By: Heath Hamacher of NC Lawyers Weekly
A group of children injured while crossing a highway to board their school bus
Jay Kerr of Asheville reported that the students were struck by an SUV being driven by an elderly man who said that he failed to see the children crossing a dual-line highway in Brevard, despite the school bus’s flashing yellow lights. Many of the case’s details have been withheld pursuant to a confidentiality agreement.
The plaintiffs also claimed that the bus driver failed to keep a proper lookout for oncoming traffic and that he should not have deployed the stop arm without ensuring the children’s safety. The driver claimed that he tried to blow the horn to warn the children of the approaching SUV, Kerr wrote in an email, but footage from the bus’s dash camera suggests that the driver did not attempt to blow the horn until less than two seconds before the children were struck.
“[H]e also did not report the horn’s alleged failure to the investigating N.C. State Highway Patrol officer,” Kerr wrote.
Kerr represented an 11-year-old boy, a hemophiliac who suffered a skull fracture and subdural hematoma (a gathering of blood between the skull and the brain that can cause brain damage), and the boy’s sister, who suffered a nose fracture and a knee sprain. Both children have made full recoveries.
Kerr also advanced negligent infliction of emotional distress (NIED) claims on behalf of another sibling who was not physically injured, but suffered “great distress” seeing her brother and sister struck by a vehicle.
Brian Elston, also of Asheville, represented another preteen who was knocked unconscious and suffered a growth plate fracture to her thigh bone just above the knee joint. Elston also represented the girl’s teenage sister, who was uninjured but witnessed the event from just feet away. Elston also advanced NIED claims on the behalf of both clients, claiming that both girls suffered post-traumatic stress disorder. The girls have undergone psychological treatment and have fully recovered.
Kerr added that procedurally, since exclusive jurisdiction for negligence claims against the school board under direct negligence or respondeat superior theories would be with the N.C. Industrial Commission under State Tort Claims Act, the board could not be sued in civil superior court. The bus driver, however, was allowed to be sued in superior court, but solely in his individual capacity.