What’s On Their Minds: Liability of a School Bus Driver for Child Injured While Crossing the Street After the Bus Has Driven Away. Amber Sallee (A Minor) v. Stephanie Watts, et al.

By Marianna Bettman on March 30, 2015

Update: on April 23, 2015, this case was dismissed as improvidently accepted

“Assuring that the child crosses the roadway to the residence side is, in your view, the operation of a motor vehicle?” Justice O’Donnell to Amber Sallee’s counsel.

On March 25, 2015, the Supreme Court of Ohio heard argument in the case of Amber Sallee (a Minor) v. Stephanie Watts, et al, 2014-0727. The issue in the case is whether starting a school bus before a student reaches the residence side of the road, in violation of R.C. 4511.75(E), constitutes the negligent operation of a motor vehicle, and thus an exception to political subdivision immunity for which the school district is liable. The case was argued at Mansfield High School in Richland County as part of the court’s off-site program.

Case Background

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 serious 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, and thus Three Rivers was entitled to immunity. 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, finding that the exception to immunity codified in R.C. 2744.02 (B) (1) for negligent operation of a motor vehicle applied. The appeals court also held that since all elements of negligence must be met, this exception to immunity could be overcome if Krimmer’s conduct was not the cause of Amber’s injuries, which has yet to be determined.

Key Statutes and Precedent

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. 2744.02(B)(5) (provides an exception to immunity when civil liability is imposed on a political subdivision elsewhere in the Ohio Revised Code, but also provides civil liability shall not be construed to exist under another section of the Code merely because that section imposes a responsibility or mandatory duty upon a political subdivision, or provides for a criminal penalty.)

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 (4^th 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 2^nd 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.)

Arguing Counsel

David P. Bolek, Staff Counsel, Cincinnati Insurance Company, for Defendant-Appellant Three Rivers School District.

Dennis C. Mahoney, O’Connor Acciani & Levy Co. L.P.A. Cincinnati, for Plaintiff-Appellee Amber Sallee

At Oral Argument

Three Rivers’ Argument

This case involves negligent supervision of a child, not the negligent operation of a bus, and thus there is no exception to political subdivision immunity applicable here. This case turns on the interpretation of R.C. 4711.75(E). To avoid absurd and illogical results, that statute must be interpreted as a duty to supervise statute, not an operation of a bus statute. That statute instructs drivers to remain parked until students who get off make it to a place of safety on his or her residence side of the road. The language “to the child’s residence side of the road” was added to instruct bus drivers as to the meaning of a place of safety. If any duty was breached, it was a duty of supervision, not one of operation of the bus.

The purpose of governmental immunity is to ensure the fiscal integrity of political subdivisions, like school boards, and only in very limited situations should that immunity be abrogated. This is not such a situation. The court of appeals was incorrect, both in finding an exception to immunity, and when it held proximate cause still needs to be decided. This is a duty case pure and simple; no duty was breached that triggers an exception to immunity.

R.C. 4711.75 (E) must be interpreted with a temporal element. An injury does not occur from the operation of a bus when the bus is not present when the accident happens. This statute must be interpreted in a manner that focuses on the purpose and the spirit, rather than its literal wording.

Sallee’s Argument

R.C. 4511.75(E) is a motor vehicle operational statute, not a supervision statute. This statute has been in effect for many years, to protect children, especially those of tender years. In this case the driver should have put the bus in park, gotten off, grabbed the child, and told her to cross the street. Ensuring that a child gets off the bus and safely reaches the residence side of the road is an operation of a bus duty.

This case is fact specific, and there are still facts in dispute in the case. But the Supreme Court must uphold the statute as written—there is no immunity for what happened here. This case is here so that the court can say once and for all that R.C. 4511.75(E) is an operation-of-a-motor-vehicle statute. And violation of that statute is negligence per se. What happened in this case is exactly what the statute was intended to protect against—a young child getting hit by a car while crossing the street.

What Was On Their Minds

Duties Under R.C. 4511.75(E): Supervision or Operation of the Bus

If the driver had let the child off on the right hand side of the street, and the child’s house was on the left hand side, and the child had been injured crossing the street, wouldn’t the school be liable, asked Justice Pfeifer? (No, said counsel for Three Rivers. The statute is just a supervision statute)

If the bus driver pulls away knowing that the child has to cross the road unescorted, has the bus driver met her duty to place the child in a place of safety, asked Chief Justice O’Connor? Doesn’t she have some duty to see that the child gets to her house? How does a bus driver ensure supervision if a child is disembarking from the bus? Doesn’t the operator of the bus have to activate the stop signs to stop traffic, and flash the lights–isn’t that the operation of the bus? Did the driver’s responsibility end there? What recourse does a bus driver have if the child isn’t going to her residence side of the road? Is violation of this statute negligence per se? Isn’t the statute pretty clear-you are a bus driver and you can’t start the bus until the child has reached a place of safety on the residence side of the road?

Is this statute more in the nature of supervision, asked Justice Lanzinger? Didn’t the driver also honk to get the child’s attention? “Operation” of the bus is starting the bus before this event occurs?

How should this statute be interpreted, asked Justice O’Donnell? To apply, the injury must occur when the bus is present?

Does this statute impose liability regardless of the child’s age, asked Justice French?

