By Peggy A. Burns, Esq.

It seems like there were more school transportation cases than ever in 1999. There were also significant cases decided by the U.S. Supreme Court which will affect transporters from now on. Those cases have been the subject of extensive discussion in previous issues of School Transportation News. A key Eighth Circuit decision regarding choice transportation was the subject of an article in the August 1999 issue of STN (See "District Wins Stunning Victory in Schools of Choice Transportation Case," p.4). This month we'll look at some of the cases which focused directly on school transportation. In the September issue we'll have Part II.

A considerable number of the cases decided were state court cases. That means they are not binding on the courts of other states. Nevertheless, they can be extremely instructive as to how a court might consider a particular issue.

Product Design

Is a manufacturer responsible for injury if it fails to offer an optional safety feature as standard equipment?

Driver Scarangella was hurt when another driver, operating her bus in reverse, struck and severely injured Scarangella in the bus parking yard. The vehicle was a new bus sold to Huntington Coach Corp. by Thomas Built Buses, Inc. While Thomas offered a back-up alarm as an optional safety feature, Huntington's president chose not to purchase it because "it screams" when a bus is put in reverse gear, and residential neighbors around the bus yard would complain. In this aspect of the case, Thomas objected to Scarangella's being allowed to show a design defect where the back-up alarm was not standard equipment.

The court determined that a product is not defective where"(1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer's use of the product.

In such a case, the buyer, not the manufacturer, is in the superior position to make the risk-utility assessment, and a well-considered decision by the buyer to dispense with the optional safety equipment will excuse the manufacturer from liability." Here, the lack of a back-up alarm on the bus was not a design defect. Scarangella et al. v. Thomas Built Buses, Inc. v. Huntington Coach Corp., 1999 WL 452196 (N.Y.App.), July 6, 1999.

Bus Stop Selection

Is a school district liable for student injury if it locates a bus stop near a busy street?

7-year old Andrew's parents sued because the boy was struck by a car when student Michael chased him onto a busy street after the boys had exited the school bus. The trial court found that the school district had a duty to the children who rode the school bus "to situate bus stops so as to minimize the known dangers from outside sources and from themselves." The court also found that the district had breached that duty, and entered judgment against the district for $900,000, assigning 15% of the responsibility for Andrew's injuries to the school district. (45% of the fault was allocated to Andrew, 40% of the fault was allocated to his parents.) The school district appealed.

The court upheld the trial court's determination that the district breached its duty to protect Andrew from a foreseeable risk of unreasonable harm. Parents had complained about the stop's proximity to a very busy street, requesting that the stop be relocated inside the subdivision. The court found that it was foreseeable that a child Andrew's age would run onto a busy street. It also found that the district could have easily placed the bus stop within the subdivision.

"Even though they were aware of the obvious danger, those in charge of determining where the bus stop should be located elected to place the bus stop in a location the children living in the Hidden Hollow Subdivision to face the traffic on Southern Avenue on a daily basis." The school district has appealed. Warrington v. Tempe Elementary School District No. 3, 1999 WL 718618 (Ariz. App. Div. 1), Sept. 16, 1999.

Governmental immunity

Is a school district protected by governmental immunity when a driver fails to secure a student in a wheelchair?

A wheelchair student was injured when the bus driver failed to secure the student in her wheelchair before she disembarked from the bus in violation of school district regulations. Like many other states, Ohio's governmental immunity statue includes an exception to immunity for "injury, death, or loss to person or property caused by the negligent operation of any motor vehicle."The court determined that the "operation of a motor vehicle" encompasses "more than the mere act of driving the vehicle involved." Instead, securing passengers in their wheelchairs when assisting them on or off the school bus "was part of the bus driver's duties and an integral part of his operation of the school bus." The appellate court held that the trial court's denial of the school district's motion to dismiss was appropriate. Groves v. Dayton Public Schools, et al. 1999 WL 172901 (Ohio App. 2 Dist), March 31, 1999.

The same conclusion was reached in a similar Delaware case decided this year. In addition, securing a student while riding a school bus is a ministerial rather than a discretionary, causing the school district to be subject to liability. Stevenson v. Brandywine School District, et al. 1999 WL 742932 (Del. Super.), July 9, 1999.

State regulation directed to passenger. Where a state regulation requires all passengers to be seated when the school bus is in motion, the regulation imposes an obligation on the passengers, and not on school bus drivers. Therefore, it was not relevant whether or not Septran moved the school bus before student Shvartsman was seated, and the company was not liable for knee injuries she received. Shvartsman v. Septran, Inc., 711 N.E. 2d 402 (III App.) May 3, 1999.

Sexual Harassment on the School Bus

When is a school principal responsible for addressing bus behavior?

A female high school student was sexually harassed by a male student on the school bus. Both students attended an alternative high school for students with special needs, and rode a "mini-bus" to the school. The girl complained repeatedly to the high school principal about the conduct, which escalated when the boy engaged in a pattern of grabbing her breasts and genital area. The bus driver was not aware of the harassment. The court found that a high school and its principal, who have a knowledge of wrongful conduct taking place on the school bus, have a duty to take steps to prevent injury to their students while on the bus.

Here, the principal was immune from a negligence lawsuit under state law because there was no proof of willful or wanton conduct or gross negligence on the part of the principal.S.P. v. Collier High School, 725 A.2d 1142 (Superior Court of New Jersey, Appellate Division), March 11, 1999.

When will a contractor or school district be liable for sexual harassment on the school bus?

A student was sexually assaulted by another student on the school bus. The court allowed the case to proceed to trial to determine whether the bus company and the driver had notice of the fact that the assault was foreseeable because they knew of the student's violent sexual tendencies. The case against the school district was also allowed to go forward because "it retained control and custody" over the victim, and the district was unable to show that it had no notice of the other student's sexual tendencies. Camacho v. East Ramapo Central School District, et. al., 690 N.Y.S.2d 730 (Appellate Division, New York), June 1, 1999.

Source: The November 1999 edition of School Transportation News