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Driver files suit against parents over child's death

Original post made on May 29, 2013

An East Palo Alto driver who fatally hit a second-grader in 2011 filed a counter-lawsuit against the child's parents on May 6, according to papers in San Mateo County Superior Court.

Read the full story here Web Link posted Tuesday, May 28, 2013, 10:30 PM

Comments (36)

Posted by neighbor
a resident of Another Palo Alto neighborhood
on May 29, 2013 at 8:46 am

Let me get this straight: YOU strike someone - a child - with your car, and that person is in a marked street crossing, and then YOU get to sue the parents of the victim?! This country is sue-happy and I hope there is some way the judge can throw this suit out. Grasping at straws to argue that there should be flashing beacons at the crossing - most street crossings don't have this feature, yet they are deemed legally street crossings with enforcement of all attendant traffic laws, as would be expected.
Talk about not accepting responsibility for your actions - wow.

Posted by Another neighbor
a resident of Another Palo Alto neighborhood
on May 29, 2013 at 9:05 am

I have great sympathy for the family who lost their daughter, but it can't be allowed that you let your child run ahead of you and out into the street and into the path of moving traffic - marked crossing or not.

There has to be some common sense here. Parents walking with their children must prevent them from doing something potentially dangerous such as stepping into a crosswalk when a car can't possibly stop in time.

Crosswalks still need to be crossed intelligently, making sure that the drivers have stopped for you before stepping into the street makes perfect sense.

Posted by Wondering?
a resident of Another Palo Alto neighborhood
on May 29, 2013 at 9:16 am

If the crosswalk is that dangerous, perhaps parents should walk across the street with their children, to make certain that they cross when it is safe.

Posted by mikesonn
a resident of another community
on May 29, 2013 at 9:35 am

I'm disgusted by Another neighbor's & Wondering?'s comments.

If you are blinded by the sun and can't properly operate your motor vehicle, you need to pull over and stop until it is safe to drive. No amount of victim blaming will bring back this child because of the selfish act of driving when it is unsafe to do so.

Posted by Janet L
a resident of Mountain View
on May 29, 2013 at 9:41 am

This is a really low blow to sue parents who have lost a child who was walking in a crosswalk on her way to school.

To everyone who drives through school zones: your desire to shorten your commute is not more important that a child's need to get to school alive. It's a school zone. Slow down! Expect that kids will be unpredictable. If you don't like slowing down, take another route.

Posted by Dave
a resident of Barron Park
on May 29, 2013 at 9:54 am

Lawyers at work. I promise you this counter suit was a pure defensive move by her lawyer. Lets ID the scum correctly

Posted by Brad
a resident of another community
on May 29, 2013 at 10:26 am

The most troubling portion of the article is the fact that the DA chose not to press charges on someone who was operating a motor vehicle while blinded by the sun near an elementary school at a time during which she was fully aware that children were arriving. If residents claim that a certain crosswalk is dangerous, why would the city not put up a stop sign? What's the rationale here? Should it not be safe to have kids walk and bike to school in a neighborhood such as this one? How about we start with ideas like, "no personal motor vehicles within 1 mile of a school," and work our way back to something reasonable. It's clear that right now we have a public opinion of no pedestrians within 1 mile of a school.

Posted by voltairesmistress
a resident of another community
on May 29, 2013 at 10:31 am

I agree with mikesonn's comment: if you are driving and can't see, you must pull over. "The sun was in my eyes" is not a valid excuse. The city is failing its citizens by not prosecuting the driver for negligence. The driver's counter suit reflects her sense of entitlement - the "I can keep driving on a any road no matter my risk of endangering others" mentality. What a creep! Sadly, pretty typical of an entitled class - drivers.

Posted by Another Neighbor
a resident of Another Palo Alto neighborhood
on May 29, 2013 at 11:16 am

I really don't think the parents of the child should be sue, absolutely.

The fact that due to the parents are probably blaming themselves for the death of their child and will do for the rest of their lives is understandable.

Also, the driver will also have the death of this child forever on her conscience. To say that she should expect a small child to run out when she is unable to do anything about it, with or without the sun in her eyes, is exactly the same thing as a parent not holding a child's hand as they cross the street because streets tend to have vehicles coming.

We must do a better job of teaching pedestrian safety. Streets have vehicles and a small child possibly running out when they can't be seen is a danger to the child.

Is it better to be safe than dead? Is it better to be cautious and wait before crossing until traffic is stopped or take a chance and cross without due care and attention? We are all responsible for teaching our children to be safe and how to cross the street safely is as important as to not accept candy from strangers or how to use a sharp knife.

I'm all for improving crosswalks. But, improving crosswalks is not a cure for bad pedestrian behavior.

Again, my sympathies for the family of the child and also for the driver who will also have to live with this forever.

