DATE: 20030512
DOCKET: C37547
COURT OF APPEAL FOR ONTARIO
MOLDAVER, FELDMAN and CRONK JJ.A.
B E T W E E N :
F.C. by his Litigation Guardian W.C., A.C. and W.C.
Plaintiffs
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511825 ONTARIO INC. c.o.b. as CONNOR GROUP HOMES, ROBERT CONNOR, ELAINE CONNOR, DAVID NAULLS and BEVERLY NAULLS
Steven Stieber and Renée A. Kopp, for the appellants, 511825 Ontario Inc. c.o.b. as Connor Group Homes, Robert Connor, Elaine Connor, David Naulls and Beverly Naulls
Defendants (Appellants)
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THE NORTHUMBERLAND CLARINGTON BOARD OF EDUCATION and THE CHILDREN’S AID SOCIETY OF OTTAWA-CARLETON
E. Eva Frank, for the respondent, The Northumberland Clarington Board of Education
Brian Parnega, for the respondent, The Children’s Aid Society of Ottawa-Carleton
Defendants (Respondents)
Heard: February 3, 2003
On appeal from the judgment of Justice D. McWilliam of the Superior Court of Justice, sitting with a jury, dated December 11, 2001.
1This appeal and cross-appeal arise out of serious injuries suffered by F.C., a developmentally challenged young man. At the relevant times, F.C. was twenty years of age; however, he functioned at the level of a five to seven year old. Due to his special needs, he lived in a group home near Campbellford, Ontario and attended a special education class at a nearby high school.
2During the fall of 1996, F.C. developed a friendship with one of his developmentally challenged classmates – a fifteen year old girl who also resided in a group home. On January 6, 1997, F.C. and his friend left school together, without supervision or the prior knowledge of any adult. When they were found four days later, they were suffering from severe frostbite. Tragically, F.C.’s injuries required several operations and the amputation of his legs.
3Thereafter, F.C., his biological father, and his sister commenced a civil action against the parties to this appeal, claiming damages for negligence. Before this court, the appellants seek to overturn the jury’s findings of negligence and apportionment of liability as among the defendants in the action, on the basis that those findings are unjust and unreasonable based on the evidence at trial. One of the respondents, The Children’s Aid Society of Ottawa-Carleton (the “Society”), cross-appeals against the possibility that its percentage liability, as assessed by the jury, may be increased if the appeal is successful.
4For the reasons that follow, I conclude that the jury’s disputed findings are supported by the evidence in this case, examined as a whole, and that the jury’s verdict is not plainly unreasonable or unjust. Accordingly, I would dismiss both the appeal and the cross-appeal.
A. FACTS
(1) The Parties and Background
5In 1991, F.C.’s biological parents, W.C. and M.C., entered into a special needs agreement with the Society, whereby the Society agreed to place F.C. in a residential setting and to provide various other services for him. Consequently, as acknowledged by the Society, at all material times F.C. was in the care and control of the Society.
6The Society placed F.C. in a group home owned by Connor Group Homes, a business owned and operated by the appellants, Robert and Elaine Connor, through the corporate appellant, 511825 Ontario Inc. The group home was operated by the appellants, David and Beverly Naulls, under the supervision of Elaine Connor. 1 The Naulls served as F.C.’s group home parents.
7The placement agreement between the Society and Connor Group Homes required preparation of a plan of care for F.C.. After 1991, the plan was to be reviewed every ninety days. The agreement also obliged Connor Group Homes to provide the Society with written reports concerning F.C.’s social and emotional adjustment, and his school progress, once every three months. Importantly, the agreement also addressed the issue of absences without leave (“AWOLs”) by F.C. from the group home. Connor Group Homes was required to notify the Society within four hours if F.C. went AWOL.
8In 1991, F.C. began attending Campbellford District High School (the “High School”), which is operated under the auspices of The Northumberland Clarington Board of Education (the “Board”). He was a member of a class for developmentally challenged students (the “DC Class”), which was designed to assist the students in achieving their academic potential, while also teaching them those basic life skills necessary to function on a daily basis in the general community. In the fall of 1996, there were fourteen students in the DC Class. It was taught by Victor Conte, an employee of the Board.
