Kline & Specter: Personal Injury Lawyers

Pennsylvania - New Jersey - New York - Nationwide

By MARYCLAIRE DALE
Associated Press
Nov 29, 2011

Pa. school: Bus driver hit accelerator, not brake

Nearly five years after a school bus barreled into a group of high school students at dismissal, a suburban Philadelphia school district admitted Tuesday that the driver hit the accelerator instead of the brake, causing the amputation of a teenage girl's leg.

The Pennsbury School District's admission came as a lawsuit filed by then-student Ashley Zauflik goes to trial in Bucks County. The district accepted liability for Zauflik's injuries just before jury selection began. The trial will now determine damages.

The National Transportation Safety Board had found the driver hit the wrong pedal when he crashed into about 20 Pennsbury High School students in January 2007 as he waited to exit the parking lot. Falls Township police reached the same conclusion. Driver John McCleary, a district employee, has long insisted a mechanical problem left him unable to stop the bus. But Cohen said the district can't dispute the NTSB findings.

"They have no other evidence to the contrary," Cohen told The Associated Press.

McCleary, who was not driving his regular bus, testified that he had his foot on the brake and the bus in gear, only to have the engine roar and the bus lurch forward toward the students. He said he applied the emergency brake and removed the ignition key, to no avail, before crashing into a retaining wall.

"What happened here was dubbed by the investigators as driver error," Zauflik's lawyer, Thomas Kline, said. "There have been really few (school bus) accidents that involve this issue."

Zauflik, now 22, was a 17-year-old junior when the bus struck her, dragging her under a tire and crushing her leg and hip. She spent a month hospitalized in Philadelphia, where her leg was amputated above the knee, and more time at a rehabilitation hospital. She has had trouble using a prosthetic leg, so instead uses crutches or a wheelchair to get around, Kline said.

Zauflik finished her last three semesters of high school at home and is now enrolled in an online course for medical coding through a community college, according to pretrial memos. However, a psychologist worries that she has become increasingly withdrawn. She lives at home with her parents, a mechanic and school aide, and has two younger siblings, according to the court documents.

Kline hopes she can be fitted with better prosthetic devices that will allow her to be more active. His experts put her lifetime medical expenses at more than $3.2 million, most of it for the prosthetic devices, which must be refit periodically over a lifetime, the expert said. An actuary put total damages at more than $7 million, including lost earnings and inflation.

Pennsylvania law, though, caps damages that can be assessed to a school district or municipality at $500,000 per incident.

The Pennsbury School District offered that amount to be split by Zauflik and seven others who filed suit over the crash. Kline rejected the offer and called the cap unconstitutional, according to the district's trial memo. The state Supreme Court last upheld the constitutionality of the limit in 1986. Any jury award over that amount would presumably be reduced by a court afterward. 

Opening arguments are set for Wednesday, and Zauflik is expected to testify Thursday.

"Our focus is on Ashley, on what happens to a girl when something goes horribly wrong in the schoolyard," Kline said. "We believe the damages are very significant, with her high amputation, and her youth."