[Return to Home Page ] [Title Page ] [Preface to 1996 Edition ] [About the Author ] [Foreword to 1990 Edition ] [Table of Contents ] [Main Body ] [Appendix A. Compartmentalization ] [Appendix B. TRB Special Report 222, May 1989 ] [Appendix C. Endorsements ] [Appendix D. Testimonials ] [Appendix E. Studies and Recommendations ] [Appendix G. Guidelines to Seatbelt Implementation] [INDEX ] [Responses To This Site ] [Related Sites ]

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APPENDIX F. LEGALITIES

This appendix explores some legal aspects related to school-bus seat belts.

HUERTA, BECKMAN, RODRIGUES & MUNOS, ATTORNEYS

p. 133: "In answer to your question, Carpenter Body Works, the manufacturer of the school bus coach (as opposed to the chassis) paid $175,000.00. Commercial Body Corporation, the distributor of the bus in question, paid $25,000. CP&L, the power company who placed the pole too close to the roadway in question paid $337,500.00. "Initially the school district paid $75,000.00, and that was paid by an agreement whereby if we received money from the other Defendants, the school district would get their money back. At the time that part of the case was disposed of, the law in Texas did not allow non-pecuniary damages for the death of a child. The value of a child's life when only pecuniary damages are recoverable is very small. In any event, Texas tort law protects governmental units, including school districts, for any amount of damage exceeding $100,000.00. (It has since been changed to $200,000.00.) [What is Arizona law, in these regards? Might parents collect on bills sent to school boards, for the added cost of insurance on children, deemed necessary because of school boards' inaction in eliminating pre-1977 buses, or inaction in installation of seatbelts?--S.L.]

"Of all the red herrings resorted to, to avoid putting seat belts in school buses, the liability aspect has got to be the most fraudulent. I would recommend your contacting a local plaintiff's attorney to give talks to the school boards to explain how a school board's failure to install seat belts may give rise to substantial liability, and actually installing seat belts and adopting a program to insure their use would go a long way toward avoiding not only injuries but liability. A school district would not have to guarantee every seat belt is used, only adopt a reasonable program to encourage their use" (From a 25 July 1985 letter by gerald H. Beckman to Laura G. Schwartz, President, NCSSB).

SHERMAN AND HOWARD, ATTORNEYS

p. 134: "We have been asked by our client, Coloradans for Seat Belts on School Buses, to address certain liability issues relating to the installation of seat belts in the new school buses to be purchased this year. We understand that earlier administrators' recommendations to include seat belts have been questioned because of the Board's concern that the fact belts were installed could expand the District's potential liability if students failed to wear the belts properly.

"Two Colorado Court of Appeals cases have triggered this concern. One involved a child injured while riding a bicycle home from school contrary to a school policy that permitted only older students to bicycle to and from school.(1) The second involved a kindergarten student injured as she crossed a sometimes guarded intersection that was unguarded at the time of injury.(2) In each of these cases the trial judge found so little merit in the claims against the school district involved that he did not allow the case to be determined by the jury. The Court of Appeals decision in each was not a decision to impose liability upon the school district; rather, that Court merely decided that the trial court should have permitted the question of liability to be determined by the jury.

"It is certainly possible that juries would find liability against school districts under the facts such as those presented in these two cases. Both involved the application of school safety policies: a policy restricting the ages of students allowed to bicycle to school and a policy concerning guarding of crosswalks. Both also involved students among the youngest in the school system: a kindergartener [sic.] and a first grader. It is important to realize, however, that lawsuits likely would have been brought and liability possibly imposed as a result of these accidents even in the absence of these school policies on the theory that safety policies should have been in place.

"If a child is killed or injured in a school bus accident, an ambitious personal injury lawyer might attempt to find some way of holding the school board liable. He might assert that when a school district transports pupils it has a duty to do so with reasonable safety.(3) Despite the unworkability of doing so, the District might be held to a standard of care commensurate with the age and experience of each of the pupils riding a bus.(4) The plaintiff's attorney might try to find fault with the way a bus was driven, designed and maintained, with the quality of supervision on the bus and with the way in which students were instructed in the use of safety equipment. If the bus is lacking in safety equipment, that fact could well be raised as an issue in the suit (as it has been raised many times before).