9H.S. joined the DC Class in September 1996. Her older sister, A.S., was also a DC Class student. They resided in a group home operated by Daryl and Linda Thomson. H.S. was fifteen years of age. She functioned at a higher level than F.C. and the other students in the DC Class. But for her behaviour, she was considered by school authorities to be a borderline candidate for moving from a self-contained classroom to a regular class. A.S. functioned at a lower level than her sister, and had additional special needs.
(2) Transportation and Supervisory Arrangements
10The Board utilized a transportation manual which outlined the respective responsibilities of school principals, parents/guardians, students, and school bus drivers concerning the transportation of students to and from schools within the Board’s jurisdiction. Under the manual, the school principal was responsible for the arrival and departure procedures at the High School, and for the supervision of loading and unloading procedures, among other matters. The terms of the manual recognized that students with disabilities “may require special attention”. However, the manual provisions relating to such exceptional students did not provide for additional supervision at the time of bus loading; rather, according to the principal, they were concerned with student behaviour on school buses and not with loading arrangements.
11The manual also provided that parents could expect transportation for their children from a designated bus stop to school, and return to the bus stop. Parents were responsible for their children’s safety and conduct at bus stops prior to pick up and after leaving the bus at the end of the school day. As well, they were obliged to report any problems “about late arrivals, departures etc.” to the principal, or to the Board’s transportation department.
12Both F.C. and H.S. were provided by the Board with transportation to and from school. F.C. was transported in a school bus with other students from the High School, including some students from the DC Class and two other residents from his group home. H.S. and A.S. were transported in a station wagon, described as a “taxi”.
13The classroom for DC Class students was located directly across from the students’ assigned lockers, and adjacent to the door leading to the busing area. At the end of each school day, the departure of the students was overseen by Mr. Conte, who was usually present in the classroom or the adjacent hallway to assist the students, and an educational assistant, who assisted the students with their locker combinations and coats. Classes concluded at 3:06 p.m. and the school buses left the High School at about 3:15 p.m. H.S.’s departure taxi usually arrived at the High School at about 3:00 p.m.
14When the DC Class students were ready to leave, they crossed from their lockers to the nearby door leading to the busing area. They were permitted to board their departing transportation vehicles without an escort. Consistent with the practices followed by other high schools at the time, the Board did not provide a bus monitor in the busing area to confirm which students took departing buses, or to take attendance on the transportation vehicles provided by the Board.
15The progress and needs of DC Class students were assessed annually by the Board, in advance of each new school year and in consultation with parents, including group home parents. Early in 1996, Elaine Connor and Beverly Naulls attended an annual review meeting for F.C.. No special or new transportation or supervisory requirements for F.C. were identified at that meeting.
16Accordingly, as he had done in prior years without any adverse incident, during the fall of 1996 F.C. was permitted to leave the school building unescorted at the end of the day to board his departing school bus. No difficulties with his transportation arrangements were experienced prior to November 1996.
17At the end of the school day, H.S. left the school building alone or with her sister to board her taxi. No difficulties were experienced with her transportation arrangements prior to November 1996.
18Apart from a two week period in 1995 when F.C. had lunch on school days at a group home situated away from the High School, no special supervisory arrangements applied to him at lunch or at other school break times.
19In contrast, shortly after commencement of the school year in September 1996 and because of their concern regarding H.S.’s provocative behaviour towards boys, the Thomsons made their own arrangements to hire two senior students at the High School to supervise H.S. at lunch time. The supervisory students were responsible to the Thomsons, not to the High School.
(3) The AWOLs from the High School
20After H.S. joined the DC Class, F.C. and H.S. developed a caring friendship and mutual attraction. Prior to January 1997, they were involved in four AWOLs from the High School. The incidents occurred on November 1, 8 and 25 and December 4, 1996, respectively. In summary, the circumstances surrounding the AWOLs were as follows.
