NSBA Amicus Brief Warrington v. Tempe Elementary School District (Ariz. Sup. Ct.)

Supreme Court of Arizona

ANDREW C. WARRINGTON, a minor

by his next friend and natural father,

STEVEN M. WARRINGTON; No. CV99-0395-PR

STEVEN M. WARRINGTON and

JENNIE J. WARRINGTON,

husband and wife,

Plaintiffs-Appellees

(No. 1 CA-CV 98-0537)

vs.

TEMPE ELEMENTARY School (Maricopa County District No. 3, Superior Court No. CV 94-01529)

Defendant-Appellant

_________________________________

__________________________________________________________________

BRIEF OF AMICI CURIAE

Arizona School Boards Association, Inc.

National School Boards Association

_________________________________________________________________

Thomas W. Pickrell (007479)

Arizona School Boards Association, Inc.

2100 North Central, Suite 200

Phoenix, Arizona 85004

(602) 254-1100

Statement of the Issue

The Court of Appeals addressed three issues in its opinion. From the perspective of the Amici, this case pivots upon a legal question that the Court of Appeals failed to fully analyze and resolve not once, but twice. The question is, moreover, one of first impression for the Arizona courts:

Does a school district have a duty to protect a student from harm after he or she has been safely discharged at a school bus stop?

Argument

In this case, the Plaintiffs Steven and Jeanie Warrington ("Plaintiffs") allege that the Defendant Tempe Elementary School District ("District") negligently "failed to provide a safe bus stop and route home" to their son, Andrew. Without question, a school district has a duty to discharge a student at a safe bus stop. Also without question, that duty was fulfilled. Andrew was safely discharged in a manner and at a location that fully complied with state regulations for school bus stops.

Does a school district, however, also have a duty to insure that a student has a safe passage home? Various state courts that have squarely addressed this question have consistently ruled that the answer is "no." The public policy behind these rulings is easily understood: school districts cannot be expected to shield students from all foreseeable risks—including, as in this case, the possibility that a student may dart into traffic. Under such duty, school districts would become, in essence, the guarantor of a student’s safety even though the student is beyond the district’s custody and control.

For this reason, and all of the reasons set forth in Appellant’s Petition for Review, the Amici join the District in urging the Court to accept review of this case, vacate the opinion of the Court of Appeals, and issue its mandate ordering the trial court to enter judgment in favor of the District.

I. The Court of Appeals failed to fully consider the issue of legal duty.

Under Arizona’s common law, school officials have a "duty not to subject students within their charge to a foreseeable and unreasonable risk of harm through acts, omissions, or school policy." The words "within their charge" underscore the fact that school officials’ duty of care toward their students must be limited by the circumstances of place and time. "[I]n approaching the question of negligence or unreasonable risk, the courts set outer limits." With regard to a school official’s duty of care, the Arizona courts have not hesitated to limit the liability of school districts for injuries suffered by students while off campus and beyond school officials’ physical control.

In this case, the Plaintiffs seek to hold the District responsible for their son’s injuries, claiming that the District should have added a bus stop to shorten the distance to their home and thereby eliminate the risk that Andrew would dart into traffic. In resolving this claim, the Court of Appeals should have squarely addressed the question, whether a school district’s legal duty of care continues even when it has no custody or control over its student. Unfortunately it did not do so.

In Warrington II,, the Court of Appeals concluded that it "determined in Warrington I that the District owes a duty, when locating a bus stop, to refrain from subjecting its students to any foreseeable and unreasonable risk of harm." The issue in Warrington I, however, was whether the District had absolute immunity from Plaintiff’s claim. The Warrington I court answered this question in its concluding sentences:

Because one of Mr. Toth’s duties was school bus stop placement, an operational function, he had a duty not to subject the District’s students to a foreseeable and unreasonable risk of harm. . . . It remains to be seen whether [Plaintiffs-] Appellants can prove their claim; we merely hold that the District does not have absolute immunity from the claim.

Clearly, the Warrington I court was attempting to equate the duties of Mr. Toth, the District’s transportation coordinator, with the variety of educational and other services that are "operational functions" and, thus, do not receive immunity. At no time did the court consider the outer boundaries of the legal duty of care between school and student or how that duty would be limited by a loss of custody or control over the student.

The Warrington II court, thus, avoided any analysis of the common law or of the policy implications of its ruling by precluding the issue. Oddly, despite finding the issue precluded, the Warrington II court cited two cases in support of the view that a school district has a "duty, when locating a bus stop, to refrain from subjecting its students to any foreseeable and unreasonable risk of harm." Neither of the cited decisions is apposite, however.

