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Palm Beach County

This was a wrongful death action arising from an accident which occurred when the defendant backed his vehicle out of his residential driveway and struck the two-year-old decedent. The minor decedent died a short time later as a result of the injuries she sustained. The defendant argued that the girl’s mother failed to adequately supervise the child and he was unable to reasonably avoid the accident. The young decedent’s mother was named as a third-party defendant in the case.

The plaintiffs, the child’s surviving parents, contended that the defendant was negligent in the operation of his motor vehicle. The plaintiffs also asserted that a large amount of foliage adjacent to the defendant’s driveway obstructed his view of approaching pedestrians on the sidewalk. The plaintiff claimed that the defendant was also negligent in failing to cut the foliage on his property.

The plaintiff mother testified that she and her daughter were walking on the sidewalk in March, ________. The plaintiff mother contended that she was unable to observe the presence of a vehicle in the defendant’s driveway, due to the excessive foliage. She testified that she had no idea, from her position approximately 10 feet away, that the defendant was about to back his car onto the sidewalk.

The plaintiff’s accident reconstruction expert opined that, due to the highly obstructed view, the defendant should have taken extra precautions in backing his vehicle out of the driveway. The plaintiff’s expert suggested that the defendant could have parked further away in his driveway from the obstructed side, backed into the driveway so that he faced the sidewalk with an enhanced view, used a convex mirror, and stopped at the sidewalk so that he could yield to any oncoming pedestrians.

The minor plaintiff was air-lifted to the hospital after the accident with massive head and chest injuries. She was pronounced dead several hours later.

The defendant was a 72-year-old retired homeowner at the time of the collision. His wife was a passenger in the car at the time of the accident. The defendant contended that he had taken all the precautions that any reasonable driver would take. The defendant testified that he looked in every available mirror while reversing his car, looked back through his rear windows and backed up slowly. The defendant testified that, on the date of the accident, he had walked around the foliage adjacent to his driveway and looked, but saw no one on the sidewalk. The defendant’s wife corroborated the defendant’s testimony.

The defendant’s accident reconstruction expert opined that the cause of the accident was the child being allowed by her mother to get behind the car, especially as the child was only 34" tall and the rear trunk of the defendant’s car was 37" high. This expert also offered his further calculations that the defendant would have had only between half a second to a little over one second to see the child in his side-view mirror.

The defendant also produced two defense investigators who testified that, weeks after the accident, the plaintiff mother told them she was more than 60 feet away from the defendant’s driveway at the time her daughter was struck.

Defense witnesses additionally testified that the plaintiff mother turned to talk to a neighbor who was driving past, just before the accident occurred.

The jury found no negligence on the part of the defendant whose action was a legal cause of the decedent’s death. The plaintiff’s post-trial motion for new trial was denied. The defendant has moved to tax costs.

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