DISTRICTS - SCHOOLS - LIABILITY FOR INJURY TO STUDENT TRANSPORTED TO OR FROM SCHOOL BY PARENT.
When a student enrolled in a public school is being transported to and/or from school at the commencement or end of the school day by his parent, or some other person at the direction of the parent (e.g., either because the particular school district does not provide transportation or because the parent prefers to transport the child himself) neither the school district nor its employees can be regarded as having assumed and exercised control over the transportation so as to incur any liability in case of injury to the student.
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June 24, 1968
Honorable Martin J. Durkan
State Senator, 47th District
908 American Building
Cite as: AGO 1968 No. 2
We are writing in response to your request for an opinion of this office on a question which we paraphrase as follows:
When a student enrolled in a public school is being transported to and/or from school at the commencement or end of the school day by his parent, or some other person at the direction of the parent (e.g., either because the particular school district does not provide transportation or because the parent prefers to transport the child himself) does the school district or its employee(s) incur any liability in the case of injury to the student?
We answer your question in the negative for the reasons set forth in our analysis.
While the Washington legislature, by its recent enactment of chapter 164, Laws of 1967,1/ has fully abrogated the common law [[Orig. Op. Page 2]] defense of sovereign immunity with respect to all political subdivisions, including school districts, this legislation is of considerably less practical significance in the case of such districts than it is with respect to certain other classes of political subdivisions. The Washington legislature, by statute, has historically regulated the legal actions which may be maintained against school districts; consequently, for many years prior to the enactment of this 1967 act, school districts had already been subject to liability for all but a limited class of tortious injuries.
Initially, the territorial legislature abrogated the common-law rule of immunity and authorized the maintenance of legal actions against school districts for any unlawful act or omission of their agents or employees.2/ In 1917, the school districts' partial immunity from such liability was restored only in those cases where a school child's injury was related "to any park, playground or field house, athletic apparatus or appliance, or manual training equipment, . . . owned, operated or maintained by the school district."3/ In other cases including cases involving the transportation of students to or from school school districts remained liable for damages arising out of their tortious conduct (including that of their officers or employees in the course of duty) to the same extent as a private person or corporation.4/
[[Orig. Op. Page 3]]
However, this does not mean that any time a child enrolled in a public school is injured while on the way to or from school, the school district will incur tort liability. Just as in the case of a private person or corporation, all the essential elements of actionable negligence must be present in order to impose liability. Briscoe v. School Dist. No. 123, 32 Wn.2d 353, 201 P.2d 697 (1949); 78 C.J.S. § 320, p. 1327. Included among such elements is the breach of a duty recognized by law. Thus, the issue which will be determinative of the question you have asked relates to the extent of duty imposed by law upon a school district or its employees regarding the transportation of students enrolled in the district's schools.
The first statute to be noted in connection with this issue is RCW 28.67.110, which provides, in pertinent part, as follows:
"Every teacher shall have the power to hold every pupil to a strict accountabilityin school for any disorderly conduct on the way to and from school, or on the grounds of the school . . ." (Emphasis supplied.)
Lay individuals have often read this statute to mean that a teacher is responsible for the pupils while they are en route to and from school. Such is not the case. InBriscoe v. School Dist. No. 123, supra, our court stated that the statute gives ". . . teachers in public schools . . . jurisdiction over the conduct of their pupils . . ." As spelled out in the statute, the means of exercising the jurisdiction is to hold the pupil to a strict accountability in school. It does not follow that the teachers have a duty to supervise and protect the pupil [[Orig. Op. Page 4]] when he is en route to or from school.5/
The statutory provision which relates to the transportation of pupils to and from school is RCW 28.58.100, which provides in material part as follows:
"Every board of directors, unless otherwise specially provided by law, shall:
". . .
"(11) Provide and pay for transportation of children to and from school whether such children live within or without the district when in its judgment the best interests of the district will be subserved thereby,but the board is not compelled to transport any pupil living within two miles of the schoolhouse.
"When children are transported from one school district to another the board of directors of the respective districts may enter into a written contract providing for a division of the cost of such transportation between the districts.
". . .
"Whenever any school children are transported by the school district in its own motor vehicles and by its own employees, the board may provide insurance to protect the district against loss by reason of theft, fire or property damage to the motor vehicle, andto protect the district against loss by reason of liability of the district to persons from the operation of such [[Orig. Op. Page 5]]motor vehicle.
"If the transportation of children is arranged for by contract of the district with some person, the board may require such contractor to procure liability, property, collision or other insurance for the motor vehicle used in such transportation;" (Emphasis supplied.)
