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Tort Law - NEGLIGENCE - Contributory negligence - Contributory negligence of parent of child

Thursday, January 12, 2017 @ 7:00 PM  

Appeal by the defendants from judgment finding the defendants liable and the plaintiff Dean not contributorily negligent for personal injuries. Dean was badly injured when struck by a car while crossing a busy street in the City of Hamilton (Hamilton) on his way to school. He was almost 10 years old at the time. Hamilton staffed the crosswalk where the accident occurred with a crossing guard between 8:20 AM and 8:40 AM on school days. The crossing guard was not on site when Dean crossed the road. The trial judge found that Dean had crossed the road during the period of time when the crossing guard should have been present, but was not. He also held that Dean was not contributorily negligent. The City contested these findings.

HELD: Appeal dismissed. The trial judge made no palpable and overriding error of fact or of mixed fact and law, nor did he err in law, in finding that the accident occurred within the relevant time period or in failing to hold that Dean was contributorily negligent. There was ample support in the record for the trial judge’s findings and conclusions regarding the timing issue. The trial judge did not err in law in failing to conduct the type of analysis of the evidence that he was mandated to do. The trial judge was entitled to decline to make a finding of contributory negligence against Dean in the circumstances. The trial judge’s finding that it could not be said that Dean was experienced in crossing busy streets was open to him on the evidence. The trial judge applied the correct legal standard of care, namely the standard of a reasonably prudent 10-year old of like intelligence and experience. The trial judge made no reversible error of fact or mixed fact and law in arriving at his findings and conclusions on the contributory negligence issue.