Cooper v. Millwood Independent School Dist. No. 37, 83545

• Decision Date: 02 August 1994
• Docket Number: No. 1,No. 83545,83545,1
• Citation: 887 P.2d 1370,1994 OK CIV APP 114
• Parties: 1994 OK CIV APP 114, 96 Ed. Law Rep. 1188 Cassandra Pollard COOPER, individually and on behalf of Darshaun Montrell Cooper, a minor, Appellant, v. MILLWOOD INDEPENDENT SCHOOL DISTRICT NO. 37, a political subdivision of the State of Oklahoma; James Ester Neal an individual, Appellees, and Levi Kelly, an individual minor; Levi L. Kelly and Bessie B. Kelly, parents of Levi Kelly, Defendants. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1370

887 P.2d 1370

1994 OK CIV APP 114, 96 Ed. Law Rep. 1188

Cassandra Pollard COOPER, individually and on behalf of Darshaun Montrell Cooper, a minor, Appellant, v. MILLWOOD INDEPENDENT SCHOOL DISTRICT NO. 37, a political subdivision of the State of Oklahoma; James Ester Neal an individual, Appellees and Levi Kelly, an individual minor; Levi L. Kelly and Bessie B. Kelly, parents of Levi Kelly, Defendants.

No. 83545.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 1.

Court of Appeals of Oklahoma Division No. 1.

Aug. 2, 1994.

Rehearing Denied Aug. 30, 1994.

Certiorari Denied Nov. 17, 1994.

Appeal from the District Court of Oklahoma County; Carolyn R. Ricks, Trial Judge.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS.

William D. Watts and Michelle Johnson, Oklahoma City, for appellant.

Bruce A. Robertson, Oklahoma City, for appellees.

OPINION

HANSEN, Presiding Judge:

Appellant, Cooper, perfects this appeal pursuant to Rule 13(h), Rules for the District Courts, 12 O.S.1993 Supp., Ch. 2, App., and Rule 1.203(A), Rules of Appellate Procedure, 12 O.S.1993 Supp., Ch. 15, App. 2. In compliance with 12 O.S.1993 § 994(A), the trial court certified that its dismissal of Cooper's claims against Appellees was a final order and that there was no reason for delay although her claims against Defendants Kelly are still pending.

This appeal arises from an action filed in district court against Neal, the driver of a school bus and Millwood Independent School District (Millwood). Cooper, on behalf of her minor son Darshaun, alleged Darshaun suffered a fractured skull and permanent injury to his left eye when Defendant Levi Kelly committed an assault and battery on Darshaun while riding a school bus operated by Appellee Millwood and driven by Neal. She brought her action pursuant to the provisions of the Oklahoma Governmental Tort Claims Act, 51 O.S.1991 § 151 et seq. (Act) and 42 U.S.C. § 1983.

Upon Appellees' motions, the trial court dismissed Cooper's petition for failure to state a cause of action "for the reasons set forth in (Appellees') briefs." Cooper appeals to this Court. Holding her petition does state a cause of action against Millwood, we reverse in part and remand for further proceedings.

Cooper's petition alleges claims against Millwood for vicarious liability for the acts of and negligent supervision of its employee Neal and also alleges claims under 42 U.S.C. § 1983. Cooper also asserts claims against Neal individually for his negligence, if his acts are determined to be outside the scope of his employment.

The Oklahoma Pleading Code does not require a plaintiff to set out in detail the facts upon which the claims are based. It merely requires a short and plain statement of the claim showing the pleader is entitled to relief. On appellate review, the allegations in the petition are taken as true, and this Court will reverse the dismissal order if assumed facts establish a prima facie case. A petition should not be dismissed for failure to state a cause of action unless it appears beyond a doubt that the appellant can prove no set of facts to support her claims. Bettis v. Brown, 819 P.2d 1381 (Okla.App.1991).

In its brief in support of its motion to dismiss, Millwood claims it is exempt under several subsections of § 155 of the Act. However, we can not say any of the § 155 exemptions applies to Cooper's claims as a matter of law. Courts do not read immunity into the exemption provisions if they are silent, doubtful or ambiguous as applied to any particular circumstances. Gunn v. Consolidated Rural Water & Sewer, 839 P.2d 1345 (Okla.1992). The trial court's dismissal can not be upheld on the grounds that Millwood is exempt from suit under § 155.