21On November 1, 1996, Victor Conte observed F.C., H.S. and another DC Class student walking in town at approximately 4:00 p.m. The students had failed to take their arranged transportation at the end of the school day. Mr. Conte called their group home parents to inform them that he had seen the students in town. The students were then returned to their group homes. They were not injured in any way.
22As a result of that AWOL, several steps were taken. The Naulls spoke to F.C. about his inappropriate behaviour and about the need not to leave school without permission. They also took away F.C.’s group home privileges for two days, started monitoring his telephone calls, and routinely forwarded reporting documents concerning his behaviour, and the measures taken at the group home in relation to his behaviour, to Elaine Connor for approval.
23The Thomsons again made their own arrangements for additional supervision for H.S.. They hired the same two senior students who supervised H.S. at lunch time to escort her, on a rotational basis, to her taxi at the end of each school day.
24For his part, Mr. Conte began to initiate casual conversations with F.C. at the end of the school day for the purposes of depriving him of social contact with H.S. in the locker area of the DC Class, and distracting him while H.S. got into her taxi. In essence, he attempted to delay F.C., or hold him back, for several minutes to permit H.S. to leave the building first. At trial, Mr. Conte could not recall how many days he held F.C. back in that fashion. As well, on the next school day following the November 1st AWOL, Mr. Conte spoke to H.S. and F.C. about their behaviour, and dealt with the incident as a life skills learning experience.
25None of the Naulls Group, the Society or the School Board arranged extra or additional supervision for F.C. following the November 1st AWOL.
26The November 8th AWOL also occurred at the end of the school day. F.C. and H.S. again left the High School property without supervision or the prior knowledge of any adult. At approximately 7:00 p.m., F.C. made a collect call to the Naulls from a telephone booth close to H.S.’s home. The Naulls picked him up. They again spoke with F.C. about his conduct and reinforced with him the need to know his whereabouts. They also deprived him of his privileges at the group home for two days. Importantly, they failed to notify the High School, the Board or the Society of the AWOL.
27On November 25, 1996, F.C. and H.S. again went AWOL by leaving the High School at the end of the day without supervision or the prior knowledge of any adult. On this occasion, they were picked up in the evening while attempting to hitchhike to Ottawa. They were taken to the police station and ultimately returned to their group home parents.
28This time, in addition to speaking with F.C. about his behaviour, the Naulls decided to keep F.C. back from school the next day. Beverly Naulls testified that she spoke to Mr. Conte on November 26th to explain that F.C. would not be at school because of the AWOL on the previous day. She claimed that, during that call or perhaps in an earlier discussion that month with Mr. Conte, Mr. Conte told her that he was unable to engage in activities with the DC Class students after school because of his involvement with the High School’s hockey team. She also said that she understood that, going forward, the High School would hold F.C. back at dismissal time until H.S. was escorted to her taxi. Mrs. Naulls was unclear as to how she obtained that information. Although Mrs. Naulls also believed that Elaine Connor had contacted the High School after the November 25th AWOL to request support for F.C., Mrs. Connor did not confirm that communication in her testimony. Mr. Conte testified that he did not recall the suggested discussions with Mrs. Naulls in November 1996 and that he did not learn of the November 25th AWOL until January 1997.
29The fourth AWOL occurred nine days later, on December 4th. At about 3:00 p.m., when the DC Class students were leaving a computer skills class enroute to their usual classroom, F.C. and H.S. ran from their classmates and the educational assistant, and exited the school through the gymnasium. A search for them was undertaken, and Mr. Conte called their group home parents to inform them of the missing students. This time, F.C. and H.S. stayed out overnight. They were found the next day and returned to their group homes.
30As a result of that AWOL, the Naulls held F.C. back from school on December 5, 1996, spoke to him about his inappropriate behaviour and peer pressure, and contacted Mr. Conte. According to Mrs. Naulls, Mr. Conte confirmed that H.S. was to be escorted to her taxi at the end of the school day, and indicated that the school would be watching James Franski, a third student in the DC Class who allegedly had conceived the runaway plan, “very carefully”.
