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Wheelchairs on the School Bus: Analyzing Liability Issues

Wheelchairs on the School Bus:  Analyzing Liability Issues

Written by Jeffrey S. Baird, Esq.

Introduction

There is a common problem which is becoming prevalent. Afraid of potential liability, school districts are increasingly refusing to transport children with disabilities whose wheelchairs have defective parts, such as broken wheel locks and broken head rests. This article will discuss federal requirements imposed on school districts and proactive steps districts, parents and other stakeholders can take to reduce risk of injury to the child…and risk of liability to the school district.

Federal Requirements

Federal Mandate for Provision of Transportation Services

The Individuals with Disabilities Education Act (“IDEA”) is codified at 20 U.S.C. §1400 etc. seq. The purpose of the IDEA, in part, is to:

  • ensure all children with disabilities have available to them a free appropriate public education which emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living;
  • ensure the rights of children with disabilities and parents of such children are protected; and
  • assist states, localities, educational service agencies, and federal agencies to provide for the education of all children with disabilities.  20 U.S.C. §1400 (d)

Achild with a disability is defined as a child:

  • with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
  • who needs special education and related services as a result thereof.  20 U.S.C. §1401 (3).

Related Services means:

Transportation and such developmental, corrective and other supportive services . . . as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.  20 U.S.C. §1401(26)(emphasis added).

Transportation is defined by the IDEA regulations as”

  • “travel to and from school and between schools, travel in and around school buildings,” and “specialized equipment if required to provide special education for a student with a disability.”  34 C.F.R. 300.24(b)(15)

Handicapped students are also entitled to transportation services to school in accordance with the provisions of the Rehabilitation Act.  See 34 C.F.R. §104.37 and §104.43.

Individualized Education Plan

Local educational agencies are required to conduct a full and individual initial evaluation to determine if a child meets the definition of a “child with a disability.” If a child is a “child with a disability,” then the local educational agency must work to prepare an Individualized Education Program (“IEP”) for the child. The IEP is created by a team of specialists, including personnel who provide related services. The IEP team works together to set goals for the child and assure a plan is in place to provide a “free appropriate education” for every child with a disability. In addition to receiving free instruction in the classroom, children with disabilities are also entitled to free transportation services. 

Federal Rules Related to Transporting Children with Special Needs

Unlike the laws in each state related to the use of child safety seats and seatbelts, there are no standard federal or state laws regarding the safety requirements for transporting children with special needs.  49 C.F.R. §571.222 does provide the minimum requirements for transporting a child in a wheelchair on a school bus:

  • The wheelchair locations shall have not less than four wheelchair securement anchorages using appropriate securement devices.
  • The wheelchair shall be secured in a forward-facing position.
  • The occupant of the wheelchair shall have not less than one anchorage for the upper end of the upper torso and no less than two floor anchorages for wheelchair occupant.

Theories of Liability

Whether or not a person or entity is liable for an injury sustained by a child with a disability while the child is being transported, is a question to be decided by each state court. Laws vary from state to state, but there are some general theories of liability which cross state boundaries.

Negligence

When a disabled child is injured while being transported, and if the child makes a claim for damages, then it is likely one of the theories of liability will be negligence. Generally, in order to prove negligence, an injured party must prove:
  1. The school district (“district”) or transportation company owed a duty to the injured student;
  2. The school district or transportation company breached that duty; and,
  3. The breach was the cause of the injured student’s injury.

“Duty” in a negligence case is broadly defined. A duty is a legal obligation which 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 ensure he or she is transported to and from school safely. 

In the event of an accident, the student may allege the bus driver, the district and/or the transportation company was negligent. For example, if the bus is rear-ended by another automobile, and a child falls out of his wheelchair as a result, then the district could face liability for not properly restraining the child in his or her wheelchair. 

Transportation companies and districts are prime targets for lawsuits in this area. To a plaintiff’s attorney, the district and transportation company will be seen as having substantial assets with which to pay a judgment.

