Swain v. Cleveland Metro. School Dist.Swain v. Cleveland Metro. School Dist.
JUDGMENT: AFFIRMED
Wayne J. Belock
Deputy Chief Legal Counsel
Cleveland Metropolitan School District
1380 East 6th Street, Room 203
Cleveland, Ohio 44114
Richard Gurbst
William Michael Hanna
Christina Henagen Peer
Squire, Sanders & Dempsey L.L.P.
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114-1304
ATTORNEY FOR APPELLEES
Jeffrey V. Hawkins
One Cascade Plaza
Suite 2210
Akron, Ohio 44308
LARRY A. JONES, J.:
{¶ 1} Defendants-appellants, Cleveland Metropolitan School District, et al. (“District”), appeals the decision of the trial court denying the District’s motion to dismiss. Having reviewed the arguments of the parties and the pertinent law, we hereby affirm the lower court.
STATEMENT OF THE CASE AND FACTS
{¶ 3} According to the facts, the District is a public school system that transports some of its students by District-owned and -operated school buses. Stesia Swain was, at the time of the incident, a five-year-old kindergarten student in the District. Angela Swain is Stesia’s mother. Swain’s complaint asserts that the District is liable for the actions of a bus driver who failed to discover that Stesia had fallen asleep in her seat on the bus on the way home from her first day of school and failed to drop her off at her bus stop.
ASSIGNMENTS OF ERROR
{¶ 4} Appellant assigns one assignment of error on appeal:
{¶ 5} “The trial court erred in dismissing [sic] the school district’s motion to dismiss based on the doctrine of sovereign immunity when the alleged injury to plaintiff did not occur as a result of the operation of a school bus as defined by the Ohio Supreme Court in Doe v. Marlington Local School District Bd. Of Ed. (2009)[,] 121 Ohio St.3d 12.”
{¶ 6} The District argues that its motion to dismiss should have been granted by the trial court. The District bases its argument upon the Ohio Supreme Court’s recent ruling in Doe v. Marlington Local School Dist. Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-3601, 907 N.E.2d 706, arguing that Marlington applies in this case and the exception to sovereign immunity in
{¶ 7} We find the District’s argument to be misplaced. Review of the evidence in the record demonstrates that the lower court did not err in failing to grant the District’s motion to dismiss.
{¶ 8} Appellate review of a ruling on a motion to dismiss for failure to state a claim presents a question of law that the Court of Appeals determines de novo and independently of the trial court’s decision.
{¶ 9} The Political Subdivision Tort Liability Act requires a three-tiered analysis to determine whether a political subdivision should be allocated immunity from civil liability: first, as a general rule, political subdivisions are not liable in damages; second, the court determines whether any of the enumerated exceptions to immunity apply; third, if immunity does not apply, the court determines whether political subdivisions qualify for any of the listed statutory
{¶ 10} If an entity is a political subdivision, the court must then determine whether any of the
{¶ 11} The District argues that Marlington applies; however, Marlington is easily distinguishable from the case at bar. Marlington involved the sexual assault between different students.1 The case at bar involves the negligent operation of a motor vehicle in driving or otherwise causing the vehicle to be
{¶ 12} In contrast to the sexual assault between a special needs student in Marlington, the conduct in the case at bar involves an entirely different situation. The bus driver in the case at bar, while sitting in the driver’s seat and while the engine was running, declined to inspect the bus and then drove the bus away from the proper bus stop.
{¶ 13} The bus driver never bothered to check to see if the kindergarten student was still on the bus. The bus driver, in direct opposition to the parent waiting at the stop and looking for her child, proceeded to drive off and go back to the school bus garage. Meanwhile, the waiting parent became hysterical wondering where her five-year-old daughter was. The bus driver also failed to inspect the bus at the conclusion of her bus route. Thereby leaving the young girl on the bus, alone, so that when she awoke, she was alone in a dark school bus garage on her first day of school.
{¶ 14} In addition to being distinguishable from the facts in Marlington, the case at bar involves different conduct. Specifically, the conduct of the bus driver in the case at bar takes place in relation to her operation of the bus and the student, not the supervision of the conduct of the students on the bus as occurred in the sexual assault in Marlington. Accordingly, Marlington is distinguishable from the case at bar.
{¶ 15} Assuming, arguendo, that Marlington was not distinguishable from the
{¶ 16} In Groves v. Dayton Pub. Schools (1999), 132 Ohio App.3d 566, 569-570, 725 N.E.2d 734, a disabled student sued the school district for injuries she suffered as a result of the bus driver’s alleged negligence in failing to secure her in her wheelchair when assisting her off the bus, resulting in her right hand being wedged in the wheel of her chair. In Groves, the court stated that
“[c]ourts that have had the opportunity to address the meaning of ‘operation of a motor vehicle’ in that context have found that the taking on and letting off of students falls within the meaning of the term. See Baker & Co. v. Lagaly (C.A.10, 1944), 144 F.2d 344, 345 (holding that ‘operation of the bus * * * included the receiving of the children into the bus and their exit from it. * * * Opening the door of the bus and allowing children to alight was an integral part in the operation of the bus) and Nolan v. Bronson (1990), 185 Mich.App. 163, 177, 460 N.W.2d 284, 290, 291 (defining ‘operation of a motor vehicle’ as ‘being used or employed in some specific function or to produce some desired work or effect’ and concluding that discharging of students falls within that definition).”
Groves, 736 – 737.
{¶ 18} As stated, review of the evidence demonstrates that the school bus driver in this case never checked to see if the little girl was still on the bus. The driver, in direct opposition to the parent, drove away from the mother at the bus stop and proceeded to go back to the school bus garage. Moreover, the driver also failed to inspect the bus at the conclusion of her bus route. Review of the evidence in this case also demonstrates that the bus driver was sitting in the driver’s seat, and while the engine was running, then caused the vehicle to be moved.
{¶ 19} Moreover, the record further demonstrates that the bus driver caused the motor vehicle to be moved. Accordingly, we find that the evidence in the
We find no error on the part of the lower court.
Judgment affirmed.
It is ordered that appellees recover of appellant their costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
LARRY A. JONES, JUDGE
SEAN C. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR