Summer is well underway, and school is out for elementary, junior and senior high school age children. The summer means more kids on bikes, skateboards, and on foot (plugged into their smartphones). It also means an uptick in young people learning to drive. All of these things increase the potential for injuries to children. For drivers, this means you need to tune up your “kid radar” and drive defensively with a view to doing your part to ensure their safety and to protect yourself against liability.
In Alberta, ss. 185 and 186 of the Traffic Safety Act create a reverse presumption against drivers, such that if there is a collision between a motorist and a non-motorist (for example, a collision between a car and a child walking or on a bike), the onus is on the driver of the vehicle to prove that the accident did not arise solely because of their negligent operation of the vehicle. This is of significant importance when a personal injury claim is brought on behalf of a child who has been hit by a car.
Safety Tips for Alberta Drivers
Drivers are frequently found to be negligent for failing to take effective preventive or evasive actions to avoid a collision with a child. In the summer months, in particular, drivers should always:
- Be aware of their surroundings, and on alert for children in the area;
- Assume that children will be in certain areas, such as near schools, playgrounds and parks, and take extra care;
- Be vigilant in areas where older children are known to “jaywalk” – for example, where crossing over to a popular shopping mall;
- Slow down if children are present and obey all of the rules of the road, including speed limits, traffic signals and the duty to yield the right of way to pedestrians and cyclists,;
- When backing out of the driveway or leaving a garage, make sure that there are no children or pets behind the vehicle, and watch for children walking, biking and skateboarding;
- Don’t drive distracted. Turn off the music, turn your cell phone off and put it away, and don’t reach for that coffee or papers;
- Remember that in the last few days of school the children may be arriving or leaving at different times than usual throughout the day, and extra care must be taken;
- Remember that the end of school is an exciting time for children and they may be preoccupied and forget the rules of the road.
Safety Tips for Alberta Parents
To safeguard your children, teach them the safety basics, such as:
- To make eye contact with drivers before they cross the road, even if the walk signal is on;
- To walk, not run, across the road;
- To walk their bicycle, not ride it, when crossing the road;
- Not to jaywalk: to cross at marked crosswalks and at pedestrian crossing lights;
- To watch for cars that are backing up;
- To not take unnecessary shortcuts, such as walking through a parking lot or between parked cars;
- To take care not to play in or around vehicles.
Street-proofing your kids (in the traffic safety sense) is important not just for their well-being, but also to defend against claims of negligent supervision if the worst case scenario happens and your child is hit by a car or other vehicle.
Negligent Supervision – An Illustration
In a famous case from the Supreme Court of Canada in the late 1970s, a young child, with the permission of her mother, ran to buy an ice cream from an ice cream truck that had entered her street. After she had bought her cone, she darted out onto the road and was struck by a passing vehicle.
An interesting aspect of this case is that the child’s mother was involved in the lawsuit as a defendant, based on an allegation of negligent supervision of the child. It was argued that the mother should not have allowed such a young child to run unsupervised to purchase the ice cream. While this argument was ultimately unsuccessful, this case illustrates that in situations where young children are injured, there may be legal consequences for the parents. It is fairly common when a young child sues to recover damages for injuries for there to be a claim of negligent supervision brought against the parents. Another example of this is this recent British Columbia case.
Kids and Traffic Safety Responsibilities – Shared Liability
And what of the children themselves? Can they be held to be wholly or partly responsible for their own injuries? In a lot of cases, the answer is yes. A lawsuit brought on behalf of the injured child can be completely dismissed if the Court finds that there was nothing that the driver could have done to avoid the collision, such as in this Alberta case. In many cases, the child is found to be partly to blame. The Supreme Court of Canada has held, however, that very young children cannot be held to be blameworthy in these circumstances and the defendants must bear the full weight of liability.
Personal Injury Claims and Minors (Children under 18)
For the most part, personal injury claims for children in Alberta are very similar to personal injury claims for adults. A few notable exceptions are as follows:
- Under the Limitations Act, the usual limitation period for bringing a personal injury lawsuit arising from a motor vehicle collision is 2 years from when the collision occurred. When a minor is involved, however, the 2 year limitation period does not start to run until the child turns 18, unless the at fault party takes certain specific steps to start the limitation period running before the child turns 18;
- Someone under the age of 18 cannot bring a civil lawsuit on their own. Where a personal injury claim is started on behalf of a child, an adult (usually a parent or some other family member) must be appointed as a Litigation Representative for the child;
- In most circumstances, when a settlement agreement is reached in relation to the personal injury claim of someone who is under the age of 18, the settlement agreement is not actually finalized unless it is recommended by the Alberta Public Trustee’s Office and approved by the Court.
Note: This blog post was originally published in June 2017 and has since been updated with relevant content