School
Buses and Activity Vans:
South
Dakota A.G. Barnett's "Unofficial Opinion"
Webmaster
Note: South Dakota's Attorney General Mark Barnett recently issued an unofficial
opinion about the use of vans with a capacity of 12-15 passenger, in school service
in South Dakota. The opinion--appearing in its entirety below--was written in
response to a letter from Karon Schaack, Secretary of the South Dakota Department
of Education and Cultural Affairs. In South Dakota, an "unofficial opinion" is
issued by the Office of the Attorney General but not published in any official
state legal document. June 2, 1998 Karon
Schaack, Secretary
South Dakota Department of Education and Cultural Affairs
Kneip Building
700 Governors Drive
Pierre, SD 57501-2291
Re: School buses and activity vans
Dear Secretary Schaack:
Your recent letter indicates that the Department
of Education and Cultural Affairs has received many inquiries regarding the use
of vans with a capacity of 12-15 passengers for the purpose of transporting public
school students to various school activities. The vans in question are ordinary
passenger vans, without any special construction, equipment, lights, or coloration.
You have correctly observed that questions
have arisen regarding the legality and propriety of using such vans in light of
state statutory authority, federal statutory authority, and three letter opinions
of this Office. These opinions were fact-specific and not comprehensive. The first
(February 2, 1993) addressed only lights and coloration regulations; the second
(November 10, 1993) considered only state regulations as they existed in 1993;
the third opinion (October 1994) dealt briefly with federal regulations. Because
these opinions deal with school buses in a fact-specific manner, and because both
the federal and state regulations have been revised since 1993, it seems prudent
to revisit this subject in a more comprehensive fashion. Since state standards
were put into effect in November 1995, we will refer to these, and since federal
standards have been reenacted and modified, we will use the current version. Because
of these substantial revisions, and because this opinion is much more comprehensive
than our prior efforts, we advise considering this opinion exclusively.
Based upon the foregoing, I have concluded that
the appropriate question to be asked with regard to the issue you raise is:
Whether a van with a capacity of 12-15 passengers
may be used for transporting public school students to various school activities
when the van lacks special structural features, lighting, and coloration?
A. State Law Considerations. South
Dakota statute provides that any vehicle with the capacity of 10 or more pupils
used for transporting school children to and from school or used in connection
with school activities is a "school bus" pursuant to SDCL 32-32-1: School
bus shall mean every vehicle with a capacity of ten or more pupils excluding the
driver owned or operated by or for a school or a school district as authorized
under ? 13-29-1 and used for the purpose of transporting school children to and
from school or used in connection with school activities. South
Dakota law provides separately for structural and similar requirements for school
buses and for lights and coloration for the buses. 1.
Structural and Similar Requirements. The
South Dakota Code, and the implementing regulations, provide stringent requirements
with regard to the structural and similar components of a "school bus." The primary
statute involved is SDCL 13-29-6, which states: Each
school bus used for the transportation of school children which is owned by a
school district, a nonpublic school or alternative education program or privately
owned and operated under a contract with a school board or nonpublic school or
alternative instruction program shall be inspected before the beginning of each
school year by a representative of the Division of Highway Patrol to certify that
the vehicle complies with state law, and rules of the South Dakota Board of Education,
the Department of Commerce and Regulation and the Division of Highway Patrol.
A certificate certifying that the school bus has successfully passed the inspection
shall be issued by the Division of Highway Patrol and shall be displayed in the
vehicle above the windshield. Any school board, contractor or person operating
a school bus that has not been certified commits a petty offense. Pursuant
to SDCL 13-29-6, the Department of Education and Cultural Affairs has promulgated
administrative rules which set out "school bus standards" binding upon the user
of a "school bus." Pursuant to ARSD 24:06:07:01, these standards are applicable
to any "school bus" delivered after November 1, 1995; these structural and similar
standards do not, however, apply to buses delivered "pursuant to contracts signed
before November 1, 1995." The standards
include special requirements with regard to "school bus chassis and body and specially
equipped school buses" pursuant to ARSD 24:06:07:02; requirements with regard
to floor insulation, ARSD 24:06:07:03; requirements with regard to heaters, ARSD
24:06:07:04; requirements with regard to sound and thermal insulation, ARSD 24:06:07:05;
requirements with regard to windows, windshield, and glass, ARSD 24:06:07:06;
and requirements with regard to emergency exits, ARSD 24:06:07:07. As set forth
above, any school bus delivered after November 1, 1995, must meet all the requirements
set out in the administrative rules identified above. These standards apply to
any school bus "used for the transportation of school children." SDCL 13-29-6.