In negligence cases, defendants are generally held to an ordinary duty of care. Thus, in deciding whether or not the district and transportation company were negligent, the court will look to see if their actions were reasonable under the circumstances. In other words, would a reasonable entity have acted the same way? KNOW YOUR STATE’S LAW! Some states hold transportation companies to not just a reasonable standard of care, but a “high standard of care.” Common carriers usually include railroads, public buses, airplanes, taxis, street cars and other such vehicles. Common carriers must show a “high degree of care” for the persons who use that mode of travel. Some states, such as Connecticut, provide that school buses ARE common carriers. On the other hand, state courts in Texas have specifically held that public school buses are not common carriers.

An injured party can seek damages permitted under state law. Such damages may include actual damages for personal injury or property damage, pain and suffering damages, economic injury damages, exemplary (punitive) damages, interest, court costs, and attorney’s fees.

Product Liability

Districts and transportation companies are not the only entities likely to face liability following an accident involving children with disabilities. The manufacturer of the wheelchair also faces potential liability.

An injured student can sue the wheelchair manufacturer for negligence using an analysis similar to the one discussed earlier, however, it is more likely the injured student will argue the manufacturer sold him/her a defective product. Generally, in order to prove the manufacturer of the wheelchair is strictly liable for manufacturing a defective wheelchair, an injured person must only show:

  • that the wheelchair was defective in some way; and,
  • that defect was a producing cause of the injury for which the injured student seeks recovery.

A manufacturer can be held “strictly liable” for defects in its wheelchair. This means the court will look at the wheelchair itself and determine if it was defective. If so, then the manufacturer can be found liable for any injuries which resulted from the defect. Strict liability offenses are considered to require less proof than other theories of liability – such as negligence.

Governmental Immunity

If an injured child brings suit against the district for injuries sustained as a result of wheelchair transport, the district will likely argue it is immune from suit because it is protected by governmental immunity. Each state is different, but this defense will most likely fail. All states have enacted governmental immunity statutes which, in general, protect the discretionary acts of a governmental agency from being subject to lawsuits. Almost all (if not all) of the states have an exception to this statute which provides that when the proprietary acts of the state cause injury to a person, there is no governmental immunity from a lawsuit.

Discretionary functions are those functions performed by the government which are necessary for the functioning of an orderly society, but which might also include risk, such as operating a police or fire department. However, when a government engages in proprietary functions, or business-like functions, the government is less likely to have such immunity. Thus, when the bus driver negligently becomes involved in an accident or negligently fails to properly tie down a chair as required by the IEP, governmental immunity is normally lost.

Court Decisions

Unfortunately, there is not much case law related to injuries which 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 most of the cases involving school buses are settled out of court. Set out below are summaries of some of the court decisions related to wheelchairs and schools buses.

Helmin v. Student Transportation Company, Inc., 139 N.W.2d 103 (Wis 1966).  Student Helmin, who was confined to a wheelchair, was waiting on a ramp at his school building. Helmin was waiting for the handicapped school bus to arrive. Helmin’s wheelchair rolled off the ramp and collided with the handicapped school bus causing him injury. Helmin sued the transportation company for negligence. The transportation company filed suit against the Board of School Directors of the City of Milwaukee (“Board”). The Board challenged its involvement in the case. The lower court ruled that the proper third party defendant was the city of Milwaukee, not the Board. The appellate court affirmed this holding based on its review of Wisconsin statutes and precedent. Any case against the city or Board was deemed improperly pled and the transportation company was not permitted to amend its pleading.

Primm v. USF & G Insurance, 922 S.W.2d 319 (Ark. 1996).  Jerrod Suggs’ mother sued the school board’s insurance carrier claiming the school had injured her son. Jerrod, a child with spina bifida, was paralyzed and confined to a wheelchair. Jerrod also had brittle bones. On the day of the injury, Jerrod was required to stay in the classroom during recess because it was too cold for him to play outside. Jerrod was supposed to be supervised by Ms. Perkins while in the classroom, but for some reason, Ms. Perkins stepped out of the room. While Ms. Perkins was away, another child started pushing Jerrod around the room and caused his wheelchair to tip over. Jerrod did not appear to be severely injured. As a result, he was sent home and the bus driver explained to Jerrod’s mother the circumstances of his injury. Six days later, Jerrod’s mother discovered he had a broken bone in his leg. Jerrod’s mother sued the school for negligence. The jury returned a verdict in favor of the school finding it was not negligent in its supervision of Jerrod. Jerrod’s mother appealed on evidentiary grounds, but the verdict was upheld.

