Estate of Tuilesu v. Asifoa
Estate of Tuilesu v. Asifoa
Opinion of the Court
On or about October 14, 1989, young Mercy Tuilesu died after she was run over by a bus. At the time of the accident, Mercy was only twenty-months-old. Her mother, Peleiupu Tuilesu, and her older siblings
The only eyewitness to the accident testified that he had been a passenger on the bus but that he had earlier disembarked further up the road from the scene of the accident.
Notwithstanding this eyewitness account, plaintiffs ask the court to draw a conclusion of negligence on the part of the driver. The inference sought is premised on the contention that the location of blood stains towards the middle of the road indicates that the child was alongside the bus when it pulled out and that if the driver had been keeping a proper lookout, he would have, or should have, noticed the decedent.
The evidence simply does not support such a conclusion. The Court viewed the scene and found nothing remarkably telling from the location of the blood stains (apparently marked by the investigating police
Considering the evidence before us, we fail to see anything reliable on which to base a finding of negligent causation. The evidence suggests that the only way the accident would have been avoided was if the driver had first checked under his bus before moving it. But the evidence failed to show that the driver knew, or should have known with the exercise of reasonable caution, that there was an infant under his bus. Rather the evidence points in the opposite direction. The child went under the bus when it was stopped and while the driver was momentarily preoccupied with collecting fares, and, it may be reasonably assumed, ensuring that his passengers were safely off the bus before he could move on. His attention would thus have been directed to the right side of the bus while the child’s perilous situation arose on the left, effectively outside of, and later hidden from, his view. In these circumstances we cannot conclude that there was a failure on the part of the driver to keep a proper look out.
We are mindful that the law imposes upon the motorist the duty to be extra vigilant when encountering children in order to prevent accidents, but at the same time, the law does not require the motorist to be an insurer of the safety of such children. The mere fact of injury does not give rise to strict liability without fault. See Matalogo v. Penitusi, 4 A.S.R.2d 46 (1987); Lauoletolo v. Setenaisilao, 14 A.S.R.2d 37 (1990). In our view, plaintiffs have failed to meet their burden of proof to establish negligence together with proximate cause. Accordingly, the complaint is dismissed and judgment shall be entered in favor of the defendants.
It is so ordered.
The details of plaintiffs’ claims were only learned at the time of trial. The complaint itself merely alleges negligent operation on the part of the driver and negligent entrustment on the part of the bus owner.
Although the witness testified that he was about 50 yards away from where the accident occurred, we noticed from our visit to the scene, after comparing the markings which the witness had made on a photograph of the vicinity produced in court, that he was more accurately about 200 yards away from the point of impact.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.