As Halloween approaches, a parent’s pleasure while watching their precious children during the trick-or-treat tradition must be tempered by concerns for their childrens' safety. As our kids frolic through the neighborhoods dressed as goblins or ninja’s, they are exposed to the dangers of passing automobiles. It is impossible to forget the horrific headlines that report the death or serious injury of a small child who while darting to his or her destination becomes the victim of a bone-crunching collision with a car’s steel fender.
In Tennessee, parents faced with the trauma and huge medical expenses of these events will oftentimes seek the advice of a qualified personal injury lawyer. Having counseled Mom’s and Dad’s who are in this impossible situation, I have come to realize that many of our neighbors don’t understand our law that is designed to balance the future needs of our children with the responsibilities of adult drivers. How many times we all heard it said that: “There is nothing that we can do about this crash….Johnny or Susie was walking next to the curb wearing a dark costume when the accident happened.” As with all things in the law, there are few absolutes and each factual situation must be evaluated individually.
In 1997, our courts decided a case involving a pedestrian who was wearing darkly colored clothes when struck by a car. In Lowery v. Franks, a Jackson, Tennessee adult, James Franks, was walking along the side of an unlit road when he was struck by a car being driven by Emily Franks. Mr. Franks was wearing darkly colored clothes at the time of his death and Ms. Franks testified that she could not have seen Mr. Franks due to this fact and the lack of lighting adjacent to the roadway. The court dismissed the case saying that Ms. Franks could not be held liable for killing a man that no one could have seen under this set of facts. In other words, that Mr. Franks contributed to his own death by choosing to walk down the side of the road dressed in such a way that he was invisible to others in the darkness that night.
However, in my opinion, this result might well have been different had Mr. Franks been a 4 year old child. Generally, in Tennessee the fault of the Plaintiff (the injured party) is compared to the fault of the Defendant (the party who injured the Plaintiff). When the jury makes this comparison, the Defendant’s fault must exceed the fault of the Plaintiff. In other words, the driver of a car in the situation discussed in this article must be 51% or more at fault as compared to any fault of the pedestrian. But, and this is a huge but, if the injured person is a 4 year old child and suit is brought in his or her name, then the child’s fault can not be compared to that of the at fault driver. In Leach vs. Metro Nashville, the Court in 2002 instructed us all that in Tennessee a child of such tender years is presumed by the law to be incapable of being negligent. Therefore, no comparison can be made in this fact pattern.
While we all want our children to enjoy their tender years, there is not a person among us who would wish a crippling and costly injury on a child. The corollary to this hope is that no one would wish such a crushing financial and emotional burden upon any parent. Sadly, these events occur when a strip or two of reflective tape this Halloween can help avoid a tragedy. However, when all else fails, parents do have legal recourse to protect the most important resource that a child can possess: his or her future.