The requirement thus applies regardless of whether the school children are being
transferred to and from school, or to and from some other school-related activity.
Thus, when the requirement for a "school bus" is met--in other words, when the
vehicle is used "for the purpose of transporting school children to and from school
or used in connection with school activities" and it has a capacity of "10 or
more pupils excluding the driver"--the structural and similar requirements set
out in ARSD 24:06:07 must be met unless the bus was delivered or contracted for
before November 1, 1995. 2. Coloration
and Light Requirements. South Dakota statute
also provides requirements with regard to the color of school buses and with regard
to lights on school buses. Unlike the requirements with regard to structural and
similar matters discussed above, however, the color and light requirements are
subject to some exceptions. The pertinent
statutes are SDCL ?? 32-32-3, 32-32-4, and 32-32-5 as set out below. SDCL
32-32-3 reads:
The color of every vehicle which transports ten or more students
and is owned or operated by or for a school or school district used for transportation
of school children shall be national school bus yellow in color, in accordance
with the rules of the South Dakota board of education. However, this section does
not apply to those buses owned by a school district which are used for transporting
children to and from school activities and which are not used to transport children
from home to school and back. A violation of this section is a petty offense.
SDCL 32-32-4 reads:
No person, persons
or organizations may use the color reserved for school buses as provided in ?
32-32-3 in connection with the operation of any other vehicle or vehicles, whether
school bus or not, for purposes not connected with or incident to the transportation
of school children to and from school and as authorized under ? 13-29-1. Any school
bus which was formerly used by school districts to transport children shall be
completely repainted in a color other than national school bus yellow or any colors
commonly referred to as yellow. A violation of this section is a petty offense.
This section does not apply to school buses
if rented by or its use has been granted as provided in subdivision (1) of ? 49-28-2.
This section does not apply to school buses if they are used by a municipality
to provide public transportation in times of a local fuel shortage, as determined
by the governing body of the municipality. SDCL
32-32-5 reads:
Any school bus with a capacity for ten or more students, used
to transport children to and from a public or nonpublic school, shall be equipped
on the front and rear with alternately flashing amber caution lights and alternately
flashing red signal lights. However, this section does not apply to those buses
owned by a school district which are used for transporting children to and from
school activities and which are not used to transport children from home to school
and back. Flashing red signal lights and
flashing amber caution lights shall be of a type approved by the secretary of
commerce and regulation. These signals shall be a complete system meeting minimum
standards as prescribed by state board of education rules. When a school bus loses
its identity as a school bus pursuant to ? 32-32-4, the flashing red and amber
lights shall be removed. These statutes,
therefore, provide that any vehicle which transports 10 or more students shall
be "national school bus yellow in color," but excepts from this requirement a
school bus which is "not used to transport children from home to school and back"
but which is used only for transporting pupils to other school activities. See
SDCL 32-32-3. Similarly, SDCL 32-32-5 provides
that a vehicle with the capacity of 10 or more students must be equipped with
"flashing amber caution lights and alternately flashing red signal lights." The
statute, however, also provides an exemption for school buses "which are not used
to transport children from home to school and back," but are used only for transporting
children to other school activities. 3.
Stop Arm Signal Requirement. South Dakota
statute also provides separately for a stop arm signal. SDCL
32-32-12 states:
Any school bus purchased before September 1, 1992, may be
equipped with a stop arm signal conforming to the Federal Motor Vehicle Safety
Standard 131, School Bus and Pedestrian Safety Devices, 49 CFR Part 571.131. Any
new school bus purchased on or after September 1, 1992, shall be equipped with
such a stop arm signal. Therefore, any
"school bus" purchased on or after September 1, 1992, must be equipped with a
stop arm signal. SDCL 32-32-15 provides further requirements with regard to the
stop arm signal. There is no exemption
from the stop arm signal with regard to a vehicle which is used only for transporting
students to and from school activities and not to the school itself. This requirement,
therefore, is generally applicable to any vehicle used as a school bus for any
purpose if it was purchased after September 1, 1992. 4.