The Bus Driver’s Dilemma

Did this bus driver drive away before this child reached her residence side of the road, asked Justice O’Neill? This accident happened after the driver was making her third stop?

Was it reasonable for the bus driver who saw this little girl go onto the porch of a friend’s house to determine she had reached a place of safety, asked Chief Justice O’Connor?

What does the bus driver do when a child refuses to cross the street in front of the bus, asked Justice O’Donnell? Does the driver have to wait ten or fifteen minutes until the child decides to cross? Must the driver escort the child across the street? Would there be any liability if one of the other students on the bus became injured while the driver was escorting the first one across the street? How long does the driver have to wait with a bus full of kids until this kid is delivered to the right side of the road?

Immunity and Exceptions

Is 2744.02 (B)(5) implicated here, as suggested by amicus for Three Rivers, asked Justice French? Is this an example of a mandatory duty that does not impose liability? Would that be an alternative ground on which Three Rivers could prevail? She asked both counsel about this—the lawyer for Amber Sallee changed the subject.

Is failure to supervise an exception to immunity, asked Chief Justice O’Connor?

Unless the bus driver operates the vehicle would there be no liability because the exception to immunity comes from the operation of the vehicle, asked Justice O’Donnell?

Why the Court Took The Case

Isn’t this just a very fact driven case, asked Justice Pfeifer? Is there much law for the court to decide? Isn’t this just a case of error correction?

What does the court need to decide here, asked Justice O’Donnell, commenting that each of the cases seem very fact specific. What is the legal issue that needs to be addressed?

Posture of the Case

Couldn’t the school board still win if the driver’s conduct did not cause the injury, asked Justice Lanzinger? Isn’t this just phase one?

What about impossibility of performance here, asked Justice O’Neill? Do we have to close the road until the kid comes out of the friend’s house and crosses the street?

Why shouldn’t this case just be dismissed as improvidently allowed, asked Justice O’Donnell?

It is not a slam dunk to convince a jury under the facts of this case that there should be an award, Justice Pfeifer commented to plaintiff’s counsel, who agreed.

How It Looks From The Bleachers

To Professor Bettman

Like a win for Amber Sallee on the immunity question, but ultimately I think Three Rivers will win on causation or on the defense of impossibility of performance. Had Amber been a bit older, comparative negligence could have been a defense, but not in Ohio for a six year old.

I do not think a majority of the justices are going to buy the school board’s position that R.C. 4511.75 (E) is a supervision statute, but rather will interpret that statute as involving negligent operation of a bus, and thus provides an exception to immunity here. Arguing to this crowd that a statute—especially a safety statute -should be interpreted according to its spirit, not its letter, isn’t going to fly. It was ironic to hear such an argument from insurance counsel; usually that comes from the plaintiffs’ side. The temporal element Three Rivers’ counsel was arguing for can be raised as part of the proximate cause defense when the case goes back.

Still, I think there was general agreement that the statute, as written, can lead to absurd results, and that all the justices who spoke appreciated the bus driver’s dilemma here. After all, when a little kid runs off, how much is the driver to do, especially with a bus full of other kids?

I think Justice French may dissent. She seemed very taken with the R.C. 2744.02(B)(5) argument of amicus OACTA—that only when another provision of the Revised Code expressly imposes civil liability on a political subdivision would an exception apply and R.C. 4511.75 (E) does not expressly impose such liability.

Justices Pfeifer, O’Donnell, and O’Neill, all of whom voted against granting jurisdiction in this case, clearly see nothing new to write here. One or more of them may vote to dismiss the case as improvidently allowed. Otherwise, they’ll likely vote to affirm the First District. As I have noted many times, Justice Pfeifer categorically dislikes sovereign immunity, and is thus not likely to find immunity here. Regardless, I think he thinks the Board will ultimately win on the merits.

To Student Contributor Austin LiPuma

Counsel for Three Rivers immediately discussed the “absurd and illogical” result from the First District’s interpretation of 4511.75(E). The argument then turned to the distinction between supervision and operation. Perhaps because of the off-site venue for the argument, the bench was exceptionally hot. The bus driver’s conduct was often front and center; did the bus driver blatantly drive off before a child safely crossed the street or did the bus driver do everything possible to ensure the child’s safety before it became impracticable to stay put? The Justices appeared to be unpersuaded by Three District’s suggestion that liability only attaches when the bus driver is within a close proximity to the accident.

Counsel on behalf of Sallee immediately argued that 4511.75(E) unequivocally deals with operation of a motor vehicle. The larger hurdle, which the First District pointed out, is the unreasonable expectations of bus drivers 4511.75(E) causes. As Justice O’Neill suggested, what if a child decides to run down the street to a friend’s house and then never leaves? Should the street be shut down until the child leaves the house? The legislature clearly intended a bus driver to make sure a child (especially of tender years) safely crosses the street. This is exactly why the statute falls within the scope of operation and immunity should be abrogated.

Both parties had immense difficulty attempting to submit clear rules of law for the court to adopt because the case turns on an intensive assessment of the facts. The real issue will likely be the finding of proximate cause on remand as both sides acknowledge, this case is not over. One thing the justices will likely agree with is the poorly drafted nature of 4511.75(E). However, I believe that based on the general deference the court gives the legislature, the First District’s ruling will be upheld.