New York School Bus
Case Raises Significant Issues

By Peggy A. Burns, Esq.

(July 2000) - Certain themes which reoccur in school law cases bring fear and trembling to the hearts of school district administrators in all departments. Some of these are the vulnerability of special needs students, the creation of an A unreasonable risk of harm, the duty of care imposed on school districts, and liability for sexual harassment. These themes resound in both school bus and classroom lawsuits alike. All four themes came together in a recent New York school bus case, David XX v. St. Catherine ' s Center for Children .

David XX concerns the sexual abuse on the school bus of an emotionally disabled 6-year-old by a 13- year-old student. Although both boys attended a private school, the fact pattern raises issues which are important for school districts and bus contractors alike.

David XX is the father of Michael who allegedly was abused by another student, Thomas, over a six week period during the summer of 1994. The boys received special education services at St. Catherine ' s Center for Children under a contract with the City School District of Albany. Transportation was provided by Albany Yellow Communications Company, also under contract to the School District.

Although the defendants sought dismissal of the case, the Court determined that it would proceed to trial to resolve factual disputes. One of these disputes concerned the contract between the School District and Albany Yellow. Although the transportation contract required the presence of an aide on buses transporting certain students, including Michael, there was conflicting testimony as to whether there was an aide on the bus when the boy was allegedly abused. Michael ' s mother testified that, even before she had learned of the abuse, she telephoned Albany Yellow to complain about the absence of aides on the bus, and about the fighting and other violence that Michael had reported to her. If a contract, or an IEP, or a school district policy requires the presence of an aide at all times, there should not be conflicting testimony as to the presence of an aide! How would you have handled these complaints from Michael ' s mother?

A second issue was Albany Yellow ' s contention that it knew nothing of Thomas ' behavior, or the fact that the boy had a documented prior history of aggressive sexual dysfunction. The Court noted, however that the plaintiffs had raised as issues the allegation that the behavior of some of the emotionally disturbed children was the very reason why there was supposed to be aides on the bus. Do you insist that school districts share essential information about students ' histories with you when such behavior would impact the bus ride? The law clearly permits the sharing of this information.

The School District and the private school both sought to end the case against them claiming that they had no duty of care once Michael left the school ' s custody and control. The Court noted, A Ordinarily, the duty of care imposed on a school district, and in this case a private school, terminates upon a student ' s release from their physical custody. Likewise, where a school district hires an independent contractor to provide transportation services, it will not ordinarily be liable for injuries sustained in connection therewith. Thus, there are limitations on the extent of potential school district liability once its direct relationship with the student has come to an end.

However, many cases have noted during the last year that there are times when a school district can be liable for student injury even after the student is no longer in the district ' s custody. As the David XX court said, This general rule will not apply, however, where the student is released into circumstances which pose a foreseeable risk of harm. Consequently if the school and/or school district were aware of an unreasonable risk posed by the conduct or nonfeasance of the bus company and failed to take steps to minimize the risk despite being in the best position to do so, liability may ensue.

Because of the testimony offered by Michael ' s parents that they had notified the school and the school district both of the absence of aides, and of the abuse of their son, the court found that the plaintiffs had raised questions as to the presence of an unreasonable risk of harm. Increasingly, courts have indicated that liability will turn on what the school district knew, and when it knew it. The question of these defendants ' knowledge of Thomas ' prior history and assaultive behaviors was also an issue.

And if having to go to trial weren ' t enough, the Court allowed the plaintiffs ' claim for punitive damages to stand. To recover punitive damages, plaintiff must demonstrate that the party ' s conduct was so reckless or negligent as to constitute a conscious disregard of the rights of others.

The Court found that a reasonable judge or jury could find that the defendants had exhibited such a conscious disregard of Michael ' s rights.

This case contains significant warnings to school districts and contractors alike. First, ensure that you are in compliance with the law, with policy, and with an applicable contract. Second, be sure you take appropriate action when you are put on notice of the potential of harm to students.

Third, if you are in compliance and you have taken appropriate action, be sure you can document it.

Peggy Burns is the in-house counsel to Adams Twelve Five Schools in Broomfield, Colo. She can be reached at (303) 604-6142.