Through the Rear View Mirror: 2005 in Review

Part II

By Peggy A. Burns, Esq.
Special to School Transportation News*

This installment of "Through the Rear View Mirror" will focus on special needs transportation and student injuries. As you'll see, there's considerable overlap between the two categories this year. Part I in February focused on liability for school transportation contractors.

Special needs transportation

In Mukilteo School District , 43 IDELR 231 ( April 29, 2005 ), the district required full-time use of a safety harness for a student with oppositional defiant disorder and intermittent explosive disorder who had been violent toward a bus aide. His father objected, asking that the harness be worn only when necessary. The matter was unresolved, and an additional violent outburst occurred. Over the dad's objection, the IEP team mandated daily use of the harness, subject to quarterly evaluation which would include the father's input.

After a time, the boy's behavior improved and the district contemplated a reduction of the harness use. Because the father was hospitalized, he was not present at the quarterly IEP team evaluation where decreased use was proposed and implemented. Within days of the decision to decrease the harness use, the boy had a significant outburst during transportation, and the district withdrew its proposal to reduce the mandatory wearing of the harness. Dad objected both to the district's having held the quarterly meeting without him and to the reinstated mandatory use; a hearing ensued. The Washington State Educational Agency agreed that the team could propose decreased use of the harness without having dad present, since the change would have been consistent with the parent's wishes. The Agency also approved the district's decision to reinstate the harness because of the "clear and present danger" represented by the boy's behavior.

Montoya v. Houston Independent School District, 2005 Tex. App. LEXIS 2409 ( March 31, 2005 ) concerned injuries to a special education student who fell from the emergency exit of a moving school bus. The incident occurred several times within a week of the student freeing himself from his child-safety restraint and opening the exit door. The court determined that the state's governmental immunity statute operated in the district's favor, and dismissed the case.

In District of Columbia v. Ramirez , 377 F. Supp. 2d 63 ( July 1, 2005 ), the court agreed that, without an aide to assist him onto the school bus, a student (for whom transportation was a related service) could not attend classes. In fact, the boy had not been at school for two years, and had only "minimal home instruction" during that time.

Although the district argued that door-to-door transportation was not required by the IDEA, the court found that the student's non-attendance was due to his inability to travel from the door of his family's apartment to the school bus. The court also deferred to the hearing officer's determination that it would not be unreasonable for the district to provide the requested service.

K. M. v. Hyde Park Central School District , 381 F. Supp. 2d 343 (August 2005) involved a 13 year-old eighth grader with pervasive developmental disorder and dyslexia. The boy was the victim of repeated instances of being called "stupid," "idiot," "retard" and other "disability-related insults" and acts of "physical aggression and intimidation" by other students while in school and on the school bus. Although the student and/or his mother reported each incident to administrators at the school, "no action was taken to protect (the student) from further harassment." After the first incident on the bus the boy's mother sought to speak with the superintendent (but "no one was available to talk to her") and also tried to meet with the director of transportation "but he was not available." She claimed that the messages she left were not returned. The court concluded that the many disputed issues of material fact necessitated a trial.

Student Injury

In Simmons v. Columbus County Board of Education , 615 S.E.2d 69, NC App. ( July 19, 2005 ) driver inaction during a student fight led to serious injuries for an 11-year-old girl. The driver did not respond in accordance with the driver handbook, which directed pulling off the road to a safe place, restoring order and reporting misbehavior. The girl was beaten on the school bus by an eighth grader who was nearly twice her size in weight, and was 6-feet tall compared to her height of 4 feet. The student's lawsuit against the school district was successful; the court found that the driver had not acted in a reasonably prudent manner.

Hamlin v. City of Peekskill Board of Education, 377 F.Supp.2d 379 (July 13. 2005). A teenager with special needs sued the transportation company and the school district after she was allegedly coerced by another student into committing a sexual act on the school bus. Finding no affirmative act by the district that exposed the student to danger, or any willful and wanton conduct by the company, the court determined there was no duty to ensure that, essentially, no harm would befall the student from any source. The school district had contracted "with a well-known transportation provider, pursuant to a contract that required the bus company to comply with all applicable laws." Both a driver and monitor supervised students. There had neither been notice to the district that the student had ever been previously abused by either the student at issue or any student, nor had there been notice of "any special issues relating to her transportation (such as the need to keep her away from boys.)"

Doe v. Rohan , 793 N.Y.S.2d 170 ( April 18, 2005). A 9-year old student was sexually abused and molested for the better part of a school year by a school bus driver employed by the company contracted with the school district. The district and company learned of the abuse when a student who had been present told his father about the driver's actions. The driver had no prior criminal history, no prior complaints of improper conduct during his 27 years of employment as a driver and had an exemplary employment record. In addition, where his "acts of sexual abuse and molestation were a clear departure from the scope of his employment, committed solely for personal reasons, and unrelated to the furtherance of the employer's business," neither the district nor the company could be held liable.

In School Board of Miami-Dade County Florida , 2005 Fla. App. LEXIS 6531, parents claimed that their son had been falsely imprisoned when a driver got lost on a route with students on the first day of school. That claim was resolved in the district's favor on summary judgment. In the remaining aspect of the case, the boy's parents sued the district for his pain and suffering and unwillingness to ride the school bus after he became considerably disturbed during the very long time on the bus and urinated on himself. The court determined that the 4-year old special needs child had not suffered actual physical injury or impact but only intangible emotional injuries, so the parents could not recover against the school district.

Though unusual, the claim of false imprisonment also played a role in Peronteau v. Gross School Bus Service Inc., 2005 U.S. Dist. LEXIS 1685 (Feb. 2, 2005), a decision denying plaintiffs' request for a new trial despite the jury's verdict in favor of the defendants. The driver did not allow student "K.P." off the school bus at the proper stop. Among the claims at issue were that the school district and bus contractor acted in willful disregard of the student's safety, and the district created an opportunity for the bus driver to "imprison" K.P. These were resolved in favor of the district and contractor. The jury found that although the driver intentionally confined the student against his will his conduct was not a substantial factor in creating harm to K.P.

In Mason v. Metropolitan Government of Nashville , 2005 Tenn. App. LEXIS 633
(September 30, 2005 ), a student cut another student on the school bus with a razor taken from a cosmetology kit. Where there was no prior violent activity by either student, and no reason to believe such injury would occur, the harm was not foreseeable, and the district was not liable.

Peggy Burns is Staff Counsel with Adams 12 Five Star Schools in Thornton, Colo. She is also editor of Legal Routes and co-author of School Bus Stops: A Safety Guide for Transporters. She may be contacted at 720/972-4004 or myroadmap@legalroutes.com.

* This article first appeared in the February 2006 edition of School Transportation News. All rights reserved.