Decision has significant, and potentially
devastating, consequences for school districts

By Peggy Burns, Esq.

The Arizona Supreme Court, on March 14, declined to review the Court of Appeals decision in Warrington v. Tempe Elementary School District No. 3. The Warrington case concerned the issues of bus stop selection and the extent of a school district's duty to students after they have been safely discharged at a bus stop. The Arizona Court of Appeals had affirmed the jury's decision at the trial court level that the Tempe School District was 15 percent liable for injury to Andrew Warrington - in the staggering amount of $900,000. The Arizona Supreme Court's denial of the school district's petition for review now leaves intact a disturbing defeat for school districts, and school transportation departments in particular.

I will try to avoid the legal intricacies of a case which has a two or three-inch stack of paper filed with the court by both sides. Instead, I intend to focus objectively on hints for transporters that come from this case. And, although I may - or may not -succeed at these goals, I'm sure I'll have to indulge myself in a slight fit of righteous indignation at the incredible standard applied here by a court which appears to have bent over backwards in the plaintiff's favor.

Case History
On Feb. 10, 1993, then 7-year old Andrew was seriously injured after he was safely discharged from his school bus at his regular bus stop. His parents had chosen the route he was to walk from the bus stop to his friend Steve's house. Andrew and Steve walked to Steve's house together on Feb. 10, as they had been doing several times a week since classes began that school year. On this particular day, however, another boy, Michael, began to chase Andrew when the boys were about 35 feet from the bus stop. Andrew ran across a sidewalk, across a frontage road, across a median, and only then, on to Southern Avenue, a busy road with a posted speed limit of 45 mph, located approximately 100 feet south of his assigned bus stop. Andrew darted into the roadway, and into the path of an oncoming car, which hit him.

The lawsuit which followed claimed that the school district owed a duty to use reasonable care to avoid subjecting Andrew to foreseeable and unreasonable risks of harm - after he left the bus and the area of the bus stop, and after the bus driver had already pulled away. In addition, the suit alleged that the district's conduct was negligent in its selection of that bus stop for young children who lived in Andrew's subdivision. The school district argued that it only owed a duty with respect to the safety of students within its care. When the student is no longer within the school district's care, the relationship between school and student has ended, and, along with the end of that relationship, comes an end to that duty. Citing authority from other states, including Minnesota, Kansas, Florida, Oklahoma, New York, and Louisiana, the Tempe School District pointed out that it has no control over students after they leave the bus stop. The district asserted that it cannot owe a duty to a student whose parents direct or allow him to walk home from school or the bus stop.

Plaintiff Allegations
The lawsuit alleged that Andrew would not have been injured if the transportation director had placed the bus stop within Andrew's subdivision, as parents had requested. Although the transportation director did not do so because overhanging trees posed an obstacle for a school bus, the parents claimed that buses which picked up special needs students regularly entered the subdivision. There was debate throughout the court pleadings as to whether the height or length of a bus was the issue: the "mini" bus was as tall as, but not as long as, the "regular" school bus. The parents argued that the district should have had the trees trimmed. There was uneasy testimony by the transportation director regarding his efforts to contact the homeowners' association to take care of the situation.

The issues raised are often eliminated by state sovereign, or governmental, immunity statutes which render a school district "immune" from lawsuits involving certain kinds of injuries. In some states, a school district will only be liable for "willful and wanton" conduct. In others, the district may be held responsible for "operational" decisions, but not for decisions which involve policy-making. The Arizona court said that bus stop selection is a day-to-day function for which the school district could be held liable. Since the transportation director had authority to change bus stops routinely in response to parent input and other issues, this was an operational function, rather than a policy-making function. Consequently, the school district was not immune to suit under Arizona's statute. While this result will vary from state to state, the Arizona ruling is of concern to us all.

Documentation
When parents complain about the location of a bus stop, be sure to document both the complaint itself and your response to it. It can be a Maalox moment if you're asked questions on the witness stand five or six years after the fact about parental input that you've long since forgotten.

Your district should have established rules and regulations for bus stop selection. These should be specific enough to truly guide you in establishing stops, but not so limiting that you can't select a stop without running afoul of one of the parameters. As with any policy, it is critical that you actually follow the rules and regulations you establish. Be sure that you fully investigate proposed options. For example, if a situation warrants contacting city or homeowners' association officials, be sure you do so.

If it is necessary for you to place a stop near a busy street, make note of the alternative stops you've considered, and why you've rejected each. Consider letting parents know what you were thinking, and make them "partners" in student safety by urging them to reinforce the behavior they expect from their children on the way home from the bus stop. (By the way, the jury did find that Andrew and his parents were 85 percent at fault for his injuries.) Urge parents to determine and review with their children the route the parents want the child to walk from the bus stop to his home. Reinforce that this is the parents' responsibility.

Parental Responsibility
And now to vent. The court apparently agreed with the plaintiff's point that it is foreseeable that young boys will chase each other and that, therefore, placement of a bus stop for elementary school students in any proximity to a busy street is wholly irresponsible. Such a determination certainly limits transportation directors in their ability to select bus stops.

And what about parent responsibility? If for six months, a parent allows his child to walk home from the bus stop several times a week with only a friend to accompany him, does it suddenly become a dangerous stop because the boy is injured when he runs across a sidewalk, a frontage road and a median before reaching a busy street? There was evidence that Andrew's parents allowed him to play in a grassy area adjacent to the very road onto which he ran. Should a school district have greater responsibility to a student than do his own parents?

Moreover, the district made the point in its petition for review that "the Court of Appeals completely ignored the requirement that the risk of harm must be unreasonable" in order to impose liability on a school district for student injury. I agree with the district that, "If the risk to which Andrew was subjected was unreasonable under these circumstances, then any time a student is discharged from a bus, the student is automatically exposed to an unreasonable risk of harm. The School District could not do anything, short of escorting students directly to their front doors, to avoid subjecting them to an unreasonable risk of harm." I am frustrated by this decision because it so unabashedly expands school districts' duty. On the other hand, we must acknowledge that the district was "only" found to be 15 percent liable in terms of comparative negligence.

The value of a child's health is considerable. Since being even a little bit wrong can be extremely expensive, you must be aware of the cost of controversy. The Warrington case feels like the decision of a sympathetic court trying to find some way to apportion blame to someone other than the injured parties. Be careful not to give a court in your state anything on which to hang its pro-plaintiff hat.

· Peggy Burns is in-house counsel to Adams Twelve Five Star Schools in Colorado. You can reach her at (303) 604-6142, or at edcompli@aol.com.