"We have conducted a computerized search of reported cases from around the country and have found none in which a school district was held liable because a student failed to buckle a seat belt which was provided.(5) Further, none of the articles we have consulted describes such a case.(6) Several cases have held airlines negligent when pilots failed to warn passengers to buckle up because of turbulent weather ahead.(7) A California appellate court has held that a taxicab company could be held negligent when seat belts installed in its cab slipped behind the seat so that the passenger could not use them.(8) However, common cariers such as taxicab companies and bus lines may also be subject to liability if they fail to install seat belts and the jury decides that such failure amounts to negligence.(9) In other words, where scrutiny is very strict, failure to provide seat belts leads to a question of negligence just as failure to make people buckle up may.

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"Although a school district may not be held to the high standards to which a common carrier is held, (10) if the court allows the jury to decide the amount of care that should be taken, a case could just as well be based on the question of whether seat belts should have been installed when they were not as on failure to insist on proper use if they were installed.(11) The two Colorado cases that have caused the Board concern suggest that courts are willing to allow increasingly close jury scrutiny of school district actions, both in terms of that which was done and that which was left undone. In a case of injury that reaches the jury, we believe it would be persuasive to argue that the school installed safety equipment, taught students how to use such equipment, and urged them to do so. Further, it would not be in the District's best interest for the jury to perceive that safety equipment was omitted because the school district felt that policy would lessen liability or costs.(12)

"It also appears likely that the District would decrease its liability exposure [why not its insurance costs, as well?--S.L.] if it equipped new buses with seat belts. First, the children wearing seat belts may be less likely to be injured, thereby reducing the total number of plaintiffs. Second, the trend across the country appears to require buses to be equipped with seat belts. If this becomes the standard practice, the argument for liability on a non-equipped bus would be primarily that the District had failed to meet this standard. Since any such standard would surely first arise with respect to new buses, any minimal protection the district might achieve for old buses by leaving belts out of new ones would almost certainly be outweighed by increased exposure were a new, unequipped bus to be involved in a crash. It would, we feel, be much better to argue to a jury that safety devices were being added in a rational and orderly way than to be perceived, whether correctly or not, as omitting them in an effort to avoid liability on a somewhat dubious legal argument.

"In sum, we find it difficult to imagine the Board adopting a policy not to use safety goggles in laboratory or shop classes merely because a small number of students occasionally do not use or [do] misuse the equipment. Similarly it seems unlikely that safety equipment such as helmets or face masks for students involved in sports would be eliminated for fear that occasional misuse or nonuse of these items could somehow expand school district liability. Clearly the potential liability for failure to provide the safety equipment has always been perceived to outweigh any concerns over potential school district exposure for isolated abuses of the policies requiring the safety equipment. We are not aware of any legal reason to treat seat belts on school buses differently.

[Footnotes:]

1 Justus v. Jefferson County School Dist. R-1, 683 P.2d 805, 806 (Colo. App. 1984, cert. granted (Colo.) June 25, 1984

2 Gilbert v City of Arvada, 694 P.2d 847, 848 (Colo. App. 1984), cert. granted (Colo.) Jan. 14, 1985.

3 There appear to be no Colorado cases saying this in so many words. However, a California court has stated this essentially self-evident truth as follows:

A school district is under no legal duty to supply transportation to its pupils. Once it does so, no one would deny a concomitant obligation to provide a reasonably safe system. Statutory, administrative and judicial expressions demonstrate concern for the safe operation of vehicles engaged in the important business of transporting school children. 31 Cal. Reptr. 847, 853 (Cal. Dist. Ct. App. 1963) (citations omitted). Statutory and administrative expressions of concern for pupil safety in transit appear in C.R.S. [Par.] 22-51-107, 108 (1985 Supp.) (requiring compliance with safety standards to be set by the Commissioner of Education before a district may participate in the Public School transportation Fund) and 1 C.C.R. [Par.] 301-25, -26 (setting standards for the construction and operation of school buses). See also Pratt v. Robinson, 336 N.Y.S. 2d 612, 613 (Sup. Ct. 1972) (duty exists, but does not extend beyond point where students leave the bus).

