School Bus and School-Related Injuries: The Immunity Hurdles

Published August 29, 2017 · Injury Law Basics

School started back across the Miami Valley this month, which means thousands of children are once again riding buses, climbing playground equipment, and spending seven hours a day in buildings their parents never see. Most of the time nothing goes wrong. When something does, the first thing a parent hears, often from the district itself, is that "the school is immune." That statement is half true, and the half that is false is the half that matters to your child.

Ohio's political-subdivision immunity statute gives school districts broad protection, but the same statute carves out exceptions, and a bus crash falls squarely into one of them. This post walks through which school-related injury claims survive immunity, which usually do not, and what a parent should do in the first few days.

The basic rule: immune unless an exception applies

R.C. 2744.02(A)(1) starts with a flat statement: a political subdivision, which includes a public school district, is not liable for injury or death caused by its acts or omissions in connection with a governmental or proprietary function. Running a school, operating buses, and supervising students are all governmental functions.

The statute then turns around in division (B) and lists the situations in which the district is liable anyway. Two of those exceptions do most of the work in school cases.

Exception one: the school bus crash

R.C. 2744.02(B)(1) makes a political subdivision liable for injury or death "caused by the negligent operation of any motor vehicle by their employees" acting within the scope of their employment. A school bus is a motor vehicle. A bus driver who runs a stop sign, pulls out in front of traffic on Route 35, or fails to check that a child has cleared the front of the bus before pulling away is operating a motor vehicle negligently, and the district can be held responsible just as a private employer would be.

The statute does give police, fire, and emergency medical drivers a special defense when they are responding to an emergency call, which we discussed in the context of a police cruiser crash. That defense does not apply to a school bus driver on a route. The ordinary negligence standard governs.

The motor-vehicle exception matters to two groups of people: the children on the bus and everyone else on the road. A driver whose car is struck by a bus that pulled into traffic has the same claim against the district as a parent whose child was thrown from a seat. In both situations the key evidence is the same, and much of it belongs to the district: the bus's on-board cameras, the route sheets, the driver's training and discipline file, and any GPS or telematics data. We send a preservation letter for those items immediately, because bus video in particular is overwritten on a short cycle.

Exception two: physical defects in school buildings

R.C. 2744.02(B)(4) makes a district liable for injuries caused by its employees' negligence that occur on the grounds of buildings used for a governmental function and that are "due to physical defects within or on the grounds of" those buildings. A broken handrail on a stairwell, a gym floor that was left wet and unmarked, a door closer that slams on a child's hand, or playground equipment with a known broken weld can all qualify.

Two things to understand about this exception. First, the defect has to be physical; a claim that a teacher failed to watch the playground closely enough is not a physical-defect claim, no matter how bad the injury. Second, it is still a negligence claim: the district must have known or should have known about the defect and failed to fix it or warn about it. Maintenance records, work orders, and prior complaints are how that gets proved.

The hard cases: supervision, bullying, and assaults

The claim parents most often want to bring is the one the statute protects most strongly. Allegations that a teacher, aide, or coach failed to supervise children, failed to stop bullying, or let a dangerous situation develop are claims about judgment and discretion, and the district itself is almost always immune from them.

There is a narrower path against the individual employee. Under R.C. 2744.03(A)(6)(b), a school employee loses personal immunity if his or her acts were "with malicious purpose, in bad faith, or in a wanton or reckless manner." Reckless, in this context, means far more than careless. Courts require conduct that the employee knew or should have known was very likely to cause serious harm. A coach who ran a drill he had been warned was dangerous, or an administrator who ignored specific, repeated reports that a student was being assaulted, may meet that standard. An aide who looked away for thirty seconds usually will not.

We wrote last year about how these rules played out after a school shooting in Parmertor v. Chardon Local Schools. The lesson from that case and others like it is that supervision claims against schools are difficult, and a parent should hear that honestly before deciding how to proceed.

The claim that never faces immunity: the other driver

Here is the point that is easy to lose in the immunity discussion. If your child was hurt on a school bus because another driver hit the bus, that driver has no immunity at all. The claim against the other driver is an ordinary car accident claim, governed by the same negligence rules and paid by the same auto insurance as any other crash. The same is true if your child was struck in a crosswalk by a private driver while walking to school or getting off the bus.

In a bus crash with a private vehicle, we usually pursue both routes: the other driver for ordinary negligence, and the district under the motor-vehicle exception if the bus driver also contributed. Children on a bus are almost never at fault for anything, so the only question is which adults share responsibility and in what proportion.

Deadlines and notice

Claims against a political subdivision must generally be filed within two years under R.C. 2744.04(A). That period is tolled for a minor under R.C. 2305.16, which means a child's own claim does not expire while the child is under eighteen. But a parent's separate claim for medical bills is not tolled the same way, and evidence does not wait for anyone. Bus video, witness memories, and maintenance records are at their best in the first weeks, not years later. We explained the special rules for children's claims, including court approval of settlements, in When a Child Is Injured.

What this means for you

Do not accept "the school is immune" as the final word. If your child was hurt in a bus crash, the district is liable for its driver's negligence and the other driver is liable for his. If the injury came from a broken or dangerous condition of the building or grounds, there is an exception for that as well. The truly protected claims are the supervision claims, and even those have a narrow path against a reckless employee.

In every one of these claims the evidence is in the district's hands and on a short clock. Write down what your child tells you while it is fresh, get the names of adults and children who were present, photograph any injuries and any defect, and call a lawyer before the video is gone.