Sometimes the simplest factual scenarios have the most complex legal issues. Businesses and government agencies facing suit will do anything to avoid liability. Recently, our firm won an important victory against a bus driver for the School Board of Miami-Dade, which will allow our client to have her case heard in court.
Child Injured Trying to Reach the Bus
Our client was an 18-year-old girl who was hit by an oncoming car, as she and other children were crossing the street to reach the school bus early in the morning. The bus was picking her up from the east side of the road, which necessitated the children crossing the road from the west, to reach the bus.
In deposition, the bus driver testified that he told our client and the other kids that if they were not already waiting on the east side of the road by the time the bus arrived, that the bus would leave them, and that the bus would not wait for them to cross if they had not done so by the time the bus arrived.
This necessarily meant that the children had to cross the street before the bus even arrived—and also meant that the children would not get the protections of the stop sign and warning lights that stationary buses put up, to warn and stop oncoming traffic. Basically, the driver left the kids on their own to navigate traffic before the bus arrived.
Actions Were Against Procedure
School board officials testified that contrary to the driver’s instructions, proper procedure was for kids to wait on the west side of the road for the bust to arrive and stop and put up its stop sign, and then cross the road. Thus, the school board officially confirmed that the bus driver’s instructions were contrary to policy.
On behalf of our client, we sued the Miami Dade School board, and the driver, alleging that it was negligent of the bus driver to inform our client to cross the street before the bus arrived.
Sovereign Immunity Issues
The school board raised a defense of sovereign immunity. Sovereign immunity is an immunity from lawsuits given to government agents, officials, and employees in certain situations. One form of immunity is that individual employees of government agencies can not be sued in their individual capacity. In other words, here, the law appeared to say that we could not sue the driver, only the school board.
However, we argued to the Court that the sovereign immunity statute contains an exception for acts that are willful, conducted outside the course and scope of employment, or in wanton disregard for safety or property. By showing these elements, an employee of a state agency can be sued.
The Court agreed that the bus driver’s actions fell into these exceptions. Through depositions and discovery, we were able to point out that the bus driver had actually told the children that they were required to cross the street before the bus arrived.
A Field Operator for the school board had even testified that there would be no reason to tell a student this, and that had she known, she would have corrected it. She also testified that she could not think of any action that would be more damaging to children.
Undertaker Doctrine Applied
We also argued that liability should exist against the driver because of the undertaker doctrine. Normally, not everybody has a duty of care towards every person. But that can change if you undertake a duty. Once you undertake a duty, you have an obligation to discharge that duty safely, competently, and reasonably.
For example, if you park on my neighbor’s lawn and fall on her garden hose, you can not sue me because I owe you no duty while you are on my neighbor’s lawn. But if I tell you to park there and tell you it is safe, then I may owe you a duty because I have undertaken the obligation to look after you.
Voluntarily undertaking obligations that someone normally would not have creates the obligation of due care. Here, the Court agreed with us that the bus driver undertook a duty that he and the school board would not ordinarily have.
Normally, a school board has no obligation to safeguard students waiting at a bus stop. If a child falls, or is attacked, or suffers some injury three minutes before the bus is even there, the school is not liable (assuming the bus stop itself is not on school board property). The school board’s liability generally starts when they get on the bus.
The school board here attempted to argue that our client was hit by an oncoming car on a public street before the bus was even there, and thus, they and the driver could not be liable. However, the Court, agreeing with us that the undertaker doctrine applied, found that by affirmatively instructing the kids to cross the street before the bus arrived, the bus driver did undertake control over or direction over the children. If the bus driver assumed the duties to tell the kids when and where to wait, all against school board policy, the driver had to assume that duty reasonably and safely.
Here, telling kids to rush across a street before the bus was there to alert and stop oncoming traffic was not reasonable. Thus, based on the driver’s voluntary undertakings, the driver could be liable for negligence, even though our client was not yet on the bus.
This case is continuing against the bus driver. But for now, our client’s case will be allowed to be heard, and she may be able to obtain reparation for her injuries, having overcome difficult sovereign immunity and zone of duty legal issues.
If you are injured, make sure your attorneys are ready and can handle difficult fights and tough court hearings. If you are in a car accident or injured while at school, contact Brill & Rinaldi today about a free consultation to discuss your case.