D.J., by and through his next friend, R.J. v. First Student, Inc., and Tomika L. Richardson

• Court: Missouri Court of Appeals
• Decided: June 25, 2024
• Docket: ED111487
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION ONE

D.J., BY AND THROUGH ) HIS NEXT FRIEND, ROSE JACKSON, ) ) No. ED111487 Respondent, ) ) vs. ) ) Appeal from the Circuit Court of FIRST STUDENT, INC., ) the City of St. Louis ) Appellant, ) ) Honorable Rex M. Burlison And ) ) TOMIKA L. RICHARDSON, ) Filed: June 25, 2024 ) Defendant. )

Introduction

First Student, Inc. appeals the circuit court’s judgment entered after a jury returned a

verdict against it and in favor of D.J. (“Child”), by and through his next friend, R.J. (“Mother”),

after Child was struck by a passing car after unloading from a school bus operated by Tomika

Richardson (“Richardson”) on behalf of First Student (collectively, “Defendants”). First Student

raises four points on appeal arguing the circuit court erred in overruling its motion for judgment

notwithstanding the verdict (“JNOV”). In Point I, First Student argues it was entitled to JNOV

because it complied with its only legal duty to Child, which was to drop him off at a reasonably safe place, and the McGinnis doctrine precluded any additional liability.1 In Point II, First Student

argues it was entitled to JNOV because the jury was precluded from determining additional,

independent theories of negligence under the McHaffie rule when First Student admitted

Richardson was acting within the course and scope of her employment.2 In Point III, First Student

argues it was entitled to JNOV because the verdict director improperly instructed the jury to

determine purely evidentiary details while omitting the ultimate issue of whether Richardson

dropped off Child at a reasonably safe place. In Point IV, First Student argues it was entitled to

JNOV because the passing car driver’s conduct was an intervening cause breaking the causal

connection between Child’s injuries and First Student’s negligence.

Because First Student’s duty to Child arose from the bus contract, by its own conduct, and

its requirement to exercise due care to avoid foreseeable injury, and because the record supports

breach, causation, and injury, Child made a submissible case establishing negligence as submitted

in Jury Instruction No. 8. Thus, the circuit court did not err in overruling First Student’s JNOV

motion and Point III is denied. Because the passing car driver’s conduct is not an intervening cause

breaking the causal connection between Child’s injuries and First Student’s negligence, the circuit

court did not err in overruling First Student’s JNOV motion. Point IV is denied. Because neither

the McGinnis doctrine nor the McHaffie rule apply under these circumstances, the circuit court did

not err in overruling First Student’s JNOV motion. Points I and II are denied.

The circuit court’s judgment is affirmed.

1 See McGinnis v. Chicago, R.I. & P. Ry. Co., 98 S.W. 590 (Mo. 1906). 2 See McHaffie By & Through McHaffie v. Bunch, 891 S.W.2d 822 (Mo. banc 1995).

2 Factual and Procedural History

First Student Transportation Services

KIPP St. Louis (“KIPP”) operates charter schools in the St. Louis area. KIPP solicited

requests for proposal (“RFP”) and contracted with First Student, which transports approximately

five million students throughout the country each day, to provide school bus transportation for its

students (“bus contract”). The bus contract states KIPP’s RFP, First Student’s proposal, and the

bus contract govern the parties’ relationship. KIPP’s RFP provides, “The safety of our students is

our primary priority,” and directs First Student to adhere to “[a]ll applicable laws, local school

district policies and regulations.”

KIPP’s RFP requires First Student to be “responsible for implementing and administering

a comprehensive safety plan,” including “continuing on-the-road training and classroom training

for all drivers . . . .” First Student’s “Commercial Driver’s License (CDL) Training Program

Participant Study Guide” (“training manual”) discusses “danger zones.” First Student’s training

manual states, “Danger zones are areas outside the bus where children are in the most danger of

being hit, either by another vehicle or their own bus.” The training manual explicitly warns, “the

area to the left of the bus is always considered dangerous because of passing cars.” (Emphasis

added.) The training manual contains a diagram of a school bus with the left side of the bus labeled

“Danger From Passing Cars.” A copy of that diagram, set out below, was in evidence before the

jury.

