By Peggy Burns

In dramatic fashion, the U.S. District Court for the Eastern District of Pennsylvania has denied the Bucks County Intermediate Unit No. 22's (BCIU) Motion to Dismiss in Susavage v. Bucks Countÿ Schools Intermediate Unit No. 22 decided on Janaury 25, 2002.( 36 IDELR 32) This means the case can move forward to trial on the issues.

The Facts
Student Cynthia Susavage died as a result of strangulation on her way to school in a bus operated by Levy Bus Company. The Quakertown Community School District contracted with Levy for transportation of students. BCIU is an entity created by the Commonwealth of Pennsylvania to provide services to several school districts, including Quakertown. Cynthia had a musculo-skeletal problem which rendered her unable to sit upright independently. A special car seat was to be ordered, but was not yet available. Individuals from BCIU, Quakertown, Levy and LifePath (Cynthia's special care facility) collaborated regarding an interim measure. The four-point harness identified was supplied by BCIU, after consultation between a Levy representative and Cynthia's father.

On December 11, 1998, "the harness was put on backwards with the top of its zipper against the front of Cynthia's throat. Only two of the four points were secured and these were secured with straps from other harnesses." The child was unsupervised during the 20-minute ride to school. "During that time she became strangulated by the harness," lingered in a coma until September 25, 1999, when she died. Deliberate Indifference. The court allowed the Susavages' claims of liability for deliberately indifferent conduct by BCIU to go forward. It held that "BCIU had time to make unhurried judgments to insure Cynthia's safety." The plaintiffs based this theory on two practices: delegation of the duty of safe transport without giving Levy instructions, and distribution of the defective harness in this and similar situations " without instructions on the correct use or non-use of such devices." The court determined that BCIU had sufficient knowledge of the danger of serious harm "that would be posed by the use of any seat restraint system that had not been proven safe for the special circumstances presented." And, "BCIU left Levy to devise a means of restraint, knowing that Levy was not qualified to design and implement a safe restraint system for this disabled child."

Failure to Train
The Court inferred "that BCIU knew or must have known, given Cynthia's special needs and the numerous communications regarding her safety, that Levy needed special training and supervision to insure her safe transport." In addition, the Court notes that the IDEA specifically requires training: As part of "Assistive Technology Service," the IDEA Regulations, at Sec. 300.6, require "Training or technical assistance for . . .individuals who provide services to . . .that child."

Special Custodial Relationship
It is not uncommon for parents of an injured student to allege that a school district had a duty to protect the student from harm because of a "special custodial relationship," which imposes a duty on governmental entity when it takes physical custody of a person or otherwise prevents him from helping himself.

The courts have often rejected the application of this doctrine to school districts in connection with the fact that the student must attend school. But in the Susavage, case, the Court noted that "Cynthia . . .lacked the capacity to help herself once she was restrained by the harness that secured her to the bus seat."

In addition, "Cynthia's physical handicaps, educational placement, and special transportation needs could be viewed as giving her parents a statutory right to rely on BCIU, through Levy, as the only reasonable means of transporting their child safely to a meaningful public school educational opportunity. Moreover, Cynthia's parents were caring at home for her sister who suffered from the same seizure disorder . . .Thus, a reasonable jury could find that BCIU, through Levy, elected to physically restrain Cynthia's personal liberty on the bus, giving her no reasonable means of self-protection and thus triggering an affirmative constitutional duty to protect her during the transport."

State-Created Danger
The Court found that a reasonable jury could impose liability on BCIU under the doctrine that this governmental entity created the danger, and was deliberately indifferent to the danger it created. Given the known risk of serious harm to Cynthia, and the fact that the injury was the "direct result of the type of harness utilized, the way in which it was applied, or the choice that she be transported unattended," a jury could find that "BCIU created an opportunity that would not otherwise have existed for the child to suffer strangulation.

What does it mean?
While the only decision made is that the case can go to trial, the implications for transporters are considerable. First, consider the responsibilities which a school district or intermediate unit keeps despite its delegation of duties to a contractor: appropriate training, specific instruction, and selection of necessary equipment are absolute necessities, and must be provided after careful consideration of the specific needs of the student involved. And, this case "ups the ante" when a child is restrained. In addition, consider the "special custodial relationship" that might be created in other situations brought on by a child's dependency on a driver or attendant, or, for example, in situations in which the child cannot communicate. Finally, the only pleading before the Court was BCIU's Motion to Dismiss. Stay tuned for further proceedings involving the contractor, the School District and the Special Care Facility.

Peggy Burns is Staff Counsel for Adams Twelve Five Star Schools in Northglenn, CO. She can be reached at (303) 604-6142, or at edcompli@aol.com.

This article first appeared in the March, 2002 issue of School Transportation News. All rights reserved.