|Legal Opinion: |
Text of Document: MEMORANDUM
FROM: Sid Hemsley, Senior Law Consultant
DATE: May 13, 2009
RE: Legal effect of "SLOW CHILDREN PLAYING" and similar signs
One of your cities has the following question: What is the legal effect of "SLOW CHILDREN PLAYING" and similar signs on residential streets within the city?
The answer is that they generally have no legal effect, at least with respect to the right of the city to cite persons for "violations" of such signs; the speed limit in effect on the particular street in question would govern the speed of motorists using the street. But as will be seen below, there is a state "due care" statute, and probably some municipal ordinances that track that statute, under which a driver might be charged if he ignores such a sign. For the purposes of civil liability on the part of a motorist who may have injured or killed a child in the vicinity of such a sign, the sign might serve as notice to the motorist that he should have used "heightened caution" due to the presence, or possible presence, of children in the vicinity of the scene of the accident.
Tennessee Code Annotated, ' 55-8-136, is among a number of "Rules of the Road" in Tennessee Code Annotated, Title 8, that the govern the use of the streets and highways by bicyclers and pedestrians. It is entitled "Drivers to exercise due care, "and provides that:
(a) Notwithstanding the forgoing provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway. [Emphasis is mine.]
A violation of that statute is a Class C Misdemeanor [Subsection (c)].
Both that statute and the law of negligence that applies drivers using streets where children may be playing in the streets arose most recently in Kim v. Boucher, 55 S.W.3d 551 (Tenn. Ct. App. 2001) (permission to appeal to Tennessee Supreme Court denied June 25, 2001). There Ms. Boucher struck and injured Kim, a 14 year old boy. Kim 's parent sued Ms.Boucher, alleging that she was driving at an excessive speed, did not keep a proper lookout, drove with reckless and willful and wanton disregard for the safety of others, violated Tennessee statutes and Memphis City ordinances, and other charges. Ms. Boucher also alleged that Kim had violated Tennessee state statutes and Memphis city ordinance arising from his being in the streets. The trial court dismissed the charges against Ms. Boucher, even finding, as she alleged, that Kim had had violated Tennessee Code Annotated, ' 55-8-173(c) and Memphis ordinance 21-14, "constituting negligence per se." [At 554] (Tennessee Code Annotated, ' 55-8-173(c) prohibited playing on a highway within a city or town, except upon the sidewalk, and playing on a highway outside a city or town, or to use thereon roller skates and other similar vehicles. The Memphis ordinance apparently reflected the same statute converted to an ordinance violation.) However, there is no indication in the case that either the Ms. Boucher or Kim were charged with violating any of the provisions of state law or city ordinance governing pedestrians on the street; the trial court used the "violation" of the state laws and ordinances in a negligence context.
The Court of Appeals overturned the trial court, outlining the duty of care owed to children in or near the streets:
Where the presence of children is known to the driver, Tennessee law places upon the driver a duty of care to consider childish behavior and to take precautions accordingly. Staley v. Harkleroad, 501 S.W.2d 571 (Tenn. Ct. App. 1973).
"Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them, must calculate upon this, and take precaution accordingly." Townsley v. Yellow Cab Company, 145 Tenn. 91, 273 S.W. 58 (1922) (quoting Ficker v. Cleveland etc., R. Co., 7 Ohio N.P. 600); see also Bradshaw v. Holt, 20 Tenn. 249, 292, S.W.2d 30 (1956). Where this heightened standard of care has not been considered by a trial court, a directed verdict may not be appropriate. See Staley v. Harkleroad, 501 S.W.2d 571 (Tenn. Ct. App. 1973) (the Court of Appeals reversed the trial court ' s directed verdict stating it was obviously based on the view that the defendant was not guilty of any negligence).
The trial court, reasoned the Court of Appeals, had not taken the duty of care owed to children in the streets in throwing out the plaintiff ' s case. At the time of the accident apparently there were a large number of children in the street near the scene of the accident.
There were no signs warning of children playing in the streets in the vicinity of the accident scene in Kim v. Boucher, but there were in McBee v. Williams, 405 S.W.2d 668 (Tenn. Ct. App.1966) (Appeal to Tennessee Supreme Court denied August 1, 1966). An 11 year old boy was killed when he was struck by a car in a heavily populated housing project in Knoxville, on a street posted on both sides with signs that read "Slow-Children." Testimony had the defendant going 30 to 35 M.P.H., or 30 to 45 M.P.H., in where there was a 30 M.P.H speed limit. The defendant said that he did not see children playing along the sidewalks or see the "Slow-children" signs. But there is no indication in the case that defendant was charged with any offenses arising from the accident, but the court concluded that:
From this evidence we are of the opinion the jury could have inferred the defendant failed to keep a proper lookout ahead and was traveling at an excessive rate of speed under the circumstances and conditions. [At 669]
That language suggests that the defendant owed a "heightened standard of care" duty to children that were in and near the streets in this case, but that the duty arose, at least partially, from the "Slow: Children" signs posted in the vicinity of the accident scene. For that reason, it does not appear that a driver necessarily mist see children before that duty toward then arises, but that it may arise from being warned by signage indicating that children may be present.
That duty of care probably needs to be taken into account when the distinction between regulatory and warning signs under the Uniform Manual For Traffic Control Devices (UMTCD) is made below. It will be seen that regulatory signs have a legal, and warning signs, an advisory, function. But in Tennessee (and probably other states) a person might be criminally charged with the lack of due care (Class C Misdemeanor) for not having taken into account some warning signs, perhaps signs warning of the possible presence of children. Moreover, even in cases where no such charges are forthcoming from automobile accidents in which a child is injured or killed, the driver may find himself civilly liable for negligence, arising at least partly, from having ignored or not seen a "SLOW CHILDREN PLAYING" type warning sign.
Tennessee Code Annotated, ' 54-5-109, provides that the Department of Transportation has the power and duty to formulate and adopt a manual for the location of signs, signals, markings, or postings of traffic regulations on or along all streets and highways in Tennessee,
and no signs, signals, markings or postings of traffic regulations shall be located on any street or highway in Tennessee regardless of the type or class of the governmental agency having jurisdiction thereof except in conformity with the provisions contained in such manual.
In language tracking that statute, the Tennessee Department of Transportation in Tenn. Comp., R & Reg. 1680-3-1-.01 rule applies the current MUTCD to "all the streets and highways in the State of Tennessee," and in Tenn. Comp. R & Regs. 1680-3-1-.02, it adopts the 2003 Edition of MUTCD.
MUTCD itself differentiates between "Standards," "Guidance" and "Options," in the application of the MUTCD, as follows:
Standard: When used in this Manual, the text headings shall be defined as follows:
1. Standard- a statement of required, mandatory, or specifically prohibited practice regarding a traffic control device. All standards are labeled, and the text appears in bold type. The verb shall is typically used. Standards are sometimes modified by options.
2. Guidance-a statement of recommended, but not mandatory, practice, with deviation allowed if engineering judgement or engineering study indicates the deviation to be appropriate. All Guidance statements are labeled, and the text appears in unbold type. The verb should is typically used. Guidance statements are sometimes modified by Options.
3. Option- a statement or practice that is permissive and that carries no requirement or recommendation. Options may contain allowable modifications to a Standard of Guidance. All Option statements are labeled, and the text appears in unbold. The verb may is typically used.
4. Support- an information statement that does not convey any degree of mandate, recommendation, authorization, prohibition, or enforceable condition. Support statements are labeled, and the text appears in unbold type. The verbs shall, should and may are not used in Support Statements. [See 2003 MUTCD, pp. 1-2 and 1-3.]
Part 2 of 2003 MUTCD entitled "Signs" contains the regulation governing signs for highways and streets. Part 5 of MUTCD entitled "Traffic Control Devices for Low-Volume Roads" contains regulations governing traffic control devices on roads that qualify under that charter. Part 2 contains several chapters on signs, only three of which are pertinent to your question: Chapter 2A General, 2B Regulatory Signs, and 2C Warning Signs. Chapter 2A, Section 2A.01 contains this Standard that defines the kinds of highways to which Chapter 2 applies, including: B. Conventional Road B a street or highway other than a low volume road (as defined in Section 5A.01), a freeway, or an express way....
It does not appear likely that most residential streets in cities will be low volume roads, which are defined in Chapter 5A as:
A. A low-volume road shall be a facility lying outside of built- up areas of Cities, towns and communities and it shall have a traffic volume of less than 400 AADT.
B. A low-volume road shall not be a freeway, expressway, interchange ramp, freeway service road, or a road on a designated State highway system. In terms of highway classification, it shall be a variation of a conventional road or a special purpose road as defined in Section 2A.01.
C. A low-volume road shall be classified as either paved or unpaved.
The "Support" provision for Chapter 5A says: A Low-volume roads typically include farm- to-market, recreational, resources management and development, and local roads. It may be that the term "local roads" includes some city streets in some cities. But even if that is so, Chapter 5B, which pertains to regulatory signs and Chapter 5C, which pertains to warning signs, on low-volume roads, includes no signs about "SLOW CHILDREN PLAYING," or signs similar to it.
Those chapters are, if anything, more conservative about what signs are allowed on low-volume roads than they are about signs allowed on highways and streets.
Chapter 2A, Section 2A.05 contains this Standard:
Signs shall be defined by their functions as follows:
A. Regulatory signs give notice of traffic laws or regulations.
B. Warning signs give notice of a situation that might not be readily apparent.
C. Guide signs ....
Chapter 2B. Regulatory Signs, says in Section 2B.01 Application of Regulatory Signs:
Regulatory signs shall be used to inform road users of selected traffic laws or regulations and indicate the applicability of legal requirements. [Emphasis is mine]
Chapter 2B contains a multitude of regulatory signs, not one of which is a SLOW CHILDREN PLAYING, or anything similar to it.
Chapter 2C Warning Signs does not speak about the function of warning signs through a Standard. Section 2C.01 Functions of Warning Signs, declares:
Warning signs call attention to unexpected conditions on or adjacent to a highway or street and to situations that might not be readily apparent to road users. Warning signs alert road users to conditions that might call for a reduction in speed or an action in the interest of safety and efficient traffic operation.
Section 2C.02 Application of Warning Signs contains this Standard: The use of warning signs shall be based on an engineering study or on engineering judgement.
Chapter 2C contains a multitude of warning signs, likewise none of which is a SLOW CHILDREN PLAYING, or any sign similar to it. Section 2C.42 Playground Sign, provides that the Playground W15-1 sign "may be used to give advance warning of a designated children ' s playground that is located adjacent to the road." The W15-1 Playground sign reflects a picture of two children, one on each end of a see-saw. But children playing in the street do not correspond to the definition of playground in Section 2C.42, which is for a playground that is adjacent to the street,
However, Section 2C Application of Warning Signs, also contains this "option" provision: "Word message warning signs other than those specified in this Manual may be developed and installed by State and local highway agencies." [Emphasis is mine.] At first glance, under this "Option" presumably a city could install "SLOW CHILDREN PLAYING" or similar warning signs. But on second glance, the word "SLOW" in such a sign probably creates a problem that blurs the distinction between a regulatory and a warning sign. The distinction between regulatory and warning signs in MUTCD are quite clear; they serve two different functions, the first reflecting a legal requirement, the latter giving warning of unexpected conditions. At the same time, as noted above, the "Support" provision under Section 2C.01 Function of Warning Signs, declares that "Warning signs alert road users to conditions that might call for a reduction of speed or an action in the interest of safety and efficient traffic operations." [Emphasis is mine] In addition, Section 2C.36 Advisory Exit, Ramp, and Curve Speed Signs pertains to Signs W13-2, W13-3 and W-13-5 and provides that, such signs "shall be used where engineering judgment indicates the need to advise road users of the recommended speed in an exit, a ramp, or a curve." The above signs are found in Figure 2C-5, which is also labeled "Advisory Speed and Speed Reduction Figures." [Emphasis is mine.]
Obviously, none of the warning signs related to speed on exits, ramps or curves apply to children playing in the streets. The point of mentioning them here is that even some warning signs in MUTCD incorporate advisory speeds Under the "Option" provision of Section 2C.02, presumably, a city could adopt a warning sign that said "Slow Children Playing" or "CHILDREN PLAYING X M.P.H," the X reflecting a number below whatever the speed limit is for the street in question. But whatever option the city selected if the motorist did not slow down, or proceeded past the sign at a higher speed than reflected by the X, he would not have violated the speed limit, unless he went faster than the speed limit that pertained to the street.
The problem with such a decision on the part of a city is that it would probably be difficult for residents in residential areas where such signs existed to understand that such speeds would be advisory rather than mandatory, and that the warning sign used would not intercept whatever the speed limit on the particular road at issue.
In theory, a city could adopt a speed limit for areas in which children play on the streets that is lower than for residential streets generally, but as pointed out above, the Standard accompanying Section 2C.02 Application of Warning Signs, is that "The use of warning signs shall be based on an engineering study or engineering judgement," and the "Guidance" provision attached to it says that "The use of warning signs should be kept to a minimum as the unnecessary use of warning signs tends to breed disrespect for all signs." The guidance provisions of MUTCD are not mandatory, but they reflect sound bases for MUTCD ' s mandatory Standards. Related to that problem, and perhaps partly separate from it, is that the placement of "SLOW CHILDREN PLAYING," and similar warning signs is often a political decision, and their inconsistent placement makes motorists ' negotiation of residential streets a haphazard and unpredictable enterprise, and create some difficult law enforcement problems.
I find only one case that distinguishes between regulatory and warning signs. That case does not involve the distinction found in MUTCD, it does involve the injury of a child by a driver in the vicinity of a SLOW CHILDREN sign. In Thomas v. Price, 401 N.E.2d 651 (Ill. 1980), a driver, who the evidence showed was traveling at 50 M.P.H, which was within the speed limit, struck and injured a nine year old child who had run into the street in front of another moving automobile. Two of the plaintiff ' s parent ' s argument in his suit against the driver was that there was a "Slow Children" sign in the vicinity of the accident, and that the defendant had knowledge of children in the neighborhood. They urged that 50 M.P.H in the face of those arguments was too fast even under optimum driving conditions. The court disagreed, declaring that:
The State Trooper who investigated the accident scene testified that the sign in question was not a control sign which required a speed reduction. Although certain signs require a reduction in speed because of the presence of children, the sign described here merely alerted passing motorists.... [At 653]
The court did declare that under some circumstances that did not exist in this accident, the defendant ' s failure to slow down in response to the sign might have constituted "grossly offensive conduct. "[At 653] As both Kim v. Boucher and McBee v.Williams, suggest, in Tennessee conduct pointing to a driver ' s negligence might include the failure to heed a sign warning that children might be on the streets in the vicinity. But It might also be used to support a criminal charge of the failure to exercise due care under Tennessee Code Annotated, ' 55-8- 136 or an ordinance violation that tracks that statute. The point is also easy to miss that children playing in the streets might also be charged with various state law and ordinance violations, which in the civil context might also constitute negligence on their parts.