeing with Brown that Whitmore didn’t produced any evidence indicating that Brown was responsible for the crash. The Supreme Court affirmed the decision on appeal.

Drivers in West Virginia are generally expected to operate their vehicles in a reasonably safe manner and to avoid various dangerous activities, like speeding or using a cell phone. This is called a “standard of care,” and a driver who fails to live up to it is likely to be liable for negligence in the event that he or she causes an accident.

Here, the Court explained that state law held Brown to an even higher standard because the accident involved a child. “The vigilance and care required of the operators of an automobile vary in respect of persons of different ages or physical conditions,” the high court explained in 1914 in Deputy v. Kimmel. “He must increase his exertions in order to avoid danger to children, whom he may see, or, by the exercise of reasonable care should see, on or near the highway.”

In this case, however, the Court said there simply was no evidence to show that Brown didn’t live up to this heightened standard. It noted in particular that the investigating officer said he’d found no indication that Brown breached the standard of care.

If you or a loved one has been injured in a car crash or other accident in West Virginia, the Wolfe Law Firm can help. Our auto accident lawyers have been serving clients throughout the state for more than 25 years. Located in Elkins, West Virginia, the firm represents clients in a wide range of injury, criminal defense, and bankruptcy matters. Call us at 1-877-637-5756 or contact us online for a free consultation.

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