Millwood also argued in support of its motion to dismiss that it had no legal duty to a student to prevent injury from another student while the student is a passenger on a school bus. There is no question a school district has a duty to provide safe school bus transportation to and from school. 70 O.S.1991 § 9-101 authorizes school districts to provide transportation for children who live beyond a specified distance from school. Though this is not a mandatory duty, once the responsibility has been assumed by a school district it carries with it a duty to exercise reasonable judgment in providing such transportation. Brooks v. Woods, 640 P.2d 1000 (Okla.App.1981). In the Brooks decision, the Court of Appeals reversed a judgment of the trial court dismissing the plaintiff's petition. It held the specific allegation in the petition of the school district's duty to provide a reasonably safe bus stop where children may wait for the bus stated a cause of action.¹ As in Brooks, we hold a school district's legal duty to exercise reasonable care extends to any activity of school bus transportation which lies outside the control of the parents.²

Beyond this basic duty is the question of the standard of duty to be applied. Generally the question of the existence of a duty in a negligence case is one of law. Stokes v. Tulsa Public Schools, 875 P.2d 445 (Okla.App.1994). However, if the standard of duty is not fixed, but is variable and shifts with the circumstances of the case, the matter cannot be determined as a matter of law but must be left for the jury to determine. Lee v. Darden, 421 P.2d 845 (Okla.1966). In Lee, Plaintiff alleged she was a paying passenger on a bus owned by the corporate defendant. She claimed upon arrival at her destination the bus was parked in a negligent manner leaving two feet between the bus and the loading ramp. In disembarking she fell, sustaining several injuries. Defendants argued that although they were bound to exercise the highest degree of care, they were not insurers of plaintiff's safety. The Supreme Court held that "whether a duty evolved from the circumstances shown to assist plaintiff in alighting from the bus, and whether defendant fulfilled such duty, presented questions determinable by the jury and not matters of law for the trial court."³

The degree of care required of a school district and a school bus driver to prevent injury to a student from another student while riding a school bus is a question of first impression in Oklahoma. In Jackson v. Hankinson, 94 N.J.Super. 505, 229 A.2d 267 (1967), the New Jersey Court considered an action for damages for the loss of sight of an eye sustained by a student plaintiff when he was struck by a pellet propelled at him by a fellow pupil on a school bus. That Court held a school bus driver is under a duty to exercise such care as a reasonable person of ordinary prudence would exercise, but the amount of care under that standard might be higher than ordinary if the particular circumstances presented a special hazard. "Whether the defendants conduct displayed the amount of care called for in the special circumstances was for the jury's resolution under the standard of care given it by the judge." Jackson v. Hankinson, at p. 513, 229 A.2d 267.⁴

School bus drivers are required to transport children safely between the school and home and it is a necessary corollary to this duty that they be accorded the concomitant authority to maintain safety on the school bus. The degree of care imposed on school bus drivers, and their authority to maintain safety on the bus, however, is for obvious reasons to be consistent with the practical operation of the bus. Lockett v. Board of Education for School District No. 189, 198 Ill.App.3d 252, 144 Ill.Dec. 536, 555 N.E.2d 1055 (1990).

We recognize a school district may not be held strictly liable for injuries to children riding a school bus. We also recognize a school bus driver's primary attention must be devoted to safe operation of the bus. In operating and driving the bus, the driver must be held to a higher degree of care than to preventing injury to the passengers from other passengers. As in Jackson v. Hankinson, it seems to us that the rule of care such as a reasonable person of ordinary prudence would exercise under the circumstances is equal to the demands of justice in a school bus case.

Whether Millwood breached its duty of ordinary care depends on the foreseeability of the type of injury complained of in this action. When a special relationship between the parties exists and when the occurrence of harm or damage to one party is foreseeable, a legal duty to control the actions of third persons will be found. Wofford v. Eastern State Hospital, 795 P.2d 516, 519 (Okla.1990). Other Courts have imposed liability on a school when foreseeable acts of third parties cause harm to students in the school's care. See, Kansas State Bank and Trust Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991).

Wofford holds it is a question for the Court whether a defendant stands in a special relationship to plaintiff such that the law will impose upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. In our view the relationship between a school bus driver and the student passengers is a special relationship under Oklahoma law. The students are effectively constrained while on the bus. Under these circumstances there is no way a student being attacked could escape the attack. Depending on the circumstances, where rowdy conditions are present on a school bus it could be foreseeable that one student might injure another.

In her brief, Cooper points out that discovery will reveal the altercation between Levi and Darshaun began as the two boys were boarding the bus and escalated throughout the route. It is foreseeable that uncontrolled or undisciplined children could easily injure each other. It is not necessary that Millwood foresee with precision the injury which resulted from Neal's act, or the concurrent cause of Cooper's injury. Lockett v. Board of Education for School District No. 189, supra. Whether Darshaun's injuries were...