by Jeffrey S. Baird, Esq.
The purpose of the federal Individuals with Disabilities Education Act (“IDEA”) is, in part, to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services.
A “child with a disability” is defined, in part, as a child (i) with orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who needs special education and related services. “Related services” includes transportation. “Transportation” is defined by the IDEA regulations as “travel to and from school and between schools, travel in and around school buildings.
Federal regulations provide the following minimum requirements for transporting a child in a wheelchair on a school bus: (i) the wheelchair must have not less than four wheelchair securement anchorages using appropriate securement devices; (ii) the wheelchair must be secured in a forward-facing position; (iii) the occupant of the wheelchair must have not less than one anchorage for the upper end of the upper torso and not less than two floor anchorages for pelvic and upper torso restraint.
Theories of Liability
When an HME supplier sells a motorized wheelchair to a child, and if the child is capable of attending school, then the child and his/her wheelchair will likely be transported by a school bus. As stated above, federal law mandates that in order for the child and wheelchair to be transported, there must be securement anchorages. The question faced by the HME supplier pertains to its duty to notify the child’s parents about the need for transportation brackets to be affixed to the wheelchair. This issue arises because while the wheelchair itself is normally covered by a third party payor, the brackets themselves are often not covered by a third party payor. Therefore, in order for the HME supplier to include brackets, the parents will normally need to pay out-of-pocket. Although brackets are not very expensive, parents may nevertheless decide not to expend the money for the brackets. If the parents do not purchase the brackets from the HME supplier, and if the child is injured during the transportation, then is the supplier liable for the injury? If the HME supplier takes reasonable steps, as set out hereinafter, then its potential liability will be minimized.
When a disabled child is injured while being transported, and if the child makes a claim for damages, then it is likely that one of the theories of liability will be negligence. Generally, in order to prove negligence, an injured party must prove: (i) the school district or transportation company or HME supplier owed a duty to the injured student; (ii) the district/transportation company/supplier breached that duty; and (iii) the breach was the cause of the student’s injury.
“Duty” in a negligence case is broadly defined. A duty is a legal obligation that requires the defendant to conform to a certain standard of conduct to protect others against unreasonable risk. In deciding whether there is a duty, courts will often look at whether there is a special relationship between the parties. In the case of a student, the student has placed his or her life in the hands of the school bus driver to insure that he or she is transported to and from school safely.
In the event of an accident, the student may allege that the bus driver, the district, the transportation company and/or the supplier were negligent. For example, if the bus is rear-ended by another automobile, and a child falls out of his or her wheelchair as a result, then the district/transportation company could face liability for not properly restraining the child in his or her wheelchair.
In negligence cases, defendants are generally held to an ordinary duty of care. Thus, in deciding whether or not the HME supplier was negligent, the court will look to see if its actions were reasonable under the circumstances. In other words, would a reasonable HME supplier have acted the same way?
So what is the HME supplier’s duty of care? When a supplier sells a wheelchair to a special needs child, then how would a “reasonable HME supplier” address the issue of transportation brackets? It is reasonable for the supplier to take the following steps:
1. The supplier will verbally, and in writing, explain to the parents that for the child to be transported in the wheelchair in a school bus, then the wheelchair should have brackets.
2. The supplier will offer to provide the brackets for the wheelchair. In so doing, the supplier will offer to make a reasonable effort to secure third party reimbursement for the brackets.
3. If the supplier is unable to secure third part reimbursement, then the supplier will offer to sell the brackets for cash (at a commercially reasonable price) to the parents.
4. If the parents decline to purchase the brackets, then the supplier will verbally, and in writing, warn the parents (i) not to allow the child to be transported in a school bus without brackets, and (ii) of the possible consequences that might result from the child being transported without brackets.
5. The supplier should seek to obtain the parents’ signatures that they acknowledge the information and warning given to them by the supplier.
There is not much case law related to injuries that result from an accident involving the transport of a disabled child. This is likely due to the fact that the school bus is regarded as a safe form of transportation; thus, school buses are not often involved in accidents. It is also likely that most of the cases involving school buses are settled out of court. Set out below are summaries of two court decisions related to wheelchairs and schools buses.
1. Groves v. Dayton Public Schools, 725 N.E.2d 734 (Ohio Ct. App. 1999). Defendant’s motion to dismiss based on sovereign immunity was denied in this case. The denial was upheld by the appellate court. In this case, the plaintiff was a disabled student confined to a wheelchair. While the plaintiff was receiving assistance getting off the bus, her hand became wedged, causing injury. Plaintiff alleged that she was injured because the driver failed to properly secure her into her wheelchair before removing her from the bus. The school argued that the case should be dismissed because Dayton Public Schools are protected by sovereign immunity. The court agreed that Dayton Public Schools are protected by sovereign immunity; however, in this instance, the court found that immunity did not apply. The plaintiff’s case fell under a sovereign immunity exception. The court quoted the statutory exception as stating, in part, “a political subdivision is liable in damages in a civil action for injury, death or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of is employees in connection with a governmental proprietary function.” The court held that the bus driver’s responsibilities constitute a proprietary function. The case was permitted to proceed to trial. See also, Stevenson v. Brandywine School District, et.al., 1999 WL 742932 (Del. Super. 1999).
2. Marshall v. Caddo Parish School Board, 743 So.2d 943 (La. Ct. App. 1999). A wheelchair-confined child born with spina bifida was placed on a school bus for travel to school. As the bus backed up, it collided with a parked car. The child had been strapped into the bus with a lap seatbelt. Notably, the child was not restrained with the required shoulder harness. When the child returned from school, the mother noticed that the child had a bruise on his head and that he complained of neck and back pain. The school board was found to have been negligent in this case and ordered to pay $6,000 in damages as well as the child’s medical expenses. The school board appealed on standard evidentiary grounds. No issue of governmental immunity was raised. The verdict for the disabled child was upheld.
Minimizing the Risk of Liability
As can be seen from the discussion, above, when a child (in a wheelchair) is injured on a school bus, it is normally the district and the transportation company that are at risk for being liable. The HME supplier should not be liable unless it is negligent. Negligence will not arise unless the supplier fails to meet its duty of care. If the supplier takes those steps discussed above, then it is likely that the parents of an injured child will not file a lawsuit against the supplier, but if a lawsuit is filed, it is likely that the HME supplier will prevail.
Jeff may be reached at firstname.lastname@example.org or 806-345-6320.
This article is not intended to be legal advice or legal opinion on any
specific facts or circumstances. The contents are intended for general
information purposes only.