Torts/Personal Injury
Oct. 3, 2023
Assessing a school's liability when the school bus doesn't show up
School liability for student injuries is a complicated issue. Schools owe a special relationship to their students. As the Brinsmead decision shows, this special relationship and its related duties can attach even before the child steps foot on the bus.
Michael E. Rubinstein
Law Office of Michael E. Rubinstein
433 N Camden Drive Suite 600
Beverly Hills , CA 90210
Phone: (213) 293-6075
Fax: (323) 400-4585
Email: Michael@rabbilawyer.com
Loyola Law School; Los Angeles CA
Michael is a Los Angeles-based personal injury and accident attorney.
It's every parent's nightmare. Imagine the following scenario: A parent drops off her child at the bus stop, assuming the bus will show up like it does every day. It doesn't. So the child hitches a ride to school with a friend. On the way to school, tragedy strikes. Is the school liable? Yes, according to the recent Court of Appeal opinion in Brinsmead v. Elk Grove Unified School District. Even though the injury did not occur while the student was on the school bus, the Education Code imposes liability on the school as soon as it "undertakes" to provide transportation to and from school.
Education Code § 44808
Education Code Section 44808 discusses school liability for injuries occurring off campus. It reads:
"Notwithstanding any other provision of this code, no school district, city or county board of education, county superintendent of schools, or any officer or employee of such district or board shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools 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, has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.
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."
The Legislative history to Section 44808 shows that the Legislature was primarily concerned with limiting a school's liability for injuries to students either before or after school hours while children were going to or coming home from school. (Hoyem v. Manhattan Beach City Sch. Dist., (1978) 22 Cal.3d 508.) Generally, a school district has no responsibility to ensure that children travel safely to and from school unless the school provides the transportation. Courts have also applied Section 44808 to shield schools from liability for student injuries outside school property absent a specific undertaking by the school district or direct supervision by a district employee. Leroy v. Yarboi (2021) 71 Cal.App.5th 737.
Brinsmead v. Elk Grove Unified School District
The Court in Brinsmead analyzed section 44808's choice of the phrase "undertaken to provide transportation." What does it mean?
G. was a 16-year-old girl enrolled to take the school bus for the 2019-2020 academic school year. On a morning in January 2020, she waited over 40 minutes for the school bus to show up. It never did. She then got a ride to school with her friend. Sadly, they were hit by another driver head-on, and G. was killed in the collision. Her parents sued the school district, arguing that the school was responsible for G.'s death because the school had undertaken to provide her with transportation to and from the school. The bus's failure to arrive led to the tragic consequences of G. being killed in a collision.
The trial court, agreeing with the school district, held that the school district had not yet begun to undertake the transportation of G. to school on the date in question because she had not gotten on the bus. The Court of Appeals reversed. It held that "undertakes to provide transportation" connotes both the physical transportation of the student from point A to point B, as well the promise or engagement to provide that transportation. Liability under section 44808 will therefore attach when the district accepts the responsibility of providing transportation to and from school. It is the promise to provide the ride to school that is the premise for the school district's liability.
Conclusion
School liability for student injuries is a complicated issue. Schools owe a special relationship to their students. As the Brinsmead decision shows, this special relationship and its related duties can attach even before the child steps foot on the bus. As long as the school accepts the responsibility to transport the student to and from school, it is charged with making sure that happens safely. Parents and school officials should be aware that under Education Code Section 44808, a school's promise to provide the student a ride to and from school can trigger the special relationship rules and associated liability.
Michael E. Rubinstein is a personal injury lawyer in Los Angeles. He can be reached through his website at www.RabbiLawyer.com.
Submit your own column for publication to Diana Bosetti
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390
Send a letter to the editor:
Email: letters@dailyjournal.com