Question

Thompson operated an ice-cream truck owned by Smith Foods Ltd. During the summer months Thompson travelled throughout the residential areas of a large city selling ice-cream products. Thompson’s principal customers were children, and Thompson would drive along the streets ringing a series of bells attached to his truck to signal his arrival in the area. Alberta, a five-year-old child, and her brother were regular customers of Thompson. On the day in question the two children heard the bells that sig- nalled the approach of Thompson’s ice-cream truck. Martha, Alberta’s mother, was talking to her husband on the telephone at the moment that the ice-cream truck arrived. In response to the cries of her two small children for money to buy ice-cream, she gave them enough money to buy an ice-cream bar each. The children ran across the street to where the truck was parked, and each ordered a different ice-cream product. Thompson served Alberta first, and then turned to serve her brother. At that instant, Alberta ran

into the street, with the intention of returning home, and was struck by a car driven by Donaldson.

Alberta was seriously injured as a result of the accident and an action for damages was brought against Thompson, the operator of the ice-cream truck, Smith Foods Ltd., the owner of the truck, and Donaldson, the owner and driver of the automobile.

Discuss the basis of the action on Alberta’s behalf against the owners and drivers of the vehicles, and determine the basis of the liability of each party under the law of torts.

Render a decision.

Answer 1

Q: Discuss the basis of the action on Alberta’s behalf against the owners and drivers of the vehicles, and determine the basis of the liability of each party under the law of torts. Render a decision.

A: This is clearly a case of negligence on the part of Alberta's mother, Martha. She should not have left the children unattended and allowed them to cross the street on their own especially given Alberta's age of five years and that too she was the older of the two siblings. When a parent doesn't take adequate care for their children, one can't really find fault with third parties like Thompson who operates the ice cream truck owned by Smith Foods Ltd. Small children do not know how to cross streets and always need adult supervision while crossing streets and it was solely Martha's responsibility as their parent and guardian to care for her children and ensure their safety at all times. There is no excuse or justification for her duty and responsibility. Thompson's prime job was to serve ice creams and was not engaged to monitor the small children or babysit by Martha. He had parked the ice cream truck at the side of the street as usual and had turned to serve Alberta's younger brother. Thompson would have expected Alberta to wait for her younger brother and since these children were regular customers would have not expected Alberta to suddenly leave her younger brother and run across the street. Thus, no case for tort can be made out against Thompson, the operator of the ice cream truck or Smith Foods Ltd., the owner of the ice cream truck, as they are not liable for tort in this case. This was a street accident which was not caused by them intentionally or unintentionally. Martha's damages claim against both Thompson and Smith Foods Ltd. will be untenable and have to be dismissed.

Now, coming to the role of Donaldson, who was the owner and driver of the automobile, which accidently hit Alberta causing serious injuries. Again, while it was a clear case of negligence by Martha and an accident is never intentional/deliberate, there are several precedents / caselaws which have become a part of common law to show motor accident claims are upheld under accidental tort and damages are provided by a jury or court to the motor accident victim or their beneficiary or legal guardian in case of minors, as the case may be. So, a jury or a court should uphold Martha's claim for damages against Donaldson on the ground of accidental tort for seriously injuring Martha's five year old daughter Alberta after Alberta was struck by Donaldson's car.