By Peggy A. Burns, Esq.

The term "dangerous condition" puts fear in the hearts of risk managers and school lawyers. While state governmental immunity statutes often protect school districts and their employees from liability, personal injury from existence of a dangerous condition of public property is typically an exception to such protection.

Two recent California cases have important implications for establishment of bus stops. In both cases, the public entity that created or allowed a dangerous condition lost in court.

The first of these cases, Bonanno v. Central Contra Costa Transit Authority , (Cal. Sup. Ct., April 7, 2003), held that the location of a bus stop created a dangerous condition. In order to reach a stop established by the Central Contra Costa Transit Authority (CCCTA), bus patrons were forced to cross a busy thoroughfare at an uncontrolled location. Despite creation by CCCTA of a crosswalk, and, ultimately, installation of traffic signal lights, equipped with pedestrian push buttons, "the route . . . was unnecessarily hazardous. The shoulder was relatively narrow, and the gravel and dirt adjacent to the paved portion could be muddy. Additionally the area was often occupied by large parked trucks, and in one portion the drainage swale had eroded to within five and a half feet of the edge line. In another area of the north shoulder, pedestrians had to walk in the roadway for several feet."

Darlene Bonanno was seriously injured when a driver hit her as she attempted to walk to the CCCTA bus stop. CCCTA offered as a defense the fact that it needed to have the County's permission to move the bus stop or install a new stop. The Court found, however, that prior to the accident, CCCTA had never even requested permission. When it finally did, after Bonanno was hurt, the County Board of Supervisors approved the request, and the stop was added.

CCCTA argued that it could not be liable for an injury occurring on property it neither owned nor controlled. The Court rejected this contention, because while the County owned the street, the stop itself belonged to CCCTA. Moreover, the Court held that a dangerous condition could exist where the property of a public entity exposed an individual to danger not from the entity itself, but from the acts of a third party. Thus, so long as the condition at issue creates a reasonably foreseeable risk of the type of injury that was actually incurred, and the public entity either created the dangerous condition or has notice of the condition sufficiently in advance of the accident to have had time to remedy it, liability would be imposed.

Joyce v. Simi Valley Unified School District (Cal. App., July 8, 2003) hits even closer to home since the defendant was a school district. The case was the fourth appeal by the district from a nearly $3 million verdict against it. Then-13-year-old Jennifer Joyce was hit by a motorist while in a crosswalk on her way to Sequoia Junior High School. The school district knew of concerns of parents and district employees, including a bus driver, who had complained about the intersection.

The court imposed liability on the basis of the school district's "failure to provide adequate safeguards against a known dangerous condition." The district had allowed a gate to remain open for student access to school, thus encouraging use of the crosswalk at issue. The court found that this "open gate" policy persisted even after the City increased the speed limit as the area grew and the adjacent avenue "became a secondary highway with a traffic volume of more than 15,000 vehicles per day. Less than three percent of motorists observed the posted speed limit."

Although the law of these cases is binding only in California, it is instructive for school districts in all states. Consider implementing a legal and safety audit of your bus stops. Are they safe all year round, both morning and afternoon? Is the route students must take to the stop safe? Have traffic patterns or conditions, or residential development changed, warranting reconsideration of bus stop locations? Have parents or staff members complained about stop locations or walk paths? Do you have a solid rationale for sticking to your guns, or would change of bus stop location be both practical and prudent?

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