Harrison v. Escambia County School Bd.

• Decision Date: 23 June 1982
• Docket Number: No. UU-294,UU-294
• Citation: 419 So.2d 640
• Parties: 6 Ed. Law Rep. 1193 John Frederick HARRISON, as personal representative of the Estate of Frederick Coley Harrison, deceased, Appellant, v. ESCAMBIA COUNTY SCHOOL BOARD, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 640

419 So.2d 640

6 Ed. Law Rep. 1193

John Frederick HARRISON, as personal representative of the Estate of Frederick Coley Harrison, deceased, Appellant, v. ESCAMBIA COUNTY SCHOOL BOARD, a political subdivision of the State of Florida, Appellee.

No. UU-294.

District Court of Appeal of Florida,

First District.

June 23, 1982.

Rehearing Denied Aug. 23, 1982.

William C. Owen, of McClure, Wigginton, Owen & Maynard, Tallahassee, for appellant.

Robert W. Kievit, Pensacola, for appellee.

LARRY G. SMITH, Judge.

The issue in this case is whether sovereign immunity bars appellant's negligence action against the School Board. The trial judge ruled that it did, and dismissed appellant's complaint seeking damages for the death of his eleven-year old child who was struck by an automobile while enroute to catch a school bus at an allegedly negligently located school bus stop. Appellant maintains that this ruling was in error under the holding of Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), and related cases, because the actions of the School Board, in negligently selecting "the most reasonably safe locations available" for school bus stops (and failure to provide adequate warning signs for motorists) as directed by Section 234.112, Florida Statutes (1977), ¹ constituted an "operational," not "planning" function, and its actions were therefore not protected under the " 'discretionary' governmental function" exception to the sovereign immunity waiver statute, Section 768.28, Florida Statutes (1977), as announced by the court in Commercial Carrier. Our review leads us to the conclusion that the trial judge ruled correctly, and we affirm.

According to the complaint, the deceased child was struck and killed by an automobile ² as the child was proceeding along the East side of Road C-95A (Old Palafox Highway) in a northerly direction in the company of other children enroute to a school bus stop located at the intersection of C-95A and Candy Lane Road. ³ The complaint alleged that the school board was under a duty, in connection with the operation of a school bus transportation system, to designate and operate safe school bus routes and bus stops, and that the board's duty included, specifically, the requirement under Section 234.112, Florida Statutes (1977), that it establish school bus stops as necessary "at the most reasonably safe locations available." The complaint further alleged that unusual traffic hazards existed at the bus stop location, and that by the board's failure to place a sign warning motorists of the bus stop location, it further violated the provisions of Section 234.112. ⁴ It is further alleged that the board knew or should have known that its designated school bus stop at that intersection was attended by unusual traffic hazards which created a dangerous condition for children approaching or congregating in its vicinity while waiting for a school bus, and that the board was negligent in failing to take appropriate measures to warn motorists of the bus stop location so as to mitigate such dangerous condition, or in the alternative, to arrange a safer location for the school bus stop. Paragraph 9 of the count against the school board sets forth the facts under which the accident occurred as follows:

9. At about 8:30 a. m. on November 10, 1977, Frederick Coley Harrison, together with two other children, who were students in the Escambia County School system, were enroute to the school bus stop located, maintained and operated by the defendant School Board at the intersection of Candy Lane Road and C-95A, Escambia County, Florida, for the purpose of boarding the school bus designated for their respective schools. In order to reach said school bus location, plaintiff's decedent found it necessary to travel along the perimeter of C-95A in a northerly direction. At the aforementioned time and place, Frederick Coley Harrison was struck and killed by an automobile operated along C-95A in a northerly direction. The death of Frederick Coley Harrison, deceased, was directly and proximately caused by the negligence of defendant School Board as herein alleged.

The gravamen of the complaint is that the county negligently decided to locate the school bus stop on one street rather than another, and negligently failed to post warning signs. We must determine, under Commercial Carrier, whether this is the kind of governmental action that is "subject to scrutiny by judge or jury" as to the wisdom of the performance (Commercial Carrier, 371 So.2d at 1022), and which will subject the school board to tort liability if "careless conduct contributed to the governmental decision," Commercial Carrier, at page 1021, quoting from Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968).

In compliance with Commercial Carrier's suggestion we turn first to the four-part preliminary test for identifying "discretionary" governmental functions stated in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440, (1965). ⁵ First, does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? We answer this question in the affirmative. Section 234.01, Florida Statutes, makes it clear that transportation of school children furthers the basic governmental policy, program, or objective of making available to all school children "adequate educational facilities and opportunities which otherwise would not be available...."

Secondly, is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? This question may be answered in the negative, in that the "realization or accomplishment" of the purposes of the transportation program itself is not dependent upon the precise location of any particular school bus stop, nor the exact placement of warning signs for motorists. Cf. Bellavance v. State, supra, footnote 5. Of course, when viewed as a part of the overall transportation plan, the location of school bus stops is an essential part of the program.

Third, does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? We answer this question in the affirmative. Locating school bus stops would normally entail an evaluation of and the making of judgmental decisions regarding innumerable factors, such as the number of stops, their relation to other scheduled bus stops, the number of pupils to be served at each location, the convenience to the children of the locations selected, the extent to which the particular bus stop locations might affect desirable bus routing, traffic conditions, and the availability and suitability of alternate locations. Appellant concedes the affirmative answer to this question, to a limited extent. Appellant agrees that at least the initial decision as to whether a school bus stop is necessary for a particular area can logically be characterized as a policy or planning level decision. Appellant agrees that in making such a decision the school board presumably would have to balance the feasibility of such locations, and its capacity to provide the required service, against the demand for the bus service. Appellant urges, however, that once the board affirmatively decides that a bus stop is necessary, the board is no longer free, in the exercise of unfettered discretion, to place the bus stop at any particular location desired. Appellant insists that the statute prescribing the placing of bus stops at "the most reasonably safe locations available" preempts any further action by the board rising to the level of a policy, planning or judgmental decision. Although appellant does not undertake an analysis based upon these four questions, the main thrust of appellant's argument focuses on issues raised by this third question, and we therefore will address it more fully in the discussion of the legal authorities relied upon by the parties.

Fourth, does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? The answer to this question is unequivocally in the affirmative.

According to the Evangelical United Brethren Church case, if one or more of the stated questions call for or suggest a negative answer, then further inquiry may well become necessary, depending upon the facts and circumstances involved. Since under our analysis question two may receive a negative answer, and in view of appellant's emphasis on the third question, we acknowledge the need for further inquiry. The analysis in Johnson v. State, supra, adopted by the court in Commercial Carrier, distinguishes between the "planning" and "operational" levels of decision-making. From Johnson we learn that that court's analysis is predicated primarily upon "policy considerations" (see Commercial Carrier, supra, 371 So.2d at 1021); that it may not be possible to set forth a definitive rule which will determine in every instance whether a governmental agency is liable for discretionary acts of its officials; but nevertheless, there are various factors which furnish a means of deciding whether the agency in a particular case "should have immunity," such as:

The importance to the public of the function involved, the extent to which government liability might impair free exercise of the function, and the availability to individuals affected of remedies other than tort suits for damages.

Lipman v. Brisbane Elementary School District, 55 Cal.2d 224, 11 Cal.Rptr. 97, 99, 359 P.2d 465, at 467, quoted in Johnson v. State, 447 P.2d at 357. Johnson also indicates to us that our "further inquiry" should concentrate "on the reasons for granting immunity to the governmental...