Posted by WTF
a resident of Another Palo Alto neighborhood
on May 29, 2013 at 11:40 am

If I were on a jury, and *heard* that this driver had the audacity to sue the parents when the child was in a crosswalk (and had right of way), I wouldn't need to hear much else to return a guilty verdict for this driver. This is the stupidest action I've heard of in a while.

Posted by WTF
a resident of Another Palo Alto neighborhood
on May 29, 2013 at 11:43 am

The city doesn't sue drivers -- it doesn't have a prosecution department. The San Mateo County District Attorney made the decision not to sue.

Posted by MrEricSir
a resident of Barron Park
on May 29, 2013 at 11:46 am

If you're "blinded" for any reason while driving, there's only one safe thing to do: STOP.

Posted by Hmmm
a resident of East Palo Alto
on May 29, 2013 at 12:14 pm

The only part of this I like is that the City is being sued. This may be what it takes to fix these sorts of crossings in town, since the investigation revealed that the crossing was just fine. We need to spend the money & the time to ensure as much pedestrian safety as possible in this town. Does anyone else recall seeing the "People Behaving Badly" news segment last year filmed in EPA? The disregard for pedestrian safety & how to drive near a school were shocking.

Posted by Janet L
a resident of Mountain View
on May 29, 2013 at 12:16 pm

@Another neighbor There's nothing in the story that says the girl ran out into the street. The story said she was 5 to 6 feet into the roadway in the crosswalk with her parent behind her.

Why do you assume there was nothing the driver could do about it? She could have slowed way down, especially if her visibility was compromised, something she admitted herself.

I'm definitely for teaching people on foot to cross with care. But that doesn't mean drivers are not responsible for the damage they cause. Drivers need take more responsibility because they are piloting lethal weapons.

Posted by Wayne Martin
a resident of Fairmeadow
on May 29, 2013 at 2:00 pm

For what it's worth--using the 2009 SWITRS data for East Palo Alto:

| count(*) | primary_rd | secondary_rd |
| 3 | CLARKE AV | BAY RD |
| 1 | RT 101 | WILLOW RD |

There were a total of 135 accidents in EPA reported to the CHP during 2009--none at Bay and Gloria. Of course, it would pay to look back for the past ten years, or so, to see what the total number of accidents occurred at this intersection.

Posted by Reality Check
a resident of another community
on May 29, 2013 at 3:43 pm

The problem is that juries tend to sympathize and identify more with drivers than pedestrians or bicyclists, so DA's don't even bother trying to get a conviction against a driver unless there's something egregious that even a driver-biased jury will find inexcusable.

Bay Citizen recently published a great story about this -- and even features the EPA crosswalk death which is the subject of this story:

Bay Area drivers who kill pedestrians rarely face punishment, analysis finds
Web Link

Posted by Ridiculous
a resident of East Palo Alto
on May 29, 2013 at 4:03 pm

Completely ridiculous. It should be the other way around. Hello you are supposed to look 4 ways, and slow down in school areas or neighborhoods. She should considered herself lucky that she is not in jail.

Posted by Jason
a resident of Old Palo Alto
on May 29, 2013 at 4:27 pm

Holy cow, somebody is testing Karma!

Posted by Dan
a resident of Southgate
on May 29, 2013 at 5:11 pm

In most countries in Europe, the driver probably would have been charged with manslaughter, or at least been found civilly liable. They take crosswalks much more seriously over there. However, the laws are essentially the same: a pedestrian in a crosswalk has the right of way. Period. It doesn't matter if the sun is in the driver's eyes, the person is a child (shorter, harder to see), or if they entered the crosswalk to quickly. A driver is responsible for observing people on the sidewalk that may enter the crosswalk. I think this driver wasn't charged because she's a nice, older woman, a school teacher, and much loved and respected in the community. But that's not really a defense. Neither is the lack of a stop sign or flashing LED lights. This driver drove through this crosswalk every day for decades. Would the driver have been charged if if they were an ex-con, drug-dealing scumbag? Shouldn't the law be applied uniformly?

Posted by musical
a resident of Palo Verde
on May 29, 2013 at 5:34 pm

>> ". . . a pedestrian in a crosswalk has the right of way. Period."

I know a marked crosswalk across Oregon Expressway at Waverley where you can try this out. I suspect if you stepped off the curb into rush hour traffic, there would be a string of rear-enders and you would be held responsible. Or maybe not. I don't know.

Posted by seen my share
a resident of Another Palo Alto neighborhood
on May 29, 2013 at 8:38 pm

These things are almost never about what is really at issue. Usually the impetus for the way suits are waged has to do with insurance companies, but no one is allowed to say that. It's actually illegal to bring it up in court. But insurance companies, coverage provisions, avoidance of liability -- those are usually driving what happens legally.