31When the school principal learned of the December 4th AWOL, she met separately with each of Mr. Conte, the computer skills teacher and the educational assistant for the DC Class. She testified that she instructed her staff, including Mr. Conte, to be “extreme[ly] vigilant” to ensure that H.S. and F.C. were always kept in eyesight of the educational assistant when they were travelling between classrooms and that they were monitored in class. Consequently, it was her understanding that, in the future and for as long as Mr. Conte thought appropriate, Mr. Conte would hold F.C. back for a short time at the end of the school day until H.S. was in her taxi.
32Although Mr. Conte indicated that he did not recall meeting with the principal following the December 4th AWOL, he testified that, during the balance of December, he held F.C. back at the end of the school day on two or three occasions. He also spoke with F.C. again to explain to him that his actions were inappropriate, and to impress upon him the need to inform his parents and guardians of where he was going and what he was doing.
33Connor Group Homes prepared an incident report for Elaine Connor in December concerning the December 4th AWOL. The report recorded F.C.’s suggestion that his classmate, James Franski, had planned the AWOLs. Mrs. Connor testified that the report would have been forwarded promptly to the Society. However, no copy of the report was found in the Society’s files. Further, the report was not provided to the High School or the Board and, according to the Board’s witnesses, no one reported to the High School or the Board before January 1997 that James Franski may have been involved in the AWOLs.
34On December 17, 1996, a regularly scheduled plan of care meeting was held concerning F.C.. It was attended by Beverly Naulls, Elaine Connor, F.C., W.C., and James Sargent (F.C.’s case worker at the Society). The four AWOLs were discussed in detail and Mr. Sargent learned of them for the first time.
35According to the Naulls Group, at the time of the December 17th meeting they understood that an effective plan was in place at the High School to prevent AWOLs involving F.C. and H.S.. They believed that the plan consisted of escorting H.S. to her taxi at the end of the school day, holding F.C. back until H.S. had left for or boarded her taxi, supervising the two students between classes, and watching James Franski. They believed that the plan was working, and had failed on December 4th only because the students had left the High School prior to dismissal time. Mr. Sargent understood that H.S. was to leave school in her taxi before F.C. would be allowed to go to his school bus. He was satisfied that the plan was reasonable, straightforward, and likely to be effective.
36Unfortunately, no one from the Board or the High School was informed of, or invited to attend, the December 17th plan of care meeting. Further, neither the appellants or the Society communicated with the Board or the High School before, at, or after that meeting to confirm the elements of the plan and that they were in place.
37From December 5, 1996 to January 6, 1997, no extra or special supervisory arrangements for F.C. were arranged by any of the Naulls Group, the Board or the Society. The end-of-the-day student escort arrangement for H.S. continued during that period.
38On January 6, 1997, the first day of school after the Christmas holidays, Mr. Conte saw and spoke to H.S.’s student escort when she arrived at the end of the school day to accompany H.S. to her taxi. Mr. Conte saw them walk towards the school exit to the busing area, but did not see H.S. get into her taxi. Subsequently, it was suggested by other students that H.S. was persuaded by James Franski to leave her taxi, and that she and F.C. then left the High School property, leading to the calamitous results which precipitated this action.
(4) The Proceedings Below
39In the ensuing litigation, F.C., his biological father, and his sister sought damages for negligence from the Naulls Group, the Board, and the Society. The quantum of damages was agreed upon by all the parties. Liability was the only live issue.
40After a four day trial in December 2001, the jury concluded that the Board had not been negligent. It found the Naulls Group negligent for:
(i) failing to communicate the AWOL incident of November 8, and likely the November 25, 1996 AWOL incident, to the [High School];
(ii) failing to maintain proper records of communications with the [High School] and the Society; and
(iii) failing to take the proactive measure of using one of their other resident children at the [High School] to help ensure that F.C. came home with him on the bus (or [putting some] similar arrangement [in place]).
41In addition, the jury found that the Society was negligent in the following respects:
(i) having been made aware of all four AWOL incidents at the plan of care meeting on December 17, 1996, James Sargent’s concern should have been raised for not having heard of them earlier; and
(ii) Mr. Sargent should not have taken the “plan” [to deal with the AWOLs] at face value, but should have verified it with the [High School] directly.