3 The bus contract states First Student “shall be primarily responsible for planning all routes,

stops and schedules in coordination with, and based upon, [KIPP] specifications.” (Emphasis

added.) First Student must use a software system when creating routes and generating stops. Any

“stop location and/or time changes” must be submitted in writing. First Student must consult with

KIPP “as to stops or portions of routes that [First Student] considers to be a safety concern due to

traffic patterns or configurations.” If First Student believes a “stop or route presents an

unacceptable safety risk to [First Student’s] property or students, [First Student] may reject the

stop or route portion and provide [KIPP] with alternative designations by written notice.” KIPP’s

RFP further requires First Student to provide a “[m]ethodology to insure [sic] drivers have a

working knowledge of the routes and metropolitan St. Louis area” and “ensure that each driver

will have an updated route and/or student listing prior to making any run.” (Emphasis added.)

Child Sustains Injuries

In October 2019, Child was a nine-year-old fourth-grade student attending a KIPP

elementary school. Before the 2019-2020 school year began, Mother contacted First Student to

4 request Child’s school bus stop be moved closer to their residence, which was on Lalite Avenue,

west of Goodfellow Boulevard. First Student referred Mother to KIPP to have the school bus stop

changed. Mother contacted KIPP and received updated school bus stop information

accommodating her request. Child’s designated school bus stop was “GOODFELLOW BLVD &

LALITE AVE (NW CRNR)” indicating the northwest corner of that intersection. Once Child

alighted the school bus, he proceeded west on Lalite to his residence without having to cross

Goodfellow, which was a busier street than Lalite. The updated ten-page computerized route sheet

First Student prepared contained turn-by-turn driving instructions for both the morning and

afternoon runs of Child’s school bus route. For the afternoon run, First Student’s route sheet

directed its school bus drivers when reaching the southeast corner of Goodfellow and Lalite to

make a series of turns so Child could be dropped off at the northwest corner of Goodfellow and

Lalite. Starting at the school bus stop before Child’s at the intersection of Lillian Avenue and

Mimika Avenue, the directions on the route sheet reads:

Turn Right on LILLIAN AVE Turn Right on GOODFELLOW BLVD Turn Left on LALITE AVE Turn Right on WILBORN DR OD Turn Right on GARESCHE AVE Turn Right on GOODFELLOW BLVD 4:55 GOODFELLOW BLVD & LALITE AVE (NW CRNR)

First Student’s route sheet repeated this pattern of bypassing a southeast corner and making a series

of turns to drop off four other students off at a northwest corner of Goodfellow during the afternoon

run of Child’s route. Beginning on the first day of school in August until October 22, 2019, First

Student picked up and dropped off Child at the northwest corner of Goodfellow and Lalite.

On October 23, 2019, First Student assigned Richardson as the substitute driver for Child’s

afternoon school bus route. Richardson had not driven Child’s route before that day. First Student

5 did not provide its updated software-generated route sheet with turn-by-turn directions to

Richardson before driving the route. Instead, Richardson was given a handwritten list of

intersections along the route. A copy of that list, set out below, was in evidence before the jury:

On the afternoon run, Richardson stopped the school bus at the southeast corner of

Goodfellow and Lalite and had Child alight, which required Child to cross two lanes of traffic on

Goodfellow. Child was visibly upset when he told Mother he had to cross Goodfellow to get home

that afternoon.

On October 24, 2019, First Student again assigned Richardson as the substitute driver for

Child’s afternoon school bus route. As the day before, Richardson was not provided a copy of the

updated route sheet. In the video recording obtained from the school bus, Richardson said, “I don’t

know how I remember these routes.” As Richardson approached the southeast corner of

Goodfellow and Lalite, she stopped the school bus, put out the stop arm, activated her lights, and

opened the door. The video shows Child darting down the school bus stairs and running around to

6 the front of the school bus. Almost immediately, a car stopped behind the school bus moved to

pass the school bus on the left driver’s side. Richardson sounded her horn multiple times and

shouted, but the car struck Child and fled from the scene. The passing car’s driver was never

identified or apprehended. The video shows Child limping as he returned to board the school bus.