In Brooks v. Woods, the Oklahoma Court of Appeals held that a school district has "a duty to provide a reasonably safe school bus site." As the court noted,

School District argues that its duty is strictly limited to the bus ride and all responsibility for the child’s preboarding safety lies with the parent. We would agree with this proposition except for the fact that neither parents nor children have discretion as to where the bus will stop. Such an argument would conceivably permit a bus stop in the middle of the traffic island.

In this case, there is no question that the District (like all other school districts) has a duty to discharge students at a safe bus stop. And in this case, that duty was fulfilled: Andrew was safely discharged in a manner and at a location that fully complied with state regulations for school bus stops. Brooks, therefore, does not address the question presented in this case, which is the school district’s duty after the student has been safely discharged at a bus stop.

The Warrington II court also cited Posteher v. Pana Community Unit School District, quoting specifically the Illinois court’s statement that a school district "may not select routes or pickup points that needlessly expose the pupils to any serious hazards . . ." What the Warrington II court ignored, however, is the fact that the case was an action seeking a writ of mandamus to overturn a school district’s decision regarding the location of a school bus stop. The court states succinctly the duty it found:

We believe the extent of the duty imposed upon a school district in the selection of its school bus routes and pickup points is this: A school district has full discretion in establishing its school bus routes and pickup points; it must comply with the terms of the applicable statutes and the rules, regulations and guidelines adopted by the State Board of Education; it must not act capriciously or arbitrarily, and it must not select routes or pickup points that needlessly expose the pupils to any serious hazards to safety exceeding those that normally attend school bus operations. As a corollary, the decision of a school district in selecting bus routes and pickup points will not be set aside unless there has been an abuse of its discretion.

There is nothing remarkable about the duty described by the court. In essence, the ruling confirms that the Illinois courts will not overrule an administrative decision regarding a bus stop location unless it is clearly arbitrary or capricious. Like Brooks, the decision in Posteher simply is not germane to the legal duty presented in this case.

II. Under the common law, a school district’s duty of care ends when a student has been discharged at a safe bus stop.

The question of a school district’s liability for injuries suffered by a student after he or she has been safely discharged at a bus stop has not been addressed by the Arizona courts. Several courts in other states, however, have examined this issue in a variety of circumstances. These courts have found consistently that, under the common law, a school district’s duty of care ends when the student has been safely discharged from the bus at a location that is physically safe for the student. In most of these decisions, the court’s overriding consideration is the fact that the school district has, at the time of discharge, relinquished physical control over the student. At that point, the parent or guardian is responsible for the safety of the student and can see to the student’s safe passage in any number of ways, including meeting the student at the bus or declining bus service altogether.

The rulings of these courts leave no question as to the limit of a school official’s duty of care:

[T]he school district’s obligation to provide safe bus stops does not extend beyond the location of the stop. The school district does not have an obligation to furnish transportation directly to and from a child’s home, or even to provide transportation which, with respect to any particular child, will prevent that child from encountering traffic hazards.

School boards . . . are not insurers of students’ safety, and a school board’s control over its students regarding transportation extends from when a school bus picks up a student at a bus stop to the school door. When a student is injured before reaching a designated bus stop, or after leaving one, that student is outside the board’s duty of care because the board’s duty stems from the fact of the school board’s physical custody of its students.

The duty to ensure the safety of students prior to the time that the bus arrives and after the time the school bus drops them off at their designated bus stops rests solely with the students themselves and their parents or guardians. The liability of the school board and its employees for injuries to students exists only when the school board has actual custody of the students entrusted to their care.

III. As a matter of public policy, school districts should not be held responsible for insuring the safety of a student traveling between a bus stop and home.

The common law rule that a school district’s duty of care ends after a student has been safely discharged at a bus stop is rooted in sound public policy. Arizona’s public schools currently serve approximately 750,000 students, of which more that 300,000 are transported on school buses. Students, other than those with a disability, do not have a right to transportation to or from school. But school districts universally offer this service to students whose residence is more than one mile from their elementary school or more than two miles from their high school.

