{"id":225399025,"date":"2012-02-22T18:50:25","date_gmt":"2012-02-22T18:50:25","guid":{"rendered":"https:\/\/wp.baltimorespokes.org\/?p=225399025"},"modified":"2012-02-22T18:50:25","modified_gmt":"2012-02-22T18:50:25","slug":"thoughts-on-liability-for-the-chesterfield-nj-school-bus-accident","status":"publish","type":"post","link":"https:\/\/wp.baltimorespokes.org\/?p=225399025","title":{"rendered":"Thoughts On Liability For The Chesterfield, NJ School Bus Accident"},"content":{"rendered":"

[B’ Spokes: Some legal issues on roads being dangerous by design, even for motor vehicles.]<\/em><\/p>\n

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from Litigation and Trial by Max Kennerly, Esq.<\/p>\n

…<\/p>\n

My suspicion is that the road design<\/strong> was likely a cause of this accident. The intersection of Bordentown-Chesterfield Road (County Route 528) and Old York Road (County Road 660), which can be seen on Google Maps<\/a>, is undeniably unsafe. There\u2019s no signal or stop light, and only one road, Old York, has to stop. It\u2019s not necessarily a problem when only one road stops; at least where drivers aren\u2019t distracted, we assume that drivers on Old York will obey the stop sign then look both ways before crossing, and that drivers on Bordentown-Chesterfield Road will slow down if they see someone cross in front of them.<\/p>\n

The problem is visibility.<\/p>\n

<\/span><\/p>\n

The New Jersey Road Design Manual instructs<\/a>:<\/p>\n

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Intersection designs should provide sufficient sight distances to avoid potential conflicts between vehicles turning onto or crossing a highway from a stopped position and vehicles on the through highway operating at the design speed. As a minimum stopping sight distance must be provided.<\/p>\n<\/blockquote>\n

In other words, when you design an intersection, make sure that \u201cvehicles turning onto or crossing a highway from a stopped position\u201d can see far enough on the cross street that they can tell if cars are coming, and \u201cvehicles on the through highway operating at the design speed\u201d can see cars crossing from far enough way to come to a stop if someone is crossing.<\/p>\n

There are two problems with the intersection here. First, the roads don\u2019t intersect at right angles, but rather what looks like 120\u00b0\/60\u00b0. If there\u2019s nothing obstructing visibility at all, that\u2019s more an annoyance than a hazard, but in this case the angles of the road mean that, even if a driver inches right up to the intersection and then looks perpendicular to their vehicle \u2014 as you can do at a 90\u00b0\/90\u00b0 intersection and see all the way down the road \u2014 they still may not see cars who are less than \u201cstopping sight distance\u201d away.<\/p>\n

Second, as you can see on Google Maps, visibility at the intersection itself is obstructed by numerous trees. My guess is that The school bus driver traveling northeast on Old York could barely see the dump truck heading southwest on Bordentown-Chesterfield, and vice versa. Bordentown-Chesterfield is a 45 mph road, so it\u2019s unlikely any cars approaching like that can see each other \u201cstopping sight distance\u201d away.<\/p>\n

Presumably the intersection (and maybe<\/em> the trees on its shoulder) are owned by the State of New Jersey or the Chesterfield township, and so their liability is defined by the New Jersey Tort Claims Act:<\/p>\n

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The New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, specifies the circumstances under which a public entity can be held liable for injuries to another. Generally, immunity for public entities is the rule and liability is the exception The exception relevant to this case is found in N.J.S.A. 59:4-2, which provides that public entities may be liable for injuries caused by a \u201cdangerous condition\u201d on the property of a public entity.<\/p>\n

A successful plaintiff under this subsection of the TCA must prove by a preponderance of the evidence that at the time of the injury the public entity\u2019s property was in a dangerous condition, that the condition created a foreseeable risk of the kind of injury that occurred, and the action the entity took to protect against the dangerous condition or the failure to take such action was palpably unreasonable. The term \u201cpalpably unreasonable\u201d connotes behavior that is patently unacceptable under any given circumstance.<\/p>\n

Within the TCA, a \u201cdangerous condition\u201d is defined as \u201ca condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.\u201d N.J.S.A. 59:4-1a. A dangerous condition under that provision refers to the \u201cphysical condition of the property itself and not to activities on the property.\u201d<\/p>\n<\/blockquote>\n

Wymbs v. Township of Wayne<\/a><\/em>, 750 A. 2d 751, 756 (N.J. 2000)(edited for clarity). (Regular readers will recall similar sovereign immunity \/ tort claims issues in my post about the Ashley Zauflik school bus accident in Pennsbury<\/a>.) In sum, the state government can be held liable for defective road design or maintenance if they were \u201cpalpably unreasonable\u201d in creating or allowing a \u201cdangerous condition\u201d to exist.<\/p>\n

The Wymbs<\/em> case is particularly relevant to this accident, because, as the Associated Press reported<\/a>, \u201cPolice have recorded 15 accidents at the same four-way intersection since 2007 \u2014 including a minor one on Friday.\u201d In Wymbs<\/em>, the New Jersey Supreme Court held that plaintiffs alleging defective road designs can use prior accidents as evidence at trial that the road had a \u201cdangerous condition\u201d as long as they meet two criteria:<\/p>\n

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We hold that prior accidents can be used to prove the existence of a dangerous condition on public property if the following threshold standard is satisfied: (1) the same or substantial similarity of circumstances between the prior accident and the one involved in the case on trial, and (2) the absence of other causes of the accident.<\/p>\n<\/blockquote>\n

Were the prior fifteen \u2014 and likely more if you go back further \u2014 accidents \u201csubstantially similar,\u201d and did they not have \u201cother causes?\u201d I bet that\u2019s true for at least a few of them, though those \u201cother causes\u201d raises another major issue: driver error<\/strong>.<\/p>\n

The driver of the school bus had both a stop sign and a blinking red light, while the driver of the dump truck had the right-of-way and a yellow warning light, so the driver of the school bus is presumptively at fault. And maybe he or she is; the initial burden of safely crossing an intersection falls on the person who entered into another driver\u2019s right of way. Even if \u2014 especially if \u2014 the intersection has limited visibility, the driver shouldn\u2019t cross until they can confirm it\u2019s safe to do so. I assume the NTSB will borrow an identical school bus, drive it out to the intersection, and assess just how much of the oncoming traffic the school bus driver could see.<\/p>\n

…
\nTruth is, all car accidents are in some way preventable, and so they are all tragedies<\/em> in the classic sense. That the victims were children makes it worse. That the accident was likely caused in part by a known, correctable flaw in the intersection itself makes it inexcusable.
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\nhttps:\/\/www.litigationandtrial.com\/2012\/02\/articles\/attorney\/automobile-accidents\/chesterfield-nj-school-bus\/<\/a>oldId.20120222185025847<\/p>\n","protected":false},"excerpt":{"rendered":"

[B’ Spokes: Some legal issues on roads being dangerous by design, even for motor vehicles.] from Litigation and Trial by Max Kennerly, Esq. … My suspicion is that the road design was likely a cause of this accident. The intersection of Bordentown-Chesterfield Road (County Route 528) and Old York Road (County Road 660), which can … <\/p>\n

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