Child suffered a right ankle sprain and a left ankle fracture. Child’s left ankle required

surgery to place pins for stabilization, which were surgically removed later. Child required

physical therapy. Child also underwent skin graft surgery to alleviate pain at the surgical scar site,

which improved but remains sensitive and requires the site to be wrapped for Child to be

comfortable. After the incident, Child went to therapy as he encountered emotional difficulty

crossing streets, walking in parking lots with moving cars, and riding the bus to and from school.

Child’s Negligence Claims

Mother, as Child’s next friend, sued Defendants for negligence. In Count I, Child alleged

Richardson was negligent for failing to drop off Child at the northwest corner of Goodfellow and

Lalite, which was his designated stop on the route sheet. In Count II, Child alleged First Student

was vicariously liable for Richardson’s actions because she was working in the course and scope

of her employment at the time of the incident. Additionally, Count II alleged First Student was

negligent for failing to provide Richardson with a copy of the software-generated route sheet, not

informing her the route sheet stated Child’s school bus stop was at the northwest corner or his

home was located west of Goodfellow. In Count III, Child alleged negligence per se against

Defendants for violating state law prohibiting students from crossing more than two lanes of traffic

and a state regulation requiring a school bus route to return students to a designated point after

7 school.3 First Student admitted Richardson acted as its employee at the time of the incident but

denied committing any negligent conduct.

Trial

When viewing the trial testimony in the light most favorable to the verdict in Child’s favor,

the jury heard Mother’s testimony, viewed Child’s videotaped deposition, and read portions of

Child’s medical records describing his physical and mental injuries. The jury also had before it the

software-generated route sheet, the handwritten list of intersections, the bus contract, KIPP’s RFP,

the training manual, and the school bus video recording depicting Richardson’s actions, Child

unloading from the school bus, and the car passing driving on the school bus’s left driver’s side

before it struck Child.

First Student’s District Manager (“Manager”), who oversees training, safety, and day-to-

day operations, testified. Manager testified First Student was responsible for routing but KIPP had

to approve the designated stops. Manager explained how First Student’s routing software

contained stops in existence for “decades,” but First Student examined the intersections for

accessibility and “hazards at the stop.” Manager stated safety was a consideration when the route

sheet drop-off locations were created. Manager acknowledged parts of Child’s school bus route

required the driver to pass through an intersection but then circle back or take an alternate route to

return to the intersection to reach a designated stop. Manager agreed “children can be injured if

they’re dropped off at a different location than they should be.” Manager admitted First Student

expected its drivers “to be highly aware” of danger from passing cars on the school bus’s left side.

Manager testified Child had to walk through at least one danger zone when Richardson dropped

him off at the southeast corner of Goodfellow and Lalite.

3 At the close of all evidence, the circuit court sustained First Student’s motion for directed verdict on any submission of negligence per se under Count III.

8 Manager testified its drivers were not required to follow the route sheet’s turn-by-turn

directions. Manager conceded Richardson did not follow the route sheet when Child was struck

but explained the “intersection” of Goodfellow and Lalite was the stop and the northwest corner

designation on the route sheet was “meaningless” because any corner at that intersection was safe.

Manager testified the route sheet stated northwest corner for the afternoon run not because of safety

reasons but because the routing software “replicates what happens in the morning” by taking “the

stops and revers[ing] them.” Manager further conceded First Student did not give Richardson a

copy of the route sheet, inform her the route sheet stated Child’s designated stop was at the

northwest corner, or tell her Child lived west of Goodfellow. Instead, First Student provided

Richardson with a list of intersections because she was “very familiar with the route,” and she was

not provided corner information because “she’s an experienced driver and she knows the rules of

the road.”

