Hackler By and Through Hackler v. Unified School Dist. No. 500, of Kansas City, 63136

Decision Date14 July 1989
Docket NumberNo. 63136,63136
Citation777 P.2d 839,245 Kan. 295
Parties, 55 Ed. Law Rep. 311 Stephen W. HACKLER, a Minor, By and Through His Natural Father and Next Friend, Raymond M. HACKLER, Appellant, v. UNIFIED SCHOOL DISTRICT NO. 500, OF KANSAS CITY, Kansas, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. Actionable negligence must be based on a breach of duty. Existence of duty is a question of law. Following Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).

2. A school district which operates school buses has no duty to assign students to particular buses, to unload them only on the side of the street where their homes are located, or to require students to cross the street in front of the bus when unaware that the student needs to cross the street to go home.

Michael E. Callen, of Callen, Sexton & Shelor, Kansas City, argued the cause, and was on the brief, for appellant.

Douglas C. McKenna, of Watson, Ess, Marshall & Enggas, Olathe, argued the cause, and Steven B. Moore, was with him on the brief, for appellee.

MILLER, Chief Justice:

This is a personal injury action for damages brought by the plaintiff, Stephen W. Hackler, a minor, against the defendant, Unified School District No. 500, Kansas City, Kansas. The trial court sustained defendant's motion for summary judgment, and plaintiff appeals.

The issues raised in this appeal may be concisely stated as follows: Did U.S.D. No. 500 breach any duty it owed to the plaintiff? If so, is the District exempt under the discretionary function exemption of the Kansas Tort Claims Act, K.S.A.1988 Supp. 75-6104(e)? Were any acts or omissions of the District the proximate cause of plaintiff's injuries and damages?

The facts, for the most part, are undisputed. During the 1985-86 school year, Stephen Hackler, then nine years of age, attended Welborn Elementary School in Kansas City, Kansas. On April 15, 1986, as he had done all year, Stephen rode the school bus home from school and got off at a bus stop on the south side of Leavenworth Road, directly across the street from his home. His home was on the north side of Leavenworth Road. Stephen did not attempt to cross Leavenworth Road in front of the bus; instead, he walked along the south side of the road, picking flowers for his grandmother. Quite a while later, and after the bus had left the area and was out of sight, plaintiff attempted to cross Leavenworth Road about a block from his home and was struck by a car driven by Amos Coleman.

Leavenworth Road is a busy thoroughfare. There were school bus stops on each side of the street. The bus on which plaintiff was riding stops on the south side of the street. Another bus stops on the north side of the street. Before the school year started, a letter was sent to all parents, enclosing a bus schedule and asking the parents to select the bus stop nearest their home on their side of the street. From time to time during the school year, a reminder was included in the weekly bulletins concerning the hazardous nature of Leavenworth Road. In his deposition, plaintiff said that his father refused him permission to ride the bus that would have deposited him on the north side of Leavenworth Road. Apparently there are no sidewalks on the north side of Leavenworth Road, and the bus stop on that side of the street was about a block away from plaintiff's home. Plaintiff's father stated in his deposition that it was his usual practice to read the bulletins from the school, but he did not recall seeing a bus schedule or any statements with regard to traffic on Leavenworth Road, and he did not know that a bus stopped on the north side of Leavenworth Road.

The driver of the school bus, Jean Braddy, testified that she was told not to allow students to cross Leavenworth Road. Had she known that Stephen Hackler lived on the north side of Leavenworth Road, she would have reported to her supervisor that she had a child crossing Leavenworth Road who needed to change buses. To her knowledge, none of the students who rode with her crossed Leavenworth Road. She dealt not with a single load of children from a single school; she picked up students at several schools, both elementary and high schools, at different times, and transported them. She did not know where Stephen Hackler lived.

We turn to the first and controlling issue: Did the District breach any duty which it owed to Stephen Hackler? Plaintiff claims that the District owed him the following duties:

1. To instruct him to cross the street in front of the school bus;

2. to unload him on that side of the street on which he lived;

3. to require him to cross the street in front of the school bus; and

4. to prohibit him from being unloaded at a bus stop on the side of Leavenworth Road opposite that on which he lived.

The trial court found that the District did not owe any duty to the plaintiff which was breached. As we said in Meyers v. Grubaugh, 242 Kan. 716, 724, 750 P.2d 1031 (1988): "Actionable negligence must be based on a breach of duty. Existence of duty is a question of law. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983)." It was thus the obligation of the district court in the first instance, and this court on appeal, to determine whether a duty existed. Without a duty, there could be no breach which would support plaintiff's claim.

Plaintiff concedes that a school district has discretion to determine whether to provide school bus transportation. K.S.A. 72-8302. Plaintiff argues, however, that once the district has undertaken the duty to provide transportation, its school buses must be operated in accordance with the uniform act regarding traffic on the highways and regulations adopted by the secretary of transportation. K.S.A. 72-8308. The uniform act regulating traffic mandates that the secretary of transportation adopt rules and regulations to govern the design and operation of school buses. K.S.A. 8-2009. Pursuant to that statute, the secretary has provided for a transportation supervisor for each school district, K.A.R. 36-13-31, and has imposed upon the supervisor various duties. Plaintiff points out the following provisions of K.A.R. 36-13-31 which he contends are important in the context of this litigation. They are:

"The duties of the transportation supervisor shall include the following:

....

"(3) School bus routes. (A) the transportation supervisor shall carefully plan and study all school bus routes with particular consideration given to hazards encountered on each route. Hazards shall be avoided whenever possible.

....

"(4) School bus route stops.

"(A) The transportation supervisor shall establish all regular school bus route stops for the loading or unloading of students.

"(B) Stops shall be reviewed at least annually for safety hazards.

....

"(5) Loading and unloading assistance. The transportation supervisor shall be responsible for providing supervision of the loading and unloading of school bus...

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    ...involve the failure of a school district to follow established procedures. U.S.D. relies on our recent decision in Hackler v. U.S.D. No. 500, 245 Kan. 295, 777 P.2d 839 (1989). Hackler involved a personal injury claim by a minor for injuries sustained when crossing the street from his home.......
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