4 There is a conflict as to the degree of care required; some authorities require the degree of care required of a common carrier, others require only ordinary care, but taking into account the youth of the students. See generally Annotation, Tort Liability of Public Schools and Institutions of Higher Learning for Accidents Associated With the Transportation of Students, 34 A.L.R. 3d 1210, 1221-22 (1970 & 1985 Supp.). See also 78 C.J.S. Schools and School Districts [Par.] 1338 at 1337-39 (discussing the standard of care required of the driver).

5 The only case that is arguably close is one in which the school district failed to use a wheelchair tie-down mechanism provided on the bus. Gen. Accident, Fire & Life Assurance Corp. v. Fountain, 112 S.E. 2d 630 (Ga. Ct. App. 1959), rev'd 114 S.E. 2d 120 (Ga. 1960). However, this question was not the central issue in the case. In any event, wheelchairs are plainly a special case. Colorado requires tie-down mechanisms in vehicles intended to carry disabled students. 1 C.C.R. [Par.] 301-25(96).

6 Annotation, Tort Liability, supra note 4 at 1230-36. See also Annotation Personal Liability of Public School Executive or Administrative Officer in Negligence Action for Personal Injury or Death of Student. 35 A.L.R. 4th 272 (1985 & Supp.).

7 Annotation, Liability of Owner or Operator of Motor Vehicle or Aircraft for Injury or Death Allegedly Resulting From Failure to Furnish or Require Use of Seat Belt. 49 A.L.R. 3d 295. 302-04 (1973 & 1985 Supp.).

8 McNeil v. Yellow Cab Co., 147 Cal. Rptr. 733 (Cal. Ct. App. 1978). See also Twohig v. Briner, 214 Cal. Rptr. 729 (Cal. ct. App. 1985) (jury issue of negligence when private vehicle owner removed seat belts from her car).

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9 Greyhound Lines, Inc. v. Superior Court, 83 Cal. Rptr. 343 (Cal. Ct. App. 1970) (passengers in a bus crash); Tielmeyer v. McIntosh, 176 N.W. 2d 819 (Iowa 1970) (failure to install seat belts in a taxi cab is not negligence as a matter of law, but presents an issue for the finder-of- fact;here, the trial judge's finding that the defendant was not negligent as a matter of fact was upheld); Benson v. Penn Central Transp. Co., 342 A.2d 393 (Pa. 1975) (it was a question of fact for the jury whether a taxi cab company retained by a railroad to transport railroad employees was negligent in not installing seat belts).

10 Supra note 4.

11 For example, a California appellate court found there to be a question of fact for the jury as to whether an employer--who is not held to the same high standards as a common carrier--should have recognized the inadequacy of the then prevalent practice of not providing seat belts and should have supplied them for its employees. Mortenson v. S. Pac. Co., 53 Cal. Rptr. 851 (Cal. Dist. Ct. SApp. 1966) (case decided under Federal Employers' Liability Act, 45 U.S.C.A. [Par.] 51).

Colorado school districts are already required to instruct students in safe behavior on buses and to ensure proper deportment. 1 C.C.R. [Par.] 301-26 (4204-r-216.00) (emergency evacuation drills); (4204-R-224.00) (no standing while bus is in motion). Instruction in proper seat belt usage should likewise be provided and steps taken to remind students to use them. However, the extent of monitoring required and the degree of compliance that must be achieved should not be greater than presently required for all safety measures.