KIPP’s vice president of finance (“Vice President”) testified about KIPP’s expectations

regarding First Student’s school bus transportation services. Vice President testified First Student

was responsible for the routing and stop location and/or time changes were required to be in

writing. Vice President stated KIPP did not require First Student to design routes so students would

not have to cross the street but believed the “safer the better” was warranted when choosing a

specific drop-off point at an intersection. Vice President testified he was surprised to hear First

Student did not provide a substitute driver with a route sheet and a student was not dropped off at

a designated stop because failure to follow the route sheet did not meet KIPP’s expectations.

Defendants moved for a directed verdict on Counts I and II at both the close of Child’s

evidence and at the close of all evidence, which the circuit court overruled. The jury received two

verdict directors. Jury Instruction No. 7 stated:

9 Your verdict must be for [Child] and against . . . Richardson and First Student, Inc. if you believe:

First, [Child] was not dropped off at the northwest corner of Goodfellow and Lalite on October 24, 2019; and

Second, the southeast corner of Goodfellow and Lalite was not reasonably safe; and

Third, Defendants were thereby negligent; and

Fourth, such negligence directly caused or directly contributed to cause damage to [Child].

The term “negligent” or “negligence” as used in this instruction means the failure to use that degree of care that a very careful person would use under the same or similar circumstances.

Jury Instruction No. 8 stated:

Your verdict must be for [Child] and against [First Student] if you believe:

First, either:

First Student, Inc. did not provide . . . Richardson with a copy of [t]he [r]oute [s]heet on or prior to October 24, 2019; or

First Student, Inc. did not tell . . . Richardson that [t]he [r]oute [s]heet stated “NW CRNR” next to “GOODFELLOW BLVD & LALITE AVE” on or prior to October 24, 2019; or

First Student, Inc. did not tell . . . Richardson that [Child’s] grandmother’s house was located on Lalite Ave. west of Goodfellow on or prior to October 24, 2019; and

Second, Defendant First Student Inc. in any one or more of the respects submitted in paragraph First, was thereby negligent, and

Third, such negligence directly caused or directly contributed to cause damage to [Child].

The term “negligent” or “negligence” as used in this instruction means the failure to use that degree of care that a very careful person would use under the same or similar circumstances.

10 The jury returned a verdict in Defendants’ favor and against Child under Instruction No. 7.

The jury returned a verdict in Child’s favor and against First Student under Instruction No. 8 and

awarded Child $1.3 million in damages. First Student moved for JNOV, which was overruled.

First Student appeals.

Standard of Review

“The standard for reviewing a denied motion for JNOV is essentially the same as for

reviewing the denial of a motion for directed verdict.” Tharp v. St. Luke’s Surgicenter-Lee’s

Summit, LLC, 587 S.W.3d 647, 652 (Mo. banc 2019) (quoting Sanders v. Ahmed, 364 S.W.3d 195,

208 (Mo. banc 2012)). “A case may not be submitted unless legal and substantial evidence supports

each fact essential to liability.” Id. “Substantial evidence is evidence that ‘has probative force upon

the issues, and from which the trier of fact can reasonably decide the case.’” Brock v. Dunne,

637 S.W.3d 22, 26 (Mo. banc 2021) (quoting Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809,

814 (Mo. banc 2003)). To determine whether the evidence was sufficient, this “Court views all

evidence in the light most favorable to the jury’s verdict and draws all reasonable inferences in the

plaintiff’s favor.” Tharp, 587 S.W.3d at 652. “Conflicting evidence and inferences are

disregarded.” Robinson v. Langenbach, 599 S.W.3d 167, 176 (Mo. banc 2020). “Whether the

plaintiff made a submissible case is a question of law that this Court reviews de novo.” Brock,

637 S.W.3d at 26–27 (quoting Newsome v. Kan. City, Mo. Sch. Dist., 520 S.W.3d 769, 775

(Mo. banc 2017)). “This Court will reverse the jury’s verdict for insufficient evidence only where

there is a complete absence of probative fact to support the jury’s conclusion.” Klotz v. St.

Anthony’s Med. Ctr., 311 S.W.3d 752, 769 (Mo. banc 2010). “A JNOV is a drastic action that can

only be granted if reasonable persons cannot differ on the disposition of the case.” Arkansas-

Missouri Forest Prods., LLC v. Lerner, 486 S.W.3d 438, 447 (Mo. App. E.D. 2016).

