Update: on April 23, 2015, this case was dismissed as improvidently accepted.
Read the analysis of the oral argument here.
On March 25, 2015 the Supreme Court of Ohio will hear oral argument in the case of Amber Sallee (a Minor) v. Stephanie Watts, et al, 2014-0727. The threshold issue in the case is whether starting a school bus before a student reaches the residence side of the road constitutes the operation of a motor vehicle. If it is, then it must be determined if a bus driver is negligent for an injury caused when a child attempts to cross the street later. The case will be argued at Mansfield High School in Richland County as part of the court’s off-site program.
Then-six-year-old Amber Sallee, a first grader in the Three Rivers Local School District (“Three Rivers”) was dropped off at her designated stop by bus driver Lisa Krimmer. Instead of crossing the street to her home, Amber ran down the block with another classmate. Krimmer claims that she attempted to get Amber’s attention by honking her horn several times, but Amber continued to run down the street. After these unsuccessful attempts, Krimmer continued with her route, dropping off the remaining students.
When Krimmer was a few blocks away, Amber attempted to cross the street, but was struck by driver Stephanie Watts, and suffered extensive injuries. Amber subsequently filed suit for negligence against Watts, Krimmer, and Three Rivers. Krimmer was personally dismissed from the case on an unopposed motion. The trial court granted Three Rivers’ motion for summary judgment, finding that Krimmer’s conduct did not involve the negligent operation of a motor vehicle. Watts’ motion for summary judgment was also granted, but that issue is not involved in this appeal.
In a unanimous decision, the First District Court of Appeals reversed the trial court’s decision granting summary judgment to Three Rivers. However, the court admonished the General Assembly for its poor drafting in creating the applicable school immunity exception statute that effectively creates no recourse for a bus driver in this exact scenario. The appeals court also held that the exception to immunity involved here would not apply if Krimmer’s conduct was not the cause of Amber’s injuries, which has yet to be determined.
R.C. 2744.02 (B) (1) (Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority.)
R.C. 4511.75 (E) (No school bus driver shall start the driver’s bus until after any child has reached a place of safety on the child’s residence side of the road.)
Culwell v. Brust 91 Ohio App. 309 (4th Dist. 1949) (A bus driver who discharges a group of child passengers and starts the bus before the children have crossed to a place of safety is negligent. In this circumstance, the bus driver is the proximate cause of harm suffered by a child who is struck by oncoming traffic while attempting to cross the street)
Doe v. Marlington Local School Dist. Bd. of Edn. 122 Ohio St.3d (2009) (The R.C. 2744.02(B)(1) exception to political subdivision immunity for injuries sustained as a result of the negligent operation of a motor vehicle does not apply to claims for negligent supervision of the conduct of the children on a school bus.)
Glover v. Dayton Public Schools (CA 17601 2nd Dist. 1999) (A bus driver is not liable for a child’s injury sustained while crossing the street after being discharged from a bus when the bus has continued its route away from the zone in which the child was harmed.)
Three Rivers’ Argument
First, Three Rivers argues that it is immune from any liability in this case, because none of the exceptions to sovereign immunity apply in this situation. Specifically R.C. 2744.02(B)(1) does not apply because Krimmer was not operating the vehicle when the injuries occurred. Furthermore, Krimmer was not just a few yards down the street, she was blocks away by the time the incident occurred. The immunity exception should not be read to apply any time a bus is in use; rather it should focus on whether the bus was present when the injury occurred.
Second, Three Rivers asserts that the appellate court was incorrect in its interpretation of R.C. 4511.75(E). This literal application forces a bus driver either to abandon the bus to ensure that a rogue child gets home or punish a driver who does all that is possible from within the bus to no avail. Under the appellate court’s approach, the only way a bus driver would be able to escape liability is to wait as long as it takes for students to return to their residences. This construction renders the statute, and its ultimate result, absurd and illogical.
Third, there is a distinction between supervision and operation. Krimmer may have had a supervisory duty to watch Amber cross the street, but that does not equate with the actual operational duties of driving a school bus. The appellate court improperly thrust all of Krimmer’s actions, including her supervisory duties, under an operational umbrella. However, watching a child get to a residence is supervisory and therefore R.C. 2744.02(B)(1) does not apply.