Summary of State Law Requirements. A "school
bus" is any motor vehicle with a capacity of "10 or more pupils" and "used for
the purpose of transporting school children to and from school or used in connection
with school activities." Any such vehicle must meet the requirements of ARSD 24:06:07
if it was delivered after November 1, 1995. I am unable to ascertain any exceptions.
An ordinary van does not, of course, meet the requirements for a school bus chassis
and body, for heaters, insulation, windows, windshield, and glass, and emergency
exits. Furthermore, any school bus used
either for transporting students to and from school, or to and from any school
activity, must meet the stop arm signal requirement set out by SDCL 32-32-12 if
the school bus was purchased on or after September 1, 1992. (I also note that
if a school bus was purchased before September 1, 1992, it must be equipped with
a stop arm signal by September 1, 1999.) I can discover no further exceptions
with regard to the stop arm signal requirement. Finally,
school buses must meet the coloration requirements--the use of school bus yellow--and
the emergency light requirements set out by SDCL ?? 32-32-3, 32-32-4, and 32-32-5.
Exceptions in these statutes, however, allow the use of a vehicle which is not
yellow in color or equipped with the lights set out in the statute if it is used
only for transporting children to and from school activities and not used to transport
children from home to school and back. I
especially caution, however, that this exemption from the coloration and lighting
requirements does not imply any exception from the structural requirements set
out in ARSD 24:06:07, nor does it imply any exception from the stop arm requirement
set out by SDCL ?? 32-32-12 and 32-32-15. B.
Federal Law. Federal law requirements,
as you suggest, are also pertinent to this analysis. 49 U.S.C. ? 30112 provides
generally that: A person may not manufacture
for sale, sell, offer for sale, introduce or deliver for introduction in interstate
commerce, or import into the United States any motor vehicle or motor vehicle
equipment manufactured on or after the date an appropriate motor vehicle safety
standard prescribed by this chapter takes effect [unless it complies with the
standard required by the section]. Pursuant
to this statute, the federal government has promulgated regulations with regard
to school buses, including rollover protection, body joint strength, passenger
seating, crash protection, and pedestrian safety devices. See 23 C.F.R. ? 1204
(1991); see also 49 U.S.C. ? 30125 and related federal regulations. These federal
laws are directly applicable to the manufacturer or to the party that sells the
school bus and not to the school district itself. These requirements, however,
were adopted to ensure that the school buses which transport school children are
the safest vehicles on the road and minimize the risk of injuries to passengers
in the case of accident. They were adopted specifically to insure the safety of
students. A van with a capacity of 12-15
passengers does not comply with the construction standards of these federal laws.
Therefore, a school district's use of a van which does not comply with these standards
raises potential liability concerns. See generally NHTSA Safety Statistics.
C. Liability. Your
letter has suggested that we discuss generally the liability associated with a
district's failure to comply with state and federal laws concerning school buses.
Obviously, a violation of state law directly applicable to a school district raises
direct liability concerns. Given the fact-specific nature of these concerns, I
would advise school districts to consult with their attorney and/or insurance
carrier concerning their specific liability exposure. When
a school bus does not meet current state or federal safety standards and is not
directly required to do so because it is an older vehicle and is therefore excepted
from the particular requirement, it is difficult to speculate whether liability
would be imposed. Certainly, the party litigating such a case would insure that
the court and jury was made aware of the federal and state safety standards and
that the school district had chosen to ignore them. Liability can sometimes be
based on violation of a standard adopted for safety of a particular class of persons
such as students, plus a showing that the violation caused injury to a member
of the class. Presumably, the more serious the deviation from the standards, and
the more long-standing the deviation, the greater the risk that liability would
be imposed. Again, given the fact-specific nature of this inquiry, I suggest that
any school district with nonconforming buses also contact their lawyer and/or
insurance carrier to evaluate their liability exposure.
Sincerely,
(sgn) MARK BARNETT
ATTORNEY GENERAL
MB:JPG:nan
This is an unofficial opinion of the South Dakota Attorney General's
Office. See SDCL 1-11-1. |