11 Discussion

The jury awarded Child $1.3 million in damages on Instruction No. 8, which forms the

basis of the points raised in First Student’s appeal. First Student’s first three points on appeal are

premised on the theory its “only” duty was to ensure Child alighted at a reasonably safe place.

Thus, First Student’s points will be addressed out of order. This Court will address Points III and

IV together, then Points I and II separately.

Points III & IV: Instruction No. 8 Negligence Claim

Party Positions

In Point III, First Student argues the circuit court erred in overruling its JNOV motion

regarding its direct negligence because Instruction No. 8 improperly submitted to the jury purely

evidentiary details while omitting the “ultimate issue” of whether First Student dropped off Child

at a reasonably safe place. Child contends the circuit court properly overruled First Student’s

JNOV motion because Instruction No. 8 correctly instructed the jury as to First Student’s direct

negligence, which was not confined merely to the duty of whether Child was dropped off at a

reasonably safe place.

In Point IV, First Student argues the circuit court erred in overruling its JNOV motion

regarding its direct negligence because the passing car driver’s criminal conduct was an

intervening cause breaking the causal connection between Child’s injuries and First Student’s

negligence. First Student maintains the passing car driver’s criminal actions were unforeseeable.

First Student contends the intersection of Goodfellow and Lalite was safe for students regardless

of which corner Child alighted from the school bus. Child argues the circuit court properly

overruled First Student’s JNOV motion because the jury heard and rejected evidence the passing

car’s driver was the only party responsible for Child’s injuries. Child further argues the passing

12 car driver’s conduct cannot be considered an independent, intervening cause when the conduct is

a foreseeable, natural product of First Student’s original negligence in failing to provide

Richardson with the route sheet and failing to inform her Child’s designated school bus stop was

the northwest corner of the intersection.

Analysis

To prevail on a negligence claim, the plaintiff must establish (1) the defendant owed a duty

to him or her; (2) the defendant breached that duty; (3) causation; and (4) “injury” or “actual

damages.” Payne v. Fiesta Corp., 543 S.W.3d 109, 118 (Mo. App. E.D. 2018) (first quoting Peters

v. Wady Indus., Inc., 489 S.W.3d 784, 793 (Mo. banc 2016); then quoting Friday v. McClure, 536

S.W.3d 235, 239 (Mo. App. W.D. 2017)).

A. Duty

“Whether a duty exists is a question of law” to be decided by the court. Like ex rel. Like v.

Glaze, 126 S.W.3d 783, 785 (Mo. App. E.D. 2004); see also Taticek v. Homefield Gardens Condo.

Ass’n, 502 S.W.3d 645, 648 (Mo. App. E.D. 2016). “[W]hether a duty exists is determined on a

case by case basis.” Frye v. Monarch Title of N. Mo., 565 S.W.3d 693, 699 (Mo. App. W.D. 2018)

(citing Sun Aviation, Inc. v. L-3 Comms. Avionics Sys., Inc., 533 S.W.3d 720, 727 (Mo. banc

2017)). “Factual circumstances surrounding the relative status of the parties and other factual

circumstances peculiar to such particular case dictates the acts/omissions which may be required

under the standard of reasonable care.” Id. (quoting Am. Mortg. Inv. Co. v. Hardin-Stockton Corp.,

671 S.W.2d 283, 292–93 (Mo. App. W.D. 1984)).

First Student alleges its only duty was to ensure Child alighted in a reasonably safe place.

First Student is correct this may be one of its duties, as stated in Instruction No. 7. See Plummer v.

Dace, 818 S.W.2d 317, 321 (Mo. App. E.D. 1991). But, a legal duty may arise from other sources:

13 (1) it may be prescribed by the legislature; (2) it may arise because the common law imposes a duty based on the relationship between the parties, or because under a particular set of circumstances a party must exercise due care to avoid foreseeable injury; or (3) it may arise because a party has assumed a duty by contract or conduct.