In its reply brief, Three Rivers insists that the nexus between the harm occurring and the location of the bus must be a pivotal factor in determining negligent operation of a vehicle. It goes on to elaborate further on the specific language of 4511.75(E) and its focus on the supervisory conduct of a bus driver as opposed to the actions of a driver while in operation of the vehicle.
First, Amber asserts that Three Rivers’ immunity is abrogated under R.C. 2744.02(B)(1) due to Krimmer’s negligent operation of the bus. Krimmer violated R.C. 4511.75(E), when she drove away before Amber had safely reached the residence side of the road. Krimmer must be considered to be operating a vehicle if she violated this traffic statute. Whether or not Krimmer was in the immediate vicinity where the accident occurred is immaterial, as it was the act of driving away that led to Amber’s harm.
Second, the act of driving the bus away before a child crosses the street is negligence per se. The “bus stop” statutes were enacted for a specific class of people, students, and were designed to protect against the type of accident the actor’s conduct causes. As a six-year-old first grader, Amber falls directly within the class of people the statute was meant to protect. The harm Amber suffered is undoubtedly the exact harm the legislature feared when it promulgated the “bus stop” statutes.
Third, Amber attacks the proposition that this case focuses on supervision instead of vehicle operation. Starting, shifting, and moving a vehicle are categorically within the scope of operating a vehicle. Krimmer’s duty was not to merely watch Amber cross the street, it was to not start and move the bus she was entrusted to operate. Krimmer breached her duty when she turned the key and proceeded to drive down the street without making sure Amber was on the correct side of the road.
Fourth, the school’s policy in permitting young children to be dropped off without an adult present goes against public policy. Schools stand “in loco parentis” to a child; this is further amplified when the child is only six-years-old. Children under seven in Ohio are presumed incapable of negligence, and thus cannot appreciate certain risks like those involved here. Dropping a first grader off without a suitable adult present puts the child at a substantial risk of harm.
Three Rivers Proposed Proposition of Law No. 1
Claims against School Districts involving students who exit from buses and are subsequently injured when the bus is no longer present, do not involve the operation of a motor vehicle.
Three Rivers Proposed Proposition of Law No. 2
A school bus driver does not violate R.C. 4511.75(E) when he/she starts a bus after a child runs off without permission and without first reaching a place of safety on the child’s residence side of the road.
Three Rivers Proposed Proposition of Law No. 3
A violation of R.C. 4511.75 (E) involves negligent supervision of a child and not the negligent operation of a motor vehicle
Amber’s Proposed Counter Proposition of Law No. 1
Starting a bus before a child reaches the residence side of the road, in violation of R.C. 4511.75(E), constitutes the “negligent operation of a motor vehicle.
Amber’s Proposed Counter Proposition of Law No. 2
A school district violates R.C. 4511.75(E) and commits negligence per se when the bus driver starts a bus before a child reaches the residence side of the road.
Amber’s Proposed Counter Proposition of Law No. 3
A violation of R.C. 4511.75(E) does not involve negligent supervision.
Amber’s Proposed Counter Proposition of Law No. 4
In Ohio, a valid public policy argument exists that a school district’s policy of not requiring parents or a suitable designated adult to be present at the bus stop for children of tender years was reckless conduct and against public policy.
Amicus Brief in Support of Three Rivers
The Ohio Association of Civil Trial Attorneys (OACTA) filed a brief in support of Three Rivers. In its own proposed proposition of law, OACTA contends that supervising students after they get off a school bus that has left the scene does not constitute “operation of” a motor vehicle that would divest a school district of immunity when a student is later injured.
Amicus Brief in Support of Amber Sallee
The Ohio Association for Justice (OAJ) filed a brief in support of Amber Sallee. In its brief, OAJ insists that Krimmer’s conduct clearly and objectively involved the operation of a motor vehicle. If the court does not acknowledge that Krimmer violated 4511.75(E), it is essentially ignoring the statute and its intended purpose.
Student Contributor: Austin LiPuma