As was stated in a prior opinion of this office, AGO 59-60 No. 113, this statute makes it
". . . clear that the legislature has expressly authorized the board of directors of a school district to 'provide and pay for transportation of childrento and from school' and to provide insurance 'to protect the district against loss by reason of liability of the district to persons from the operation of such motor vehicle.'"6/
If a school district is "providing" transportation to its pupils under this statute, and if a child while thus being transported suffers an injury caused by tortious conduct on the part of the district and/or its officers or employees, then it may be expected that liability will follow. See,Phillips v. Hardgrove, 161 Wash. 121, 296 Pac. 559 (1931), andLeach v. Sch. Dist. No. 322, 197 Wash. 384, 85 P.2d 666 (1938).7/ See, also, AGO 59-60 No. 113, supra, discussing the limitations posed by this statute on the use of school buses as related to the potential personal tort liability of school district directors.
However, if the pupil is not riding on transportation "provided" by the district at the time of his injury, this statute does not apply.
[[Orig. Op. Page 6]]
Research has revealed no further relevant statutory provision which might be said to establish a duty on the part of a school district or its employees to safeguard students en route to or from school. Accordingly, whether such a duty exists under the circumstances you describe must be gleaned from the decisional law of this and comparable jurisdictions.8/
It is axiomatic that a pupil is in the custody of the school district and its teachers while attending classes during the regular school day. A long line of Washington cases makes it clear that at such times the teacher stands inlocus parentis to the pupil and must exercise reasonable care to safeguard the pupil. This principle and its rationale were set out in Briscoe v. Sch. Dist. No. 123, supra, at page 362, as follows:
". . . when a pupil attends a public school, he or she is subject to the rules and discipline of the school, and the protective custody of the teachers is substituted for that of the parent.
"As a correlative of this right . . . a duty is imposed by law on the school district to take certain precautions to protect the pupils in its custody from dangers reasonably to be anticipated, . . ." (Emphasis supplied.)
The general duty thus imposed by law upon the school district and its teachers during school hours is to properly supervise the pupils attending school in the district. Rodriguez v. Seattle Sch. Dist., 66 Wn.2d 51, 401 P.2d 326 (1965); Tardiff v. Shoreline Sch. Dist., 68 Wn.2d 164, 411 P.2d 889 (1966). While the pupil is attending school the duty is mandatory. McLeod v. Grant County School Dist., 42 Wn.2d 316, 255 P.2d 360 (1953).
Washington court decisions further make it clear that the duty to supervise, and potential liability for breach thereof, may exist at times other than during regularly scheduled school hours.
[[Orig. Op. Page 7]]
Thus, it has been held that a school district may be liable for failure to supervise pupils playing on the school grounds prior to commencement of morning classes. (Rice v. School District 302, Pierce Co., 140 Wash. 189, 248 Pac. 388 (1926).) Also, a school district has been held liable for failure to supervise a "key club" initiation held at a private home during the evening. Chappel v. Franklin Pierce School District No. 402, 71 W.D.2d 16 [[71 Wn.2nd 17]](1967).
However, unlike the situation during regular school hours, a school district and its teachers are not automatically charged with custodial responsibility for pupils in cases involving activities occurring outside school hours. In the absence of a statutory duty, the how, why, when and where of the transfer of protective custody from the parent to the school district must be shown in each case. The facts and circumstances of the particular case must be such as to extend the duty of the district with respect to the safety of the child beyond the normal school district-student relationship. See,Coates v. Tacoma Sch. Dist., 55 Wn.2d 392, 347 P.2d 1093 (1960).
In those cases such as the Rice and Chappel cases, supra, where it has been held that the school district is liable for injuries occurring outside school hours, the facts have shown that the activity involved in the injury was authorized and generally supervised by school authorities, and further, that it was related to an educational purpose over which the school could assume and exercise authority. Thus, the rule to be derived from such cases is simply that a school district becomes responsible for the safety of a pupil engaged in such activity outside of school hours only if the district has exercised and assumed control and supervision over an activity for which it has authority to do so.
Now, as applied to the transportation of pupils: There is no doubt but that the transportation of pupils to and/or from school is an authorized function of the school district. See, RCW 28.58.100 (11),supra.
If a district is "providing" transportation to its pupils under this statute, as previously indicated, it then assumes custodial responsibility for the pupils while they are en route to or from school by means of this transportation. Otherwise, no such responsibility and resultant duty exist, for the rule to be derived from the cases cited herein is that a school district has no duty and therefore no potential liability with regard to supervision and protection of pupils en route to and from school unless it has exercised and assumed supervision and control, consistent with its authority, over the pupils [[Orig. Op. Page 8]] during such time. Or, in the words of the California court in Kerwin v. County of San Mateo, supra, at p. 307:
"A school district is under no duty to supervise, or provide for the protection of its pupils, on their way home, unless it has undertaken to provide transportation for them, . . ."