Scales v. Whitaker, 615 S.W.3d 425, 431 (Mo. App. E.D. 2020). “While the issue of whether a

duty exists is a question for the court, conclusions about the particular facts of the case are an issue

for the jury.” Hackmann v. Mo. Am. Water Co., 308 S.W.3d 237, 240 (Mo. App. E.D. 2009) (citing

Lumbermens Mut. Cas. Co. v. Thornton, 92 S.W.3d 259, 267 (Mo. App. W.D. 2002)).

Here, First Student’s independent duty as posited in Instruction No. 8 arises from assuming

a duty by the bus contract, assuming a duty by conduct, and/or given the particular set of

circumstances in this case, which required First Student to exercise due care to avoid foreseeable

injury. Scales, 615 S.W.3d 431. This Court will address each duty theory in turn.4

1. First Student Assumed a Duty by Contract

A legal duty “may arise because a party has assumed a duty by contract or agreement

whether written or oral.” Hackmann, 308 S.W.3d at 240. Here, a legal duty arose between First

Student and Child under the school bus contract.5 KIPP contracted with First Student to provide

pupil transportation services. The bus contract required First Student to “fulfill [KIPP’s] needs for

transportation services as described in the [RFP] . . . .” First Student was contractually responsible

for planning routes and stops. Further, the RFP states First Student “shall ensure that each driver

4 Agreeing with First Student, the only duty is alighting at a reasonably safe place, the dissenting opinion does not address any of this opinion’s analysis regarding why First Student’s independent duty arises. 5 To the extent First Student argues Child is not a party to the contract, “[a]lthough a contract may not generally be the source of a tort duty by one of the contract parties to a third party, Missouri law recognizes an exception in situations involving the safety of other persons.” L.A.C. ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247, 262 (Mo. banc 2002); see also State ex rel. Tyler Techs., Inc. v. Chamberlain, 679 S.W.3d 474, 478 (Mo. banc 2023); Restatement (Second) of Torts, § 324A. “The contract is of interest . . . because it shows what defendant undertook to do.” L.A.C., 75 S.W.3d at 262 (quoting Wolfmeyer v. Otis Elevator Co., 262 S.W.2d 18, 21 (Mo. 1953)). “Some of the things defendant undertook to do were such as might affect the safety of third persons, including plaintiff.” Id. “And in doing the things which the defendant knew or should have known affecting the safety of third persons, defendant had a duty to such third persons to do carefully what it undertook to do.” Id.

14 will have an updated route and/or student listing prior to making any run” and must provide a

“[m]ethodology to insure [sic] drivers have a working knowledge of the routes and metropolitan

St. Louis area.” Additionally, any stop location changes had to be in writing. Hence, First Student

had a contractual duty to provide Richardson with the designated route, stops, and/or student listing

before making her run. See generally Hackmann, 308 S.W.3d at 240. This contractual duty was

submitted in Instruction No. 8, listing the information First Student had in its possession but was

alleged to have not provided to Richardson before making her run despite the contractual duty to

provide sufficient information as to Child’s designated school bus drop off location, i.e., an

updated route and/or student listing.

2. First Student Assumed a Duty by Conduct

In addition to these contractual provisions, Missouri Courts recognize “[i]f a defendant

assumes a duty, by contract or by conduct, he can be held liable for injuries caused by the unsafe

performance of that assumed duty.” Scales, 615 S.W.3d at 438 (quoting Bowan ex rel. Bowan v.

Express Med. Transporters, Inc., 135 S.W.3d 452, 457 (Mo. App. E.D. 2004)). Missouri Courts

have adopted Restatement (Second) of Torts section 323 (1965), which states:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.

Junior Coll. Dist. of St. Louis v. City of St. Louis, 149 S.W.3d 442, 451 (Mo. banc 2004). To

succeed on a claim under Restatement section 323, a plaintiff must “prove that [the defendant]

undertook ‘to render services’ to [the plaintiff] and that [the defendant] should recognize these

services as ‘necessary for the protection of’ [the plaintiff].” Taticek, 502 S.W.3d at 651 (quoting

15 Green v. Unity Sch. Of Christianity, 991 S.W.2d 201, 205 (Mo. App. W.D. 1999)). “Undertake”

in this context means “to take upon oneself; to set about.” Id. (quoting Green, 991 S.W.2d at 206).

