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From the Plaintiffs' Perspective:
Noel is a single mother of 2 lovely children. Jasmine is a beautiful and bright 8-year-old girl. Jeremiah is her energetic 7-year-old little brother. Noel works as a software tester for a large finance company. Since working 8 to 5 everyday is her only source of income, she must rely upon a day care facility to care for her children during these hours.
In early 1999, Noel chose to enroll her children in Kidís Planet Learning Center. Kidís Planet was a national chain with a good reputation. It was close to her apartment, and several other children from Jasmineís and Jeremiahís elementary school went to Kidís Planet. This was important for Noel, because she wanted her children to have some friends at the day care to help make that environment comfortable for them. Kidís Planet also had a van that would take children to and from the elementary school. This was also important to Noel, because her work schedule prevented her from transporting the children to and from school.
Everything seemed to be working well. Noel had no complaints about the teachers. They were all friendly and seemed to care about the children. Jasmine and Jeremiah appeared to enjoy the day care and the interaction they received each day with their friends. And, the van was getting the children to and from their elementary school just fine.
On Thursday, April 27, 2000, things changed. The Kidís Planet van was driven by Keysha, a 28-year-old employee of the day care. That afternoon, she drove to the elementary school to pick up 6 children, including Jasmine and Jeremiah. The van she was driving was a yellow í95 GMC, large enough to carry 15 people. It has 2 front bucket seats, and 4 large bench seats in the back. The 6 children loaded into the van. Jasmine was 7 at that time, and Jeremiah was 6. The other children were 7, 8, 10, and 11.
Keysha began driving northbound on Forum Drive to another elementary school to pick up more children before returning to Kidís Planet. Forum dead-ends into Mayfield Road, where she can go left or right. Mayfield has 2 lanes going east and 2 lanes going west. There is no light at this intersection, only a stop sign at the end of Forum. Keysha got into the left-turn lane, intending to head east on Mayfield. When Keysha stopped at the stop sign, there was no traffic coming from her right. To the left, she saw a large orange school bus which was in the right-hand lane (lane nearest the curb). The school bus was signaling for a right turn onto Forum. Behind the bus, she saw a brown Ford Explorer, which she says was directly behind the school bus in the same lane. The driver of that Explorer, Mr. Alvarez, says he was not in the same lane as the school bus, but was instead in the left-hand lane and he had been driving in the left-hand lane for some time.
As the school bus began its right-hand turn, Keysha pulled out to make her left-hand turn. By the time Keyshaís van appeared in the intersection within the view of Mr. Alvarez, it was too late for him to do anything. He applied his brakes, but hit the van broadside, sending it toppling over onto its right side.
Mrs. Johnson, a witness who was waiting behind Keyshaís van in the green car, said she observed the Kidís Planet van pull into the intersection while the school bus was turning right. She remembers thinking to herself, "I canít believe that van is pulling out, because she canít see around that bus."
Several paramedic units were called to the scene to assist with all of the injuries. In addition to the 7 people in the Kidís Planet van, Mr. Alvarez had his wife and 2 children in his Explorer, so there were quite a few people for emergency personnel to evaluate and care for.
Keysha has testified that she made sure all of the children had on their seatbelts before beginning to drive away from the school. She says she did this by visually checking each child, and then again by asking "Does everyone have their seatbelt on?" before pulling away from the school. The paramedic records, however, explain a different story. The paramedic who completed the initial report on Jeremiah noted that he was an "unrestrained" passenger. A different paramedic completed the initial report on Jasmine. His report fails to identify whether Jasmine was "restrained" or "unrestrained". Given the nature of injuries suffered by both children, we believe it is evident that neither child was wearing a seatbelt at the time of the collision. We believe that Keysha simply reminded all the kids to put on their seatbelts, but never confirmed that fact visually.
We also believe that Keysha was in a big hurry, which means she probably didnít have time to check the seatbelts and also lead to her impatience in pulling out into traffic at the time she did. Keysha denies she was in a hurry, but she canít deny the time periods she has testified to. Keysha had to pick up children at two schools. Both schools let out at 3:20 p.m. She was at Jeremiah and Jasmineís school on time, but had to wait approximately 8 to 10 minutes for the children to come out of the school and load into the bus. One of the children had been detained in the principalís office, so she had to wait an additional 3 minutes more for that child to be escorted from the school to the bus. When she reached Mayfield Road, she says she waited in line at that intersection for another 5 to 6 minutes before attempting to cross. This means the children at the second elementary school have now been out of school for at least 16-19 minutes by the time Keysha starts her turn onto Mayfield. She has another 5 to 8 minutes to go before she would get to the second school. Under these circumstances, we believe it is evident that Keysha was in a hurry.
