BRUCE YOUNGBLOOD, A MINOR, BY AND THROUGH BEATRICE PELLETIER, HIS NEXT FRIEND, AND BEATRICE PELLETIER, INDIVIDUALLY, APPELLANTS,
v.
BOWMAN TRANSPORTATION, INC., AND WILLIAM EDGAR BICHARD, SR., APPELLEES
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A 12-year-old bicyclist was struck by a tractor-trailer at a school crossing. While the child was contributorily negligent in running a stop sign, the court reversed summary judgment for the defendants, holding that evidence of the driver's excessive speed in a school zone could support a gross negligence claim to which contributory negligence is not a defense.
The court held that a jury could reasonably conclude the defendant was guilty of gross negligence based on evidence he drove a 55-foot tractor-trailer at 40 miles per hour through a marked school crossing with visible children present, potentially during the 15-mile per hour speed limit period. The last clear chance doctrine does not apply because the defendant did not know of the child's peril.
[1] A jury may consider gross negligence when evidence suggests a defendant's actions, such as speeding past a school crossing with children present, could be deemed reckless…
[2] Contributory negligence is not a defense to a claim of gross negligence.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We think that a jury of reasonable persons could conceivably conclude that if Bichard were driving a tractor-trailer at least 55 feet long past an intersection marked as a school crossing, where children were visible in the vicinity, at a speed of 40 miles per hour, that he was guilty of gross negligence.”
Establishes the court's holding that gross negligence could be found based on the defendant's conduct, distinguishing it from ordinary negligence which would be barred by contributory negligence.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBruce Youngblood, age 12, rode his bicycle past a clearly visible stop sign into the rear of a tractor-trailer driven by William Bichard at an interse…
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Green v. Kersey, Fla.App.2d 1966, 189 So.2d 236, supports partial summary final judgment in this case but not the final disposition in favor of defendants from which this appeal is taken.
In Green v. Kersey, the contributory negligence of a bicyclist in running through a stop sign into the path of defendant’s car was sufficiently shown as a matter of law to warrant a directed verdict for the defendant. In this case it is clear that Bruce Youngblood, age 12, was negligent as a matter of law in running his bicycle past a clearly visible “Stop” sign into the rear portion of a tractor-trailer driven by defendant Bichard.
There is in this case, however, evidence that the street on which defendant was traveling carried a clearly visible sign indicating that it was a crossing for school children, that children were visible in the vicinity, and that the time during which the intersection was in such use extended to 3:30 p. m. The exact time of Bichard’s passage through the intersection is in dispute, but some evidence would place it within the period during which a 15-mile per hour speed limit prevailed. Bichard put his speed at 25 miles per hour, and ultimately a jury may think this truthful, but one of the juvenile witnesses estimated his speed at 40 miles per hour.
We are thus confronted with the question whether plaintiffs allegations of gross negligence, to which contributory negligence would not be a defense,1 might possibly reach a jury. We think that a jury of reasonable persons could conceivably conclude that if Bichard were driving a tractor-trailer at least 55 feet long past an intersection marked as a school crossing, where children were visible in the vicinity, at a speed of 40 miles per hour, that he was guilty of gross negligence.2
Appellants would persuade us also that last clear chance affords an avenue of recovery. This contention is without merit for reasons which will be apparent upon a closer reading of the case cited to us at argument3 and a comparison of it with this one. There the defendant saw the plaintiff’s peril; here Bichard did not. Indeed, the appellants’ brief states that Bichard “didn’t seem to know of the accident until he was stopped at approximately 3:40 p.m. some 43^-5 blocks from the scene of the accident.” 4
Accordingly, we reverse and remand with directions to vacate the final summary judgment for defendants and to enter partial summary final judgment confining the issue to be resolved to the gross negligence of defendants.
LILES, J., concurs.
PIERCE, C. J., concurs in conclusion.
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- Glaab v. Caudill, 236 So. 2d 180 (Fla. 2d DCA 1970)
- Royce D. Johnson v. Rinesmith, 238 So. 2d 659 (Fla. 2d DCA 1969)
- Green v. Kersey, 189 So. 2d 236 (Fla. 2d DCA 1966)
- Carlson v. Viktor Frengut (Fla. 4th DCA 2022)