Negligent ‘Operation of Vehicle’ Does Not Include School Bus Driver’s Failure to Control Conduct of Child Passenger
2007-1304. Doe v. Marlington Local School Dist. Bd. of Edn., Slip Opinion No. 2009-Ohio-1360.
Stark App. No. 2006CA00102, 2007-Ohio-2815. Judgment affirmed.
Moyer, C.J., and Lundberg Stratton, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents.
O'Connor, J., dissents without opinion.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1360.pdf 
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(March 31, 2009) In a decision interpreting the state law that confers general immunity from civil lawsuits on cities, school districts and other political subdivisions, the Supreme Court of Ohio ruled today that an exception in the law allowing suits based on “negligent operation of a motor vehicle” does not apply to claims that a school bus driver negligently failed to supervise the conduct of the students riding on the driver’s bus.
Writing for a 5-2 majority of the Court, Justice Robert R. Cupp characterized the facts of the case as “disturbing,” but held that, as a matter of law, the statutory provision allowing civil claims against political subdivisions for injuries arising from “operation of a vehicle” was not intended to cover claims for failure of a driver to control or supervise the conduct of vehicle passengers.
The case involved a 10-year-old special needs student identified as Holly Roe, whose family sought to recover civil damages from the Marlington Local School District for physical and emotional injuries Holly suffered as a result of being sexually assaulted on multiple occasions by another special needs student while they were riding on a district school bus. The assaults, which went on over a period of several months, were undetected by the bus driver, who sometimes allowed her passengers to be out of their seats and out of her range of vision.
Acting on Holly’s behalf, her mother filed suit against the school district in the Stark County Court of Common Pleas. The district filed a motion for summary judgment based on R.C. 2744.02, which grants political subdivisions immunity from civil liability for the negligent acts or omissions of public employees in the performance of their official duties. Holly’s family opposed the motion, arguing that her injuries fell under an exception to immunity for damages arising from a public employee’s “negligent operation of a motor vehicle.” The trial court denied summary judgment in favor of the school district, and allowed the suit to proceed.
The school district appealed. On review, the Fifth District Court of Appeals reversed the trial court, holding that the school district was immune from liability under R.C. 2744.02 and therefore was entitled to summary judgment. In its decision, the court of appeals noted that the sovereign immunity statute does not define what actions constitute the “operation” of a motor vehicle, but held that prior court decisions have limited the exception to immunity to injuries caused by the actual physical driving, stopping or mechanical operation of a vehicle, and not to injuries caused by other negligent acts or omissions by the driver. Attorneys for Holly’s family sought and were granted Supreme Court review of the 5th District’s ruling.
In today’s decision, Justice Cupp agreed with the 5th District’s analysis. While acknowledging a 1986 decision, State v. Cleary, in which the Supreme Court held that an alcohol-impaired driver was “operating” a vehicle within the meaning of R.C. 4511.19 by being seated in the driver seat of a stopped car with the keys in the ignition and the engine running, Justice Cupp rejected the Does’ claim that “operating” a school bus involves the performance of non-driving-related duties specified in the driver’s job description, including supervision and control of passengers.
“Since Cleary, the General Assembly has amended R.C. 4511.01 to add a definition of ‘operate,’” wrote Justice Cupp. “R.C. 4511.01(HHH) provides that ‘operate’ means ‘to cause or have caused movement of a vehicle, streetcar, or trackless trolley.’ That statute was in effect at the time of the events that precipitated this case. ... (T)he definition of ‘operate’ in R.C. 4511.01(HHH) is generally consistent with the interpretation courts have given to ‘operation’ under R.C. 2744.02(B)(1).”
“For example, in Doe v. Jackson Local School Dist. (2007)the court rejected a claim that the immunity exception for the negligent operation of a motor vehicle included the supervision of students who were passengers in a school mini-van. The court noted that while pupil management may well be part of the driver’s responsibility, it is a responsibility that is separate and distinct from that of the operation of the motor vehicle. And in Doe v. Dayton City School Dist. Bd. of Edn. (1999), the court rejected an argument that the alleged negligent supervision of students on a school bus, which failed to prevent a sexual assault of a minor student, amounted to negligent operation of a motor vehicle. The court reasoned that the student suffered harm as a result of an external factor, the conduct of another student, and that harm was not directly traceable to the driver’s operation of the bus, as required by R.C. 2744.02(B)(1).”
“We conclude that the exception to immunity in R.C. 2744.02(B)(1) for the negligent operation of a motor vehicle pertains only to negligence in driving or otherwise causing the vehicle to be moved. The language of R.C. 2744.02(B)(1) is not so expansive that it includes supervising the conduct of student passengers, as alleged in this case. ... This is not to say that supervision of students may not be a part of a school bus driver’s duties. As the Does point out, the Ohio school-bus-driver training requirements include instruction in pupil management. ... However, it does not follow that every duty required of a school bus driver, or for which the driver is trained, constitutes operation of the school bus within the meaning of R.C. 2744.02(B)(1).”
Justice Cupp’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger. Justice Maureen O’Connor dissented without opinion.
In a dissenting opinion, Justice Paul E. Pfeifer wrote that in his view the exception to immunity for negligent “operation” of a school bus pursuant to R.C. 2744.02(B)(1) “includes ‘driving’ but also includes other activities relevant to the general purpose of the vehicle.” He pointed to several provisions of the Ohio Administrative Code that impose duties on school bus drivers that go beyond merely “driving” the bus. “Before a bus driver may ‘operat[e] a school bus with pupils on board,’ he or she must complete training that includes ‘[d]riving the bus,’ but also includes ‘[p]upil management.’ … Before ‘operating a bus with pre-school and special needs children on board,’ the driver must receive training in ‘[a]ppropriate behavior management.’ … Throughout Ohio Adm. Code 3301-83-10, in regard to driver-training requirements, annual inservice training, and certification renewal, driving is treated as only one part of operating a school bus,” wrote Justice Pfeifer.
“Whether the driver in this case was negligent should be an issue for the trier of fact. This case is about more than whether the Marlington school board is liable; it is about whether a school board can ever be liable for anything that happens on a school bus. The injurious activities in this case were apparently surreptitious. But the holding today would apply to cases where the abuse was visible. It would apply to cases where a child was screaming for help. It would apply to cases where a bus driver allowed strange adults onto the bus. As long as the driver drove safely, the school district would be immune. ... The exception from immunity contained in R.C. 2744.02(B)(1) should apply to all aspects of operating a school bus.”
Contacts
John F. Hill, 330.253.4000, for Jane Doe, mother of Holly Roe.
David K. Smith, 216.503.5055, for Marlington Local School District.