Jeremiah was taken by ambulance to Childrenís Medical Center where he was treated in the emergency room for complaints of head pain and leg pain. He had 2 loose teeth and a lacerated lower lip. He was also noted as having contusions (bruises) to his left ankle and his left arm. X-rays revealed a fractured left tibia (shin bone). His urine tested positive for blood, a sign of internal trauma. After several hours, his urine became clear. His leg was splinted, and he was discharged from the emergency room in a wheelchair. He was prescribed Tylenol with codeine for the pain and his mother was given instructions to have him follow-up with his dentist, his family physician, and an orthopedic specialist.
The orthopedic specialist discovered that Jeremiahís fibula (bone behind the shin bone) had also been fractured. He removed the splint and put Jeremiah in a long-leg cast. Although there was a 13-degree angular variation (i.e. his leg was not straight), the doctor decided not to do surgery, thinking that this variation will reduce to an acceptable amount as Jeremiah grows. Jeremiah was given crutches and instructed not to put any weight on the leg. He returned 3 weeks later to have the long-leg cast replaced by a short-leg walking cast. He wore this cast for another month before it was removed. At that time, he went another 3 weeks still using crutches with very limited activity. Now, a year later, Jeremiah has no limitations on his activities. Jeremiahís past medical expenses are $4,232, and there are no additional medical expenses anticipated in the future.
Jasmine was taken by a separate ambulance to Childrenís Medical Center. She was seen in the emergency room with complaint of a headache. Great concern was shown for a possible brain injury because Jasmine had admitted to the paramedics at the scene that she "fell asleep" after the collision. It is unknown for how long she lost consciousness. She was noted in the emergency room as having a large hematoma to her frontal lobe (a localized mass of blood under the skin above her left eye). She also had a large "black eye" on the left side which caused her eye to become swollen shut. She had lacerations to her lower lip due to the orthodontics (braces) on her teeth. She had abrasions to her left cheek and the left side of her neck. Fortunately for Jasmine, the CT scan of her head was negative, indicating no brain injury.
Jasmine followed up with her family physician. Although she sustained no lasting, permanent injuries, the abrasions on her face, her swollen lip, and her black eye remained evident for approximately 1 Ĺ months following the collision. Today, she has a full level of activity. Jasmineís past medical expenses are $2,288, and there are no additional medical expenses anticipated in the future.
Noel has brought this suit on behalf of Jasmine and Jeremiah. She has named Keysha as a defendant because she believes Keysha was negligent by carelessly pulling out into the intersection. She also believes Keysha was negligent for not insuring that the children were properly belted.
Noel has also named Kidís Planet as a defendant because in addition to being responsible for Keyshaís actions as her employer, she believes Kidís Planet is guilty of their own separate acts of negligence. Specifically, she believes Kidís Planet failed to have proper policies and training in place to insure that their van drivers were qualified to drive. When Keysha interviewed for the teaching job at Kidís Planet approximately 1 year before the collision, she was asked if she would mind driving one of the centerís buses or vans. At that time she said "that would be fine", but today she admits that she had no idea of the responsibility involved in driving such a large van capable of hauling 15 people. The largest vehicle she had ever driven before taking the job was a Jeep Cherokee. As for training, she was given a 4 hour driving course at another center which consisted of another teacher helping her drive around the neighborhood explaining the operations of the van and the procedures for picking up children. Keysha is a small young woman, only 5í tall, and admits that she was relieved when she returned to work 2 months after the collision and the center director told her she would no longer be required to drive the vans or buses.
From the Perspective of Defendants Keysha and Kid's Planet:
Kidís Planet has earned a reputation as one of the finest childcare facilities in this country. Kidís Planet earned this reputation because we value our children. The society we live in today has placed such a great deal of importance on money and success that sometimes the children become left behind in all of the hustle and bustle. More parents work outside the home than ever before, and the length of the average workday seems to get longer each year. We know that parents like Noel are doing their best to keep up, and that is why Kidís Planet does their very best to provide a safe and caring environment for children like Jasmine and Jeremiah.