42The jury attributed 80% liability to the Naulls Group, and 20% to the Society. On December 11, 2001, McWilliam J. granted judgment against the Naulls Group and the Society in accordance with the jury’s verdict. The action as against the Board was dismissed.
B. ISSUES
43The appellants argue that it was unjust and unreasonable for the jury to find that the Board was not negligent, and to assign 80% liability to them. Their challenge of those findings gives rise to the Society’s cross-appeal only if the appeal succeeds, such that the percentage liability of the parties must be reapportioned. In that event, the Society submits that a further issue arises, namely, whether the jury’s verdict resulted in a substantial wrong or miscarriage of justice, requiring a new trial.
C. ANALYSIS
(1) The Applicable Standard of Review
44The verdict of a jury in a civil case will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the appellate court that no jury, reviewing the evidence as a whole and acting judicially, could have reached it: McCannell v. McLean, [1937] S.C.R. 341 at 343; Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 at 593 (S.C.C.); Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital (1994), 110 D.L.R. (4th) 289 at 292-93 (S.C.C.); Woelk v. Halvorson (1980), 114 D.L.R. (3d) 385 at 388-89 (S.C.C.); Vancouver–Fraser Park District v. Olmstead (1974), 51 D.L.R. (3d) 416 at 419-21 (S.C.C.); and Koukounakis v. Stainrod (1995), 23 O.R. (3d) 299 (C.A.).
45The appellants candidly acknowledge the heavy burden on them in this appeal, given the considerable deference accorded to a jury’s findings in a civil negligence proceeding. As made clear by the Supreme Court of Canada in Housen, a standard of palpable and overriding error applies to appellate review of findings of negligence made by either a trial judge or a jury, unless the challenged findings rest on an incorrect statement of the applicable standard of care, a failure to consider a required element of a legal test or a similar error in principle, thereby amounting to an error of law and attracting the less deferential standard of correctness for appellate review. As stated by Iacobucci and Major JJ. in Housen at pp. 595-96:
The general rule…is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.
46In addition, the appellants properly concede that the apportionment of liability in a negligence case is primarily the function of the trier of fact. As observed by Bastarache J. on behalf of the Supreme Court of Canada in Ingles v. Tutkaluk Construction Ltd. (2000), 2000 SCC 12, 183 D.L.R. (4th) 193 at 223: “Appellate courts should not interfere with the trial judge’s apportionment [of liability] unless there is demonstrable error in the trial judge’s appreciation of the facts or the applicable legal principles” [citations omitted]: see also Levesque v. Levesque (2001), 151 O.A.C. 227 (C.A.). As a general rule, when the findings of fact made by the trier of fact are accepted, a very strong and exceptional case is required to support appellate interference with the apportionment of liability made by the trier of fact: Sparks v. Thompson (1974), 46 D.L.R. (3d) 225 (S.C.C.).
(2) The Jury’s Findings Concerning the Board
47It is common ground that the Board owed a duty of care to F.C. and that school authorities are bound by the standard of a reasonably careful or prudent parent in providing for the supervision and protection of students in their care: Thomas v. Hamilton (City) Board of Education (1994), 20 O.R. (3d) 598 (C.A.); and Myers v. Peel County Board of Education (1981), 123 D.L.R. (3d) 1 (S.C.C.). On the facts here, however, the appellants argue that the standard of care owed by the Board to F.C. was higher than the degree of care and prudence owed to a secondary school student who was not developmentally challenged.
48It is clear on the developed jurisprudence that the reasonably prudent parent standard of care cannot be applied in the same manner and to the same extent in every case. The application of the standard varies from case to case depending upon a host of factors, including the age, skills, competency, and capacity of the student involved, and the nature of the activity at issue: Myers at 10, per McIntyre J.