Coordinating student transportation within a school district is a complex undertaking. School districts’ bus fleets typically serve multiple schools. Bus routes and stops must be scheduled so that students arrive and depart their schools on time. At the same time, the safety of school buses and student conduct while riding buses are an increasing concern shared by parents and school officials alike. Some districts have begun to retrofit their buses to have seat belts for student passengers. Many districts have installed on-board surveillance cameras to deter students from misbehaving while on the bus. Today, student transportation is an integral part of the educational mission of school districts, but it is provided under difficult budgetary constraints. As the Arizona courts have recognized, school districts face funding shortages that make it difficult to fulfill their most basic educational missions.

If the trial court’s ruling is affirmed, the Court will add to the responsibilities of school districts a duty that it cannot reasonably fulfill—insuring the safety of students walking between their bus stop and home. If this responsibility were imposed on school districts, transportation officials would need to (1) determine the destination (i.e., the home of the student or a care-giver) where a student will go each day after he or she is released at a bus stop, (2) ascertain what routes that the student is most likely to take to arrive at that destination, and (3) evaluate the route or routes to determine what risks the student might encounter between the bus stop and destination. If risks are present, then the school district would have to add another bus stop or move an existing stop closer to the student’s destination until the risks are obviated. This procedure, of course, would apply to every student who rides a school district bus.

Other courts have had no difficulty recognizing the extraordinary challenge that school transportation officials would face. School districts can be expected to designate their bus stops in locations that are safe for students who must stand at them, but to impose a duty to place bus stops so as to give every student a safe passage home is unworkable and unreasonable:

It appears to us that to require the school board to decide on school bus stop location under a threat of tort liability in the event a judge or jury at some later date might determine that the chosen location constituted a safety hazard to an individual child injured enroute to it, would present some difficulties. It is obvious that some potential for injury to a child would exist at any location where motor vehicle traffic exists yet it would be totally impracticable and indeed impossible to locate a bus stop at any place where this would not be true. Furthermore, a location deemed "most reasonably safe" for some could pose safety problems different in kind and degree for other pupils, given the fact that they very likely approach the bus stop from different directions, and by different routes. Finally, one might easily conclude that the safety of each child could be insured to the utmost only by requiring the bus to stop at each child’s home, yet it is equally apparent that his would be totally impracticable because of other factors, such as the length of time the children would be required to endure the bus ride, the potential for increased hazards generated by the bus leaving and re-entering well-traveled routes, to name but a few.

Considering such an undertaking in light of the facts and opinions offered regarding this case also reveals how difficult, if not impossible, this duty would be for school districts to fulfill:

1. The student is discharged—physical control is lost.

On the afternoon of the accident, Andrew was safely discharged from the School District’s bus at a stop located near the corner of 41^st Street and Huntington. Once the student is discharged, the school district has lost physical control over the student. At this point, no school official is physically capable of preventing the student from harming himself or being harmed by the actions of another person.

2. Where will the student go when he leaves the bus stop?

From the bus stop, Andrew intended to walk home. Many students, however, do not go home once they are discharged from a bus stop. Some go to homes where they are supervised until their parents return home from work, while others go to their classmates’ homes to play. These arrangements, moreover, may be made in advance or on a moment’s notice. Even if a school official undertook to evaluate each student’s travel plans from the bus stop, how could the official remain apprised of where each student would go after school?

3. Which way will the student go when he leaves the bus stop?

From the bus stop, Andrew had two options to walk to the Hidden Hollow Subdivision where his home was located: (1) a northern route along 41^st Street to Sunland Avenue, where he could cross an open field, or (2) a southern route from 41^st Street to Southern Avenue, where he would walk one block to 42^nd Place. Andrew previously had used both routes and also was met regularly at the bus stop by his mother. If a student had more than one route home, how would a school official determine which route the student will take, much less require a student to take the safest route? And what if the student was regularly met at the bus stop by a parent or guardian? Would that relieve the district of the duty to ensure a safe route home? Or might it add yet another duty to not release the student if the parent is not at the stop when the bus arrives?

4. When is a street safe or unsafe?

The essence of the Plaintiffs’ claim is that walking along on Southern Avenue created an unreasonable risk for Andrew. The testimony about the safety of Southern Avenue illustrates many imponderables that would arise if a school official had a duty to evaluate whether a student had a safe passage after departing from a bus stop.

John Goss, the Plaintiffs’ expert witness, believed that Southern Avenue was unsafe because it carried traffic at speeds in excess of 45 mph. In fact, many schools are located on such streets, and many school districts are laced with streets with posted speed limits of 40 mph or more. It is doubtful that school officials could avoid having students walk along such streets without discharging students at their residence.