Whether instruction and supervision have been adequate depends on the facts given in the case. Consider, for example, the following cases in which one student hit another in the eye with a thrown object and inadequate supervision was alleged. In Carroll v. Fitzsimmons, 384 P.2d 81 (Colo. 1963) a school district, teacher and principal were not liable when one child hit another in the eye with a rock on the playground. In approving a dismissal by the trial court, the Colorado Supreme Court quoted favorably from a New York decision: 'There is no requirement that the teacher have under constant and unremitting scrutiny the precise spots wherein every phase of play activity is being pursued; nor is there compulsion that the general supervision be continuous and direct.' Id. at 82, quoting Nestor v. City of New York, 211 N.Y.S. 2d 975, 977 (Sup. Ct. Trial Term 1961). In another New York case the school board was found liable when a student was struck in the eye by a thrown object during a raucous bus ride because the driver, knowing of the disturbances, had done nothing to intervene. Blair v. Bd. of Educ., 448 N.Y.S. 2d 566 (Sup. Ct. App. Div. 1982). By contrast, in Butler v. District of Columbia, 417 D.2d 1150 (D.C. Cir. 1969), a school system was found not to be liable when a student was hit in the eye by a piece of type thrown by a fellow student even though the teacher was absent from the room. Id. at 1151. The court found that the school acted reasonably in assigning the teacher to maintain order elsewhere in the building and that the teacher had given adequate instruction in proper conduct. Id. at 1152-53. See generally Annotation, Supra note 4.

12 In this regard it is worth noting that it is not unlikely that the substance of the debate now taking place before the School Board may be admitted into evidence at a trial in which an injured plaintiff seeks redress for damages allegedly caused by the failure of the Board to install seat belts on its new school buses.

(From a 5-page, 11 February 1986 letter from Sherman & Howard attorney Rodney D. Knutson to the Denver Board of Education; this letter is displayed on pp. 134 - 139 of the NCSSB Manual.)

OREGON PARENTS HOLD BOARD MEMBERS LIABLE

p. 140: "Mr. and Mrs. [Gary and Sue] Brian have consulted with me regarding the subject of installing seat belts in the District buses.

"It is my understanding they have been talking with the Board about either retrofitting the existing buses with seat belts and/or as buses need replacement, purchasing buses with seat belts already installed. I further understand this discussion has been off and on since February of 1985.

"Mr. and Mrs. Brian have stated that the Board has either been unable or unwilling to make a decision one way or the other whether to do it or not do it.

"My limited investigation to date shows that installation of seat belts in school buses has been endorsed by the Oregon Medical Association, the American Medical Association, the American Academy of Pediatrics, the American Academy of Orthopedic Surgeons, the American College of Preventive Medicine, and the Center for Adult Safety as well as having recently been endorsed by the Oregon PTA. Many school districts throughout the United States have adopted the seat belt measure and many more are following and making plans for such installation.

"Since Mr. and Mrs. Brian have been unable to get what they consider to be ab adequate answer from the Board on this subject, they have made a decision on their own and for themselves which they have asked that I convey to the Board.

"In the event that either or both of the Brian children are injured on the school bus as a result of the lack of installation of seat belts to help protect them, they will hold the District as well as the Board members individually liable for any injuries so received. This letter is to act as official notice to that effect."

School-board members should be aware of a growing trend for parents to hold such Board members individually and severally responsible, should injuries occur to their children due to the lack of seat belts on school buses. It should not be necessary for each parent to serve such notice to a school board, in order to get the Board's attention, though that can be done, if necessary.

p. 21: "Parents today will be much more likely to sue because of the absence of belts during an accident in which their child is injured than to sue because of the fact that a belt on a bus involved in an accident was not used by a child" (From School Bus Fleet / June--July 1984, "A Misleading Safety Record," Carol Fast [Founder of NCSSB]).

[Return to Home Page ] [Title Page ] [Preface to 1996 Edition ] [About the Author ] [Foreword to 1990 Edition ] [Table of Contents ] [Main Body ] [Appendix A. Compartmentalization ] [Appendix B. TRB Special Report 222, May 1989 ] [Appendix C. Endorsements ] [Appendix D. Testimonials ] [Appendix E. Studies and Recommendations ] [Appendix G. Guidelines to Seatbelt Implementation] [INDEX ] [Responses To This Site ] [Related Sites ]

©Stephen A. Langford, Oro Valley, Arizona, 29 September 1996.  
ALL RIGHTS RESERVED.  
This document may be freely transmitted in its entirety, 
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