Day v. Middletown Monroe City School District, 2000 WL 979141 (Ohio Ct. App. 2000).  Sixteen year old Nicole was dropped off at her regular bus stop. While walking home, Nicole was required to cross a set of railroad tracks. When crossing the railroad tracks, Nicole was hit by a freight train. At the time the case was heard by the court, Nicole remained in a coma. Nicole’s mother brought a lawsuit against the Board of Education, the school district, and the bus company alleging the defendants were negligent. The trial court found the district could not be sued for negligence based on its discretionary decision to place the bus stop in its geographical location. The trial court held the district was protected by the sovereign immunity statute; however, the court further held the Board of Education was not covered by the principal of sovereign immunity. The Board of Education appealed the lower court’s decision. Relying on its interpretation of the state sovereign immunity statute, the Court of Appeals overturned the lower court and found the Board of Education was protected by sovereign immunity. The court found, in part, that “Because the transportation of students is a governmental function of the Board, the Board is immune from suit for injuries arising out of the function unless one of the statutory exceptions applies.” The court found none of the exceptions applied in this case.  See also, Glover v. Dayton Public Schools, 1999 WL 958492 (Ohio Ct. App. 1999).

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 she was injured because the driver failed to properly secure her into her wheelchair before removing her from the bus. The school argued the case should be dismissed because Dayton Public Schools are protected by sovereign immunity. The court agreed Dayton Public Schools are protected by sovereign immunity; however, in this instance, the court found 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).

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 the child had a bruise on his head and 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.

Bell v. Ayio and West Baton Rouge Parish School Board, 731 So.2d 893 (La. Ct. App. 1999).  Plaintiff sued the school board after she was injured in a fight with another student. No wheelchairs or disabilities were involved in this case. The plaintiff told the bus driver she was threatened by another girl on the bus. At the next stop, which happened to be a school, the bus driver moved the plaintiff and the other girl off the bus and asked a teacher to bring the principal. While waiting on the principal, the driver got on the bus to move it. At that point, the girl jumped on the plaintiff and stomped on her ankle. The court determined the bus driver and the school board were negligent. However, the court reallocated the fault and determined the bus driver and school board were only 15 percent liable for the plaintiff’s injuries.

Reducing the Risk of Liability

If the following steps are taken, the risk of liability to the district and transportation company will be reduced:

  • Assure a transportation representative is part of the IEP team.
  • Prepare a detailed plan for transporting the child on the school bus. The plan should address all contingencies identified. 
  • Communicate with the child’s bus driver. Make sure he or she is aware of the IEP and understands the importance of following the IEP.
  • Ensure the bus driver has access to a representative of the IEP team. If the bus driver encounters a new problem with the child’s transportation plan (e.g., the child is too big to be transported in accordance with the plan), the bus driver should bring the issue to the attention of the IEP team members. In response, the IEP team members should consider amending the IEP.

In deciding on transport options for the child, the district should use its resources to make the child as safe as possible. The district/transportation company should inspect the child’s wheelchair on a regular basis. If the district/transportation company discovers a defect (e.g., broken wheel lock or broken head rest), then it should inform the child’s parents verbally and in writing. The district/transportation company should further inform the parents (verbally and in writing) the child will not be transported on a school bus until the defects are corrected.

Obtain the parents’ written consent for the initial transportation plan and for any subsequent amendments.

The district should have a reason for everything it does…or does not do.

These written materials are not intended to be legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. The law pertaining to the issues addressed by these written materials may have changed since these written materials were submitted. The reader should consult his or her own attorney for legal advice.