I mean, I don't know that this is what's going on here, but just an example of how these things go, here's a typical: poor family loses a child, sues to cover medical and/or funeral expenses, lawyer includes a much large suit for emotional distress to pay for attorney fees (that's frankly what emotional distress damages usually go for), insurance company for the defendant has a duty to pay to defend and is a deep pocket for dizzyingly expensive legal fees and typical strategy that draws things out to both milk those fees and wear down the plaintiff by causing as much emotional distress to already hurt people as possible. Other parties get drawn in to spread out the insurance load as much as possible, but by then, the insurance company strategies have taken over and everything that happens from then on has to do with policy limits, what they can get away with, attorney fees, etc, and very little to do with what's right.

Posted by some guy
a resident of another community
on May 29, 2013 at 8:40 pm

I always wait for all the cars to go by before using a crosswalk, because I don't like to depend on drivers to see me and stop for me. However, it's clear that the person in the crosswalk has the right-of-way and the driver is obligated to stop for them. If you hit someone in a crosswalk, for whatever reason, it's your fault. If I was on the jury for this one, I'd be annoyed.

Posted by Hmmm
a resident of East Palo Alto
on May 29, 2013 at 8:42 pm

Seen my share -if it was the driver's insurance company suing, wouldn't the article say that? I used to know the answer, but I forget, or the law has changed. IIRC, if an insured driver gets sued, it goes through their insurance company, no? But what about a driver suing a pedestrian - are you saying her insurance company is really behind this?

Posted by Outside Observer
a resident of another community
on May 29, 2013 at 9:41 pm

For any situation, when common sense leaves, lawyers rush in to fill the void and line their pockets.

Who's to blame? We are, because as a society we didn't take Shakespeare's advise about lawyers.

Posted by Mary
a resident of Meadow Park
on May 30, 2013 at 1:40 am

A cross walk is not a magic shield. Vehicles take longer to stop than pedestrians so pedestrians should not run into crosswalks. If this crosswalk was known to be dangerous, then all the more reason for the mother to keep her child in check. Losing a child is sad for the family, however blaming the driver for their own negligence will not bring the child back. Nor will any financial award. We need to stop assuming that drivers are always to blame. Pedestrians and cyclists need to use commonsense and understand that vehicles can't stop on a dime.

Posted by Alphonso
a resident of Los Altos Hills
on May 30, 2013 at 7:17 am

Mary- A crosswalk is a safe zone for pedestrians and if you do not stop you are at fault, period!. Of course pedestrians need to be careful but only because some idiot drivers are not paying attention. It is really no different than failing to stop at a red light and causing an accident - sure you can conjure up an excuse but you are still at fault. I walk 4-5 miles a day and I have been nearly hit in crosswalks a number of times - in each case the driver ended up being the loser because my reaction has been to leave an dent in the side of their car with my foot. Consider that the next time you approach an occupied crosswalk.

Posted by Wu Tang
a resident of Downtown North
on May 30, 2013 at 7:31 am

You can sue for anything in this country. it does not mean you will win.

Posted by D.Johnsen
a resident of Old Palo Alto
on May 30, 2013 at 9:17 am

[Post removed by Palo Alto Online staff.]

Posted by Attitudes
a resident of Downtown North
on May 30, 2013 at 2:37 pm

Crosswalks SHOULD be a safe place for pedestrian to cross. They are not because drivers dont respect them anymore. We blame the victims and apologize for the perps, which makes this attitude worse. The solution is to aggressively punish those who break the law, especially if someone is injured or killed. That is the only way to get drivers to respect crosswalks and pedestrians again.

Posted by musical
a resident of Palo Verde
on May 30, 2013 at 6:14 pm

A crosswalk is not a blank check, e.g. when the traffic light is red for the pedestrian and green for the motorist. Also it is illegal for a pedestrian to maliciously impede the flow of traffic, even while standing in a crosswalk. I know the crosswalk discussion here is about more rational situations, but there's still a gray area where the pedestrian has some duty to act rationally upon a public highway.

Of course regarding children, expectations go out the window, so this case is a wake-up call. Drivers are accepting a huge liability when we turn that key.

Posted by Downtowner
a resident of Menlo Park
on May 30, 2013 at 8:02 pm

Why do some posters say that the child ran into the street? How do you think you know that? The child may well have been walking. Many children cross streets by themselves & should be able to do so. Not all parents have the luxury of being able to walk their children to & from school.

The teacher got very lucky & the suit by her or her insurance company is offensive & wrong. [Portion removed by Palo Alto Online staff.]