See, also,Wright v. Arcade School Dist., 230 C.A.2d 272 [[230 Cal.App. 2d 272]], 40 Cal.Rptr. 812 (1964); and Raymond v. Paradise Unified School Dist., 218 C.A.2d 1 [[218 Cal.App.2d 1]], 31 Cal.Rptr. 847 (1963); Edmondson v. Board of Trustees for the Moose Jaw School District, 13 Sask. L.R. 511 [[13 Sask. L. Rev. 511]], 55 D.L.R. 563 (1920).9/
The point at which a school district, for purposes of imposing liability, may be deemed to have assumed control and supervision over the transportation of pupils is not, however, always subject to clear delineation. In an opinion dated May 15, 1936, this office addressed itself to this issue to some extent when answering the following question:
"2. When the board of directors of a school district grants an allowance to parents at a distance from school to keep their children in school by transportation, boarding or otherwise, without specifying the method, does the district assume any financial liability in case of accident to the children while being transported to or from school?"
We answered as follows:
". . . The liability of a school district, in case of accident to the children, rests upon negligence, not upon contract. Where nothing is said, therefore, as to the purpose of an allowance as to whether it shall be by transportation, boarding or otherwise, we know of no principle of law which would impose a liability upon the district. When the district assumes the transportation of the children to [[Orig. Op. Page 9]] school in its own bus and with its own driver it becomes responsible for acts of negligence, but when it neither selects nor approves the driver and where transportation may or may not be furnished, it is difficult to see upon what theory liability can be imposed upon the district. In the first place it is quite open to question whether the arrangement must not be the arrangement of the transportation commission. If the district were to select an incompetent driver it might be responsible on that ground, but your question, as we see it, would exclude that ground of liability for the district has nothing whatever to do with the selection of a driver, or in fact whether there is any driver.
"The direct answer to your question, therefore, is that in our opinionunder the facts disclosed the district would not be liable in case of accident to the children while being transported to or from school in pursuance of such an arrangement." (Emphasis supplied.)
Thus again, as with the case of "school" activities conducted outside of regular school hours, each situation involving the transportation of pupils to and/or from school by a mode other than that provided by the school must be viewed in light of its own facts and circumstances to determine whether or not the school district or its employee(s) has a duty to supervise and protect the pupils involved.10/ However, applying this approach and the general analysis and underlying principles which we have [[Orig. Op. Page 10]] attempted to delineate in this opinion we believe that we may at this point provide you with a negative answer to the specific, factually based, question which you have asked. It is our opinion that when a public school student is being transported to and/or from school at the commencement or end of the school day by his parent or some other person at the direction of the parent, under the circumstances described in your letter, neither the school district nor its employees can be regarded as having assumed and exercised control over the transportation of the pupils involved so as to incur any liability in the case of injury to the student.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
ROBERT E. PATTERSON
Assistant Attorney General
*** FOOTNOTES ***
1/The pertinent language of § 1, chapter 164, Laws of 1967, reads as follows:
"All political subdivisions, municipal corporations, and quasi municipal corporations of the state, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their officers, agents or employees to the same extent as if they were a private person or corporation: . . ."
2/See, §§ 601 and 602, p. 154, Washington Territorial Laws of 1869 (now codified as RCW 4.08.110 and 4.08.120).
3/Section 1, chapter 92, Laws of 1917.
4/As for school district employees, they have never fallen within the protective coverage of a school district's immunity. As private citizens they have always been potentially liable for their tortious misconduct whether or not it occurred within the scope of their employment. See, for a general discussion, Dugan, Teachers' Tort Liability, 11 Clev. Mar. L. Rev. 512 (1962); also, Seitz, Legal Responsibility under Tort Law of School Personnel and School Districts as Regards Negligent Conduct Toward Pupils, 15 Hastings L. J. 495 [[15 Hast. L. J.]](1963-64).
5/Significantly, a very similar California statute was involved in Kerwin v. County of San Mateo, 176 C.A.2d 304 [[176 Cal.App.2d 304]]; 1 Cal.Rptr. 437 (1959). The court held that this statute
". . . does not impose a duty on the teacher or the district to supervise the pupils on their way home. The section refers to the behavior of school children and not to their safe conduct to and from school."
6/See, also, RCW 28.76.410, which authorizes school districts to procure and pay for various types of insurance, including liability insurance, for their officers and employees.
7/Note that the duty of a common carrier, which requires the highest degree of care, is owed by a school district to its pupils which it is thus transporting.
8/Among the other states which have modified, by statute, the common-law rule of school district immunity, only California and New York have substantially abrogated this immunity and produced a significant amount of decisional law regarding the scope of the district's potential liability.
9/Similarly, an employee of the district has no duty and therefore no potential liability unless he has exercised and assumed supervision and control over the pupils.
10/As a further example of the principle that each case must be viewed in light of its own facts, see, Hanson v. Reedley, Etc. School Dist., 43 C.A.2d 643 [[43 Cal.App.2d 643]], 111 P.2d 415 (1941), wherein a district was held liable when a teacher, knowing a student to be a reckless driver with a defectively equipped car, nonetheless asked the student to transport some other students home, and, in fact, provided gas from the district's gas pumps.