Boy struck by car after following cross-country coach in to dark highway against light

The parents of 13-year-old Kersch Ray sued Eric Swager, Kersch's cross-country coach, after Kersch was struck by a car near Chelsea High School.  According to the family, the coach was leading a group of runners when he arrived at a "red hand" stopping pedestrians at an intersection:  allegedly, despite the light, he told the boys "let's go" and attempted to cross the road in the dark.  The parents, as conservators for their injured son, argued that the coach was guilty of gross negligence in attempting to lead the boys across a dark intersection against the light.

The coach argued that Kersch may not even have heard his comment urging the boys forward because he was at the rear of the pack of runners.  He also argued that in any event he was entitled to governmental immunity because he was not "grossly" negligent and not "THE" primary cause of the boy's decision to enter the dark highway.  The trial judge ruled that these were questions for the jury to resolve, but the school's attorneys appealed and drew a favorable panel of pro-insurer judges including Henry Saad, Joel Hoekstra and Mark Boonstra. 

The latter judges reversed the lower court and ruled, as a matter of law, that jurors could not disagree with their opinion that the coach was not grossly negligent in leading a group of 13 year-olds into the dark highway against the light.  They also offered the opinion that reasonable jurors could not conclude that the judge's stupidity could not be the primary cause of the boy's injuries because he had chosen to follow the judge into the potential traffic conflict.  "Had [the boy] himself verified that it was safe to enter the roadway...the accident would not have occurred."  They stated, undermining a century of common law, that "Children, even those considerably younger than Ray, are expected to understand the danger attendant to crossing a street, and they are expected 'to use care and caution to guard against the dangers of such crossing...' " even when urged forward by an authority figure.  As a result, the child's mistake operated to preclude an even more grave error by an adult--a legal conclusion that few disinterested scholars would accept, but which insurers and their minions certainly treasure.