Stokes By and Through Stokes v. Tulsa Public School, 81456

• Decision Date: 22 March 1994
• Docket Number: No. 3,No. 81456,81456,3
• Citation: 875 P.2d 445
• Parties: 1994 OK CIV APP 48, 91 Ed. Law Rep. 1148 Tamitra STOKES, a minor, By and Through her mother and next friend, Carrie STOKES, and Carrie Stokes, individually, Appellants, v. TULSA PUBLIC SCHOOLS, an Oklahoma political subdivision, Appellee. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 445

875 P.2d 445

1994 OK CIV APP 48, 91 Ed. Law Rep. 1148

Tamitra STOKES, a minor, By and Through her mother and next friend, Carrie STOKES, and Carrie Stokes individually, Appellants, v. TULSA PUBLIC SCHOOLS, an Oklahoma political subdivision, Appellee.

No. 81456.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma Division No. 3.

March 22, 1994.

Certiorari Denied May 23, 1994.

Appeal from the District Court of Tulsa County; Ronald L. Shaffer, Judge.

AFFIRMED.

Michael James King, M. Jean Holmes, Tulsa, for appellants.

J. Douglas Mann, Jerry A. Richardson, Tulsa, for appellee.

OPINION

HUNTER, Presiding Judge:

The minor Appellant, Tamitra (Tami), enrolled in Key Elementary School in Tulsa, Oklahoma, during her fourth grade year, when Appellants moved to their apartment on the south side of East 71st Street. Tami's usual school bus stop was located across the street from her apartment, on the north side of East 71st. In October of Tami's fifth grade year, she attempted to cross East 71st, then a two lane street, before the arrival of her school bus. She was hit and injured by a motorist. Her mother had instructed Tami to wait until the bus arrived before crossing the street. There was no crosswalk between Tami's apartment building and the bus stop, nor was there an intersection nearby.

Appellants sued Appellee (School District) on a negligence theory. The pretrial order fixed the legal issues to be resolved as: (1) whether a school district has a legal duty to pick up students on the side of the street on which a student lives; (2) whether Carrie Stokes' claim is barred due to her failure to comply with the dictates of the Oklahoma Governmental Tort Claims Act; and (3) whether the school district was exempt from liability under certain subdivisions of the Governmental Tort Claims Act.

The trial court granted School District's motion for summary judgment finding, as a matter of law, that School District did not violate any legal duty. We agree. The other legal issues raised were not addressed by the trial court because a finding of a duty is prerequisite element of a tort action.

STANDARDS OF REVIEW

The facts as submitted by the parties to the trial court in their motion for and response to summary judgment reveal no substantial controversy as to any material fact. 12 O.S. 1991 Ch. 2, App., Dist.Ct.R. 13(e). The question of existence of a duty, in a negligence cause, is one of law. When there is no substantial controversy as to any material fact and a party is entitled to judgment as a matter of law, the court properly grants summary judgment. Flanders v. Crane Co., 693 P.2d 602, 605 (Okl.1984). The appellate court sits as a court of first instance when facts are presented to the trial court for judgment solely in documentary form. Loffland Bros. Co. v. Overstreet, 758 P.2d 813, 817 (Okl.1988). We analyze the record, may substitute our analysis for that of the trial court, and render the judgment which should have been rendered. Loffland Bros. at 817.

ANALYSIS

No Oklahoma case law has decided the question of whether a school district has a duty to the school bus passengers to board and discharge them on the side of the street where the students live. Appellants cite Brooks v. Woods, 640 P.2d 1000 (Okl.App.1982) in support of their position. The Brooks court, at 1002, held that the 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." Finding that the allegation concerned the school district's duty to provide a reasonably safe bus stop, the Brooks court, at 1002, specifically excluded the child's activities to and from the bus stop. In Brooks, the school child was injured when she was struck by a car while waiting at the bus stop for her bus. That bus stop was adjacent to an uncurbed, five lane main traffic artery.

Appellee relies on cases from sister states in support of its position that it has no duty to have the school bus stop on the side of the street where each child lives. In Hackler v. Unified School Dist. No. 500, 245 Kan. 295, 777 P.2d 839 (1989), the Supreme Court of Kansas held, 777 P.2d at 842-43, that "the law does not require a school district to unload students only on the side of the street on which the student lives, or to prohibit students from being discharged on the side of a street other than the side on which the student lives." In this case, nine-year-old Hackler got off at the stop after school, but did not cross the road to his house. Instead, he stayed on the same side of the road onto which he had disembarked and picked...