Mr. Goss testified that the portion of Southern Avenue that had only a sidewalk was dangerous but the portion that included an access street and median was safe. Indeed, the accident occurred where, according to Mr. Goss, Southern Avenue was safe: Andrew had to run across the access street and median to arrive at the point on Southern Avenue where the car struck him. This fact illustrates, as Mr. Goss also testified, that a student could be injured by darting into traffic on any street.

Mr. Goss testified that walking on Southern Avenue was safe for students who lived on Southern Avenue but not for students who lived in the Hidden Hollow Subdivision. Is it reasonable to expect a school official to determine that a street is safe for one student but for another? And how would this official justify making a special bus stop only for the student for whom the street was deemed unsafe but not for other students who had to walk along it?

5. What other risks must a student be protected from?

A student walking to or from school or a school bus stop could encounter any number of risks, all of which once conceived in a school official’s mind could be considered to be "foreseeable." Kidnappers, sex offenders, criminal gangs, drug peddlers, drunk drivers, reckless drivers are some of the dangers that could harm a student between a bus stop and home. While some of these risks have been determined, as a matter of law, to not pose a foreseeable and unreasonable risk within the negligence matrix, they illustrate the endless parade of possibilities that would confront a school transportation official charged with the duty to ensure every student a safe passage home. It has been said that a "reasonably foreseeable event is one that might ‘reasonably be expected to occur now and then, and would be recognized as not unlikely if it did suggest itself to the actor’s mind.’" But it has also been observed that "[i]n the end, too, virtually anything is arguably ‘foreseeable.’" Whether a risk is foreseeable and unreasonable simply cannot be determined with precision or certainty. As a matter of public policy, it is simply unreasonable to expect school transportation officials to evaluate every student’s route home under such a nebulous standard.

IV. Conclusion

"In approaching the question of negligence or unreasonable risk, the courts set outer limits." "[W]hat is "reasonably foreseeable" sounds like a fact question well suited for determination by a jury, which is theoretically composed of reasonable people. Yet assigning this question to the jury abdicates the judiciary’s role of deciding how far the law should extend in imposing liability." The question of a school district’s responsibility for injuries suffered by a student after being safely discharged at a bus stop is not one that should be determined, as a liability standard for all of Arizona’s 225 school districts, by one jury. This question should be resolved by this Court as a matter of law.

State courts have consistently found that the common law does not impose upon school districts a duty to insure a student’s safe passage between a bus stop and home. Courts have refused to impose this duty because a student’s physical safety depends upon many variables, none of which are within a school district’s control. Only with door-to-door transportation—entailing a massive reallocation of funding and resources—could school districts fulfill such an extraordinary responsibility.

For the foregoing reasons, the amici Arizona School Boards Association, Inc. and National School Boards Association urge the Court to accept review, vacate the opinion of the Court of Appeals and issue its mandate ordering the trial court to enter judgment in favor of the District.

Respectfully submitted this __ day of January 2000.

ARIZONA SCHOOL BOARDS ASSOCIATION, INC.,

National school Boards Association

amici curiae

_________________________________

THOMAS W. PICKRELL (07479)

2100 North Central Avenue

Phoenix, Arizona 85004

(602) 254-1100

Attorney for the Amici Curiae

Certificate of Compliance

Pursuant to Rule 14(b) of the Rules of Civil Procedure, the undersigned certifies that this brief uses a proportionately spaced typeface of New Times Roman at 14 points. According to the Microsoft Word word count function, this brief contains 3,582 words, excluding the Table of Contents, Table of Authorities, Certificate of Service, the Certificate of Compliance.

Respectfully submitted this ___ day of January _____, 2000.

___________________________________________

Thomas W. Pickrell

Certificate of Service

Thomas W. Pickrell, attorney for amicus curiae Arizona School Boards Association, Inc., states that on January ____, 2000 he caused the original and six copies of the foregoing Brief of Amici Curiae to be hand-delivered to the Clerk of the Court of the Supreme Court, 1501 West Washington, Phoenix, Arizona 85007-3329, and two copies to be mailed to:

James P. Cunningham

330 North Second Avenue

Phoenix, Arizona 85003

Attorney for Plaintiffs-Appellees

Bradley R. Jardine

Jardine, Baker, Hickman & Houston

600 Norwest Tower

3300 North Central Avenue

Phoenix, Arizona 85012

Attorneys for Defendant-Appellant

________________________________

Thomas W. Pickrell