49In this case, F.C.’s competency and capacity were less than those enjoyed by non-DC Class students and by some other DC Class students, including H.S.. The Naulls Group, in addition to the Board, had parental obligations to F.C. in consequence of his care arrangements. In turn, the Society owed a duty to F.C. to ensure that he was placed in a safe group home that was capable of meeting his special needs. In many important respects, therefore, a shared parenting arrangement existed for F.C.. In my view, the standard of care to which the Board was bound must be applied in the context of those factors.
50However, the fact that the standard of care must be adjusted to conform with the particular circumstances of this case does not result in a different legal characterization of the standard. As applied in the Thomas case, the issue is not one of the proper definition of the standard of care, or of its characterization as a “higher” or “lower” standard compared to the normal standard for school authorities; rather, the important questions here are how the standard is to be applied in this case, given F.C.’s particular circumstances, and whether the Board exercised the care that would be expected of a reasonably prudent parent in like circumstances.
51The appellants argue that it was unjust and unreasonable, given the evidence at trial, for the jury to find that the Board was not negligent in causing or contributing to F.C.’s injuries. The appellants assert and rely on the following:
(i) under the Board’s transportation manual, it was responsible for the safety and security of students from the time they got on the school bus in the morning until they got off the school bus at the end of the day;
(ii) the Board was aware: (a) that F.C. was a special needs student with a mental age of 5 to 7 years; (b) of F.C.’s relationship with H.S., a sexually aggressive 15 year-old girl with a much higher level of mental functioning; (c) of at least two AWOLs involving H.S. and F.C. prior to January 1997; and (d) that H.S. was the “problem” in terms of F.C. running away;
(iii) the Board agreed at trial that holding F.C. back for just a few minutes at the end of classes, until H.S. was in her taxi, would effectively prevent the possibility of the two students running away together. Further, after the December 4, 1996 AWOL, the Board believed that extreme vigilance was required to ensure that H.S. and F.C. would not run away again, and that F.C. ought to be detained after class until H.S. got into her taxi. Yet, the Board failed to continue the hold back arrangement;
(iv) on January 6, 1997, the two students were under the care, control and supervision of the Board;
(v) the Board acknowledged that if F.C. had been held back at the end of the day on January 6, 1997, as was done on other days following the November 1 and December 4, 1996 AWOLs, the January 6th AWOL would not have occurred;
(vi) the Board did not communicate to F.C.’s bus driver, or to the bus company, any difficulty or concern regarding F.C.’s transportation arrangements or runaway activities; and
(vii) the Board failed to adequately monitor James Franski.
52Those factual assertions, some of which are disputed, put the appellants’ case against the Board at its highest. In my view, however, when the evidence at trial is considered as a whole, it was open to the jury, acting judicially, to conclude that the Board was not negligent. I reach that conclusion for several reasons.
53First, although the appellants were aware of the November 1996 AWOLs, the jury found that they failed to communicate the November 8th AWOL, and “likely” failed to communicate the November 25th AWOL, to the High School and, hence, to the Board. Those critical findings of fact required an assessment by the jury of the credibility of Mrs. Naulls and the reliability of her claim that she reported the November 25th AWOL to Mr. Conte, and the credibility of Mr. Conte, who testified that he did not know of the November AWOLs prior to January 1997. The appellants do not argue that those findings of fact by the jury were based upon a misapprehension of the evidence or other overriding and palpable error justifying appellate intervention. The jury’s findings indicate that it rejected the appellants’ evidence on the important issue of whether the Board knew of the November AWOLs.
54Second, the appellants failed to inform the Board or its representatives of the plan of care meeting for F.C. held on December 17, 1996 or the matters discussed at it. Although Mrs. Naulls and Mrs. Connor described their understanding, at that meeting, of what they termed the “school’s plan” to prevent future AWOLs, I am at a loss to understand how prospective reliance reasonably could be placed by the Naulls Group – or the Society – on a preventative plan of action which was neither discussed or confirmed with the Board or the High School at or after the December 17, 1996 meeting. Moreover, had the Board or its representatives been included in or told afterwards of the matters discussed at the plan of care meeting, they would have learned of the November AWOLs.