Kidís Planet can never replace the love and affection that a parent provides, and we do not seek to replace the role of parents in todayís society. And although we are a corporation, which is something you usually donít think of as having feelings, please know that a corporation such as ours is nothing more than a group of people who each have feelings like any other person. When the people at our facility where Keysha worked learned that she had been in an accident with 6 of our children, they were all deeply concerned. And although there can really never be any good news that comes out of an accident like this, our people couldnít help but feel relieved and thankful that none of the injuries appeared to be life-threatening.
Keysha has been employed at Kidís Planet for 4 years. She has worked as the lead teacher for 2-year-olds during that period of time as well as accepting the responsibilities of driving the van. Nothing like this has ever happened to her before. She has a clean driving record, which is something Kidís Planet checks before they allow any teacher to drive one of the vans. After the accident, Keysha had to stay off of work for approximately 2 months due to her injuries. When she returned to work, she and the center director mutually decided that Keysha would not drive the van anymore. This mutual decision had nothing to do with Keyshaís qualifications to drive. She has always been a safe driver. The collision, however, has taken a toll on her confidence and her trust of other drivers on the road. She doesnít even like to drive her own car anymore. Under these circumstances, we felt it best for all concerned that Keysha take some time off from driving.
Before Keysha was given the responsibility of driving one of our vans, she completed a training course. The course not only consisted of "hands on" training with the driving and operation of the van, but it also included a written exam which Keysha had to pass before we would allow her to drive. Keysha passed the test just fine and showed nothing but confidence in her ability to operate a one of our vans. She had been driving the same route for almost a year before the accident, without a single incident.
On the day of the accident, Keysha was at the elementary school on Forum Drive picking up 6 children from that school. She parked in the front of the school and walked to the front doors where she was to meet the children at a designated location. 5 of the children came out and began to wait. A teacher explained that the 6th child was in the office and would be brought to the van by a teacher shortly, so Keysha walked the 5 children down to the van. She opened the passenger side doors and allowed the 5 children to get in. She then stepped up into the van through the passenger door and checked on each childís seatbelt. After checking each one, the 6th child was brought out and Keysha helped her into the van and checked her seatbelt once she was seated. Keysha then went around the van and got in the driverís seat and asked all of the children if their seatbelts were on. She did not pull away from the school until she was sure that each child was belted. Keysha has 3 children of her own, and she is just as safe with the Kidís Planet students as she is with her own children in her own car.
When Keysha reached the stop sign at the end of Forum Drive she made sure her van came to a complete stop. This is usually a busy intersection at this time of day and Keysha knows it can sometimes be difficult to get across because of all of the traffic. The City of Grand Prairie finally recognized that the intersection was simply too dangerous to cross with just a stop sign, so they installed traffic lights 3 months after this accident. Unfortunately for Keysha and these 6 children, it was 3 months too late.
The traffic to Keyshaís right had cleared, so Keysha began to focus on the traffic to her left. The traffic on the left had all cleared except for a large school bus and a Ford Explorer. They were both in the right lane. The school bus put on its right-turn blinker and began to slow down to make the turn. Keysha saw that the Explorer also appeared to be slowing down, so Keysha began to pull out. As the van crossed over into the second lane, Keysha saw that the Explorer was about to hit them. It happened so quickly and suddenly that there was nothing Keysha could do. She couldnít speed up and she couldnít stop to avoid the collision. The impact was inevitable.
Although Keysha did not see Mr. Alvarez dart his Explorer around the school bus, there is no other logical way it could happen. One minute he was behind the school bus appearing to slow down, and the next minute he was passing the school bus on the left. If it is necessary to blame someone for this accident, then Mr. Alvarezís actions must be considered.
The following definitions, instructions, and questions are derived from the Texas Pattern Jury Charges. The following is the exact same language the actual jury will receive if this case goes to trial. Each instruction, though appearing redundant at times, is important. Some of the definitions and questions are very difficult, and unfortunately, it is very rare that a Judge would ever allow them to be modified. Answer to the best of your ability. If you have particular difficulty, you can explain the difficulty in your answer.
"Negligence" means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.
"Ordinary Care" means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.
"Proximate Cause" means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.