Thursday, May 28, 2009
C.A. Revives Suit Over Injuries to Boy Hit by Car After Leaving School Bus
By a MetNews Staff Writer
The Fourth District Court of Appeal has reinstated a suit on behalf of a boy who was hit by a car after being allowed to leave his school bus when he was six years old, the Fourth District Court of Appeal has ruled.
A reasonable jury may conclude the driver, an employee of the Cajon Valley Union School District, was negligent in allowing the child to exit the bus after telling the driver his parents were coming for him and that he had seen his father’s car, Justice Richard M. Huffman wrote for Div. One.
Huffman’s May 20 opinion was certified yesterday for publication.
The student, identified in the opinion only as Eric M., was a first-grade student whose parents paid a fee for him to receive transportation to and from school. His parents signed paperwork authorizing the bus to drop him off at 2:35 p.m. daily at a specified location near his home, but he took the bus irregularly because sometime his parents would pick him up.
The school district, in accordance with state law, had a transportation safety plan. It provided that children who were signed up were permitted, but not required, to ride the bus.
Evidence submitted in connection with the district’s motion for summary judgment, and the plaintiff’s motion for summary adjudication that the district had a duty not to release Eric from the bus under the circumstances, indicated that on the day of the accident, Eric boarded the bus as usual.
Within a minute of boarding, however, he told the driver he saw his father’s car and was going to drive home with him. In fact, however, the father was not there, and he started to walk with some other students in the direction of his home.
He walked about a half-mile before being struck by a car crossing a busy street.
Eric’s mother, as guardian ad litem, sued the school district and the driver of the car, who settled. The school district denied negligence and pled a number of affirmative defenses, including immunity from liability for injuries incurred off school premises under Education Code Sec. 44808.
The statute provides immunity to school districts and their employees for injury occurring “at any time when such pupil is not on school property, unless such district, board, or person has undertaken to provide transportation for such pupil to and from the school premises [or] has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.”
The law further states:
“In the event of such a specific undertaking, the district, board, or person shall be liable or responsible for the conduct or safety of any pupil only while such pupil is or should be under the immediate and direct supervision of an employee of such district or board.”
San Diego Superior Court Judge Ronald Prager, in ruling for the school district, reasoned that the district was immune because the accident occurred off campus and the district had not “undertaken” to provide Eric with transportation that day because he left the bus before it departed the school. Nor, he said, was the driver obligated to detain the boy in order to determine whether he actually had alternate transportation.
Huffman, however, said Sec. 44808 immunity did not necessarily apply.
He rejected the district’s argument that it could not be held liable because it is not statutorily required to provide transportation. The argument “disregards the affirmative undertaking by the District to provide bus transportation, and the resulting duty of providing...reasonable care,” the justice wrote.
“Once the child routinely boarded the bus, the situation changed from one in which a student does not utilize bus service at all,” he added. “The school here was a full participant in the process of getting the child to and from school, and it provided some oversight in the form of staff monitoring.”
The jurist went on to say that there is evidence showing that the district undertook to supervise the transportation process, by having students board buses on campus and by having staff members assigned to monitor those departures.
A trier of fact must determine whether the district exercised reasonable care, the justice wrote, explaining:
“A reasonable juror could conclude that it was foreseeable that a six-year-old child might make a bad decision to leave the school bus, under an erroneous belief that his parents were outside, and could be harmed on the street. A jury could further conclude that precautions beyond those that the District provided were warranted. A reasonable juror could conclude that the bus driver should have done more than grab the child, question him, accept his answer, and thereby allow him to leave the bus and therefore also the school premises, without further ‘direct and immediate” supervision. For example, should the bus driver have summoned one of the staff monitors present on-site, to contact the parents or the office? Should the monitors require that the father be present before the child was released? These are jury questions.”
The case is Eric M. v. Cajon Valley Unified School District, 09 S.O.S.2946.
Copyright 2009, Metropolitan News Company