55As a consequence of the non-disclosure of the November AWOLs to the Board or its representatives, the Board was unaware of an emerging, and significant, pattern of runaway activities by F.C. and H.S.. Both the principal and Mr. Conte stressed in their trial testimony that, had they known of all four AWOLs before January 1997, immediate and additional action would have been taken by them.
56Instead, prior to January 1997, the Board’s knowledge of the AWOLs was confined to knowledge of the November 1st and December 4th AWOLs. After the November 1st AWOL, H.S.’s after-school student escort was arranged. The December 4th AWOL occurred before – albeit only shortly before – the end of the school day, at a time when H.S. and F.C. were in transit between classrooms. Thus, as argued by the Board on this appeal, that AWOL did not involve a failure of the transportation arrangements for H.S. and F.C..
57The principal testified that her post-December 4, 1996 direction for “extreme vigilance” relating to F.C. and H.S. was concerned with their travel with other members of the DC Class between classrooms. Thus, the direction was responsive to the events of December 4, 1996. It was not intended to ensure that the two students did not run away from the school busing area; nor did it address end-of-day transportation arrangements. Insofar as the principal and the DC Class teacher were aware prior to January 1997, the transportation arrangements for F.C. and H.S. were working, and had worked since November 1, 1996.
58In my view, on that evidence, it was open to the jury to conclude, as it implicitly did, that the Board’s belief in the effectiveness of the transportation arrangements was one which a reasonably prudent parent would hold in the circumstances.
59Third, the appellants were aware before January 1997 of the supervisory escort arrangements for H.S.. They also knew that they were free to apply for additional supervision for F.C., either to the Board or the Society, or to make such an arrangement on their own. They pursued none of those options. They also failed, before or after the December 4th AWOL, to discuss with the Board or the High School the merits of such an arrangement. As found by the jury, they chose not to effect a supervisory measure on their own, whether by enlisting the assistance of another group home resident or otherwise.
60Finally, the actions taken by the High School to guard against unsafe incidents, and to supervise DC Class students at the end of the school day, including F.C. and H.S., were established at trial by the Board. In that connection, the principal testified that instruction of the DC Class emphasized student awareness of safe practices, including the loading of buses. In addition, a staff supervisory presence was evident in the DC Class classroom and the adjacent hallway at the end of the day.
61Accordingly, while a different conclusion might well have been reached by the jury on this record given the vulnerability of F.C., there was evidence at trial which, if accepted by the jury, supported the finding that the Board was not negligent in the circumstances. I do not believe that it can be said that no jury, reviewing the whole of the evidence reasonably and acting judicially, could have made that finding. No error by the jury in its appreciation of the evidence or the applicable legal principles has been demonstrated. It follows that the jury’s findings of no negligence by the Board and no percentage liability on its part are unassailable.
(3) The Jury’s Apportionment of Liability between the Appellants and the Society
62Before this court, the appellants do not dispute the jury’s findings of negligence concerning the Society. The Society concedes that those findings are just and reasonable, based on the evidence. I agree.
63In addition, neither the appellants or the Board submit that the evidence supports any increase in the percentage liability of the Society, as determined by the jury. The appellants’ challenge of the jury’s apportionment of liability is premised on an alleged error by the jury in assigning no liability to the Board. I have already rejected that proposition. Finally, no palpable and overriding error by the jury has been established in connection with the Society’s conduct. In the absence of such error, there is no justification for interfering with the jury’s apportionment of liability as between the appellants and the Society.
D. DISPOSITION
64Accordingly, for the reasons given, the appeal is dismissed. As a result, the Society’s cross-appeal is not engaged, and it is also dismissed. The Board is entitled to its costs of the appeal on a partial indemnity basis, fixed in the amount of $12,000, inclusive of disbursements and Goods and Services Tax. The Society is also entitled to its costs of the appeal on a partial indemnity basis, fixed in the amount of $3,500, inclusive of disbursements and Goods and Services Tax. This is not a proper case for an award of costs in respect of the cross-appeal.
RELEASED:
“MJM” “E. A. Cronk J.A.”
“MAY 12 2003” “I agree M. J. Moldaver J.A.”
“I agree K. Feldman J.A.”