Posted by Hmmm
a resident of East Palo Alto
on May 30, 2013 at 8:13 pm

Musical, IIRC from reports when this first happened, the parent, little one & older child entered the crosswalk because it was safe. Then, the driver is speeding toward her job, her vision impeded by the sunlight and she hits and kills the little girl. It'll be interesting to see what happens in this tragic case.

I know what you're talking about but I don't think it happened in this case. I did almost hit a woman today on ECR who walked against 2 redlights. While I watched her after the near miss, and the near miss with the driver behind me, it was clear she wasn't in her right mind - you can't be to cross 2 sides of ECR on against the red.

Posted by Attitudes
a resident of Downtown North
on May 30, 2013 at 9:52 pm

The articles that I have read said that the mother was holding the hands of two younger children while the oldest walked ahead by a few steps. This is not negligence or carelessness, unless you think she should have grown a third arm. STOP BLAMING THE VICTIM AND PUNISH THE PERP! This lawsuit should be thrown out immediately.

Posted by musical
a resident of Palo Verde
on May 31, 2013 at 1:10 pm

Hmmm, I'll agree, sounds like the poor judgement in this case was the driver's. We'll read about what happens in court. And there will be public outcry if it's felt that justice is not served.

My earlier comments were in response to those who feel the pedestrian is always correct and the driver is always at fault. I do understand that pedestrians see plenty of bad driver behavior, and drivers see plenty of poor pedestrian moves, and nobody understands bicyclists. Everyone has their point of view, and it's their right.

Aside -- peculiar story yesterday in Vallejo that some pro-active guy got arrested for getting fed up with drivers and spray-painting a previously unmarked crosswalk at a busy intersection -- Web Link

Posted by Another neighbor
a resident of Another Palo Alto neighborhood
on May 31, 2013 at 1:29 pm

I wasn't at the scene so I can't comment on exactly how the accident happened. I remember reading all the articles and comments at the time.

Let me comment now not on this particular case, but on what I have seen happening at many school commute intersections.

Cars park very close to crosswalks. When an adult steps off into the crosswalk they can usually be seen because they are tall enough that drivers can see them above the parked cars. A small child is not taller than the car and they cannot be seen. Therefore they are two or three feet into the crosswalk when they can be seen by drivers.

Drivers in cars near schools in commute times are quite often parents, student drivers or school staff. They are in a hurry to get themselves or their child to school. Many of them are busy looking for a parking space. There are many, many pedestrians, and people on bicycles, all paying attention to getting to school more than watching traffic rules. Cars open doors, cars backing out of driveways, people riding bikes on sidewalks, people with strollers, toddlers on trikes, dog walkers and joggers are all producing hazards for everyone to negotiate safely. And yes, in the morning the sun can be a problem, which if one driver stops because they can't see doesn't help as another car will only try to overtake to get ahead.

In other words, parents walking their children to school need to be super cautious, holding hands of children and if they have more that two children then the children should be holding hands with each other. Children should not be several paces ahead of the parent. The adult should stop at the sidewalk and wait until the moving traffic has stopped for them to cross. Traffic should be alert and looking out for pedestrians, but pedestrians should be predictable too. If a child is unlikely to be predictable, that child should be holding an adult hand. If a child is too young to walk to school unaided, then the child needs to be in the responsible care of an adult pedestrian.

And ultimately, parents are the ones who are responsible for their children's safety in getting to school. They should be watching and teaching their children how to be predictable pedestrians. Allowing them to cross a busy intersection on their own and expecting a safe outcome is not a good way to teach them traffic safety. Traffic safety needs to be taught, not assumed.

Lastly, of course as drivers we are all expected to treat school zones with respect. As humans, there are times we make a mistake and fortunately for most of us the mistake is not fatal. As parents walking our kids to school we should expect the unexpected just as much as drivers should expect the unexpected.

Not blaming the victim, just asking for us all to take a little bit more responsibility for the safety of ourselves and our children when we take them to school, whether they be in a car, on a bike, or walking.

Posted by Mean momma
a resident of Crescent Park
on May 31, 2013 at 1:53 pm

Not a comment on this tragic case but in the last few days, I have twice observed situations in which parents (one father, one mother) were essentially ignoring a small child, maybe 3 or 4 years old, who was running around a busy parking lot. I guess some parents assume that everyone else should be watching out for them, but drivers don't expect to see small people darting around. My kids are old enough and savvy enough to cross streets without help, but I'll still grab them if there's a lot of traffic. I am surprised there aren't more accidents involving kids. Driving is stressful enough without having to worry about hitting a stray child.

On a different but somewhat related topic: East Palo Alto has installed a lot of those green blinking crosswalks. The problem is that they stay lit for a long time after the pedestrian has disappeared down the street. The result: drivers are confused, and I have started to see more and more drivers just blowing through those crosswalks. So a measure that was implemented to enhance safety is actually having a negative effect.

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