In Taticek, a condominium complex resident sued the condominium association and

management company for injuries she suffered when another resident’s dog attacked her while she

was in the complex’s common area. Id. at 647. This Court noted the condominium association

created rules and regulations for the residents’ “health, comfort, safety, and welfare.” Id. at 652.

This Court further noted the condominium association enforced these rules through inspections

and with the help of the condominium management company. Id. Accordingly, this Court held the

condominium association and management company undertook “to render services to another

which he should recognize as necessary for the protection of the other’s person or things[.]” Id. In

other words, this Court held the condominium association owed a duty to the condominium

residents to enforce its safety rules and regulations based on its conduct. Id.

Here, the issue is whether First Student undertook to render services to Child, which it

should recognize as necessary for Child’s protection. Id. First Student provided student

transportation services to KIPP. First Student agreed in the RFP it would “comply with” the

expectation “[t]he safety of [the] students [being their] primary priority.” First Student also agreed

it would “be primarily responsible for planning all [school bus] routes, stops and schedules in

coordination with, and based upon, [KIPP] specifications.” To fulfill this undertaking, First

Student used software to create school bus routes and generate school bus stops for the students.

Manager testified this route sheet was “for the driver[s].” The route sheet provided the school bus

drivers with turn-by-turn directions to each designated bus stop, including specified corners of the

intersections, a list of which students are picked up and dropped off at each school bus stop, and

the grade levels of each student bus rider. Beyond simple utility, the route sheet itself is critically

16 important because in producing this route sheet, Manager agreed safety is something the routing

department considers. For example, the routing software “would have [the] information” to know

which side of streets the students live, and specifically which side of Goodfellow Child’s house

on Lalite is located.6 The route sheet specifically designated Child’s bus stop as the northwest

corner of Lalite and Goodfellow. The route sheet required the school bus driver to make a series

of turns to return to the intersection of Lalite and Goodfellow at the northwest corner. Mother

testified Child’s regular bus driver picked him up and dropped him off at the northwest corner of

Lalite and Goodfellow.7

School bus drivers knowing which side of the street a student lives is important because

they must follow certain procedures set out in their training and mandated by state regulations if a

child must cross a street. For example, school bus drivers are required to “[c]heck traffic in front

and rear of the school bus before [giving] the students a hand signal that it is okay to cross the

road.” 5 CSR 30-261.010(3)(A)2.H (emphasis added). School bus drivers are instructed to “train

students” to “not approach the school bus until given a signal and to check traffic before crossing

the roadway.” Id. School bus drivers are also mandated to “require students who must cross the

roadway after leaving the bus . . . to cross a minimum of ten feet (10’) in front of the bus and only

upon a signal given by the driver . . . .” 5 CSR 30-261.010(3)(A)2.I. The route sheet is also critical

6 There is a reasonable inference the other children dropped off on the northwest corners of Goodfellow also lived west of Goodfellow and were dropped off there for safety reasons. Because, otherwise, there is no reason for First Student to single these children out for a series of turns to place them on a northwest corner. Manager’s contention the reason certain corners are designated is because the stops on the route sheet have been in existence for “[d]ecades” and because Goodfellow had four lanes of traffic students were not allowed to cross. Goodfellow is now a two-lane road upon which students may cross, but because the stops were “prestored” in the system, the route sheet still designates the stop at the northwest corner. First Student’s explanation is unconvincing given at the beginning of the school year Mother requested Child’s bus stop be changed, and the stop was deliberately changed to the northwest corner of Goodfellow and Lalite. 7 Although Manager testified any corner in the intersection, rather than the designated corner on the route sheet, was an acceptable bus stop, the issue of where Child’s designated school bus stop was located was an issue of fact for the jury to decide. Hackmann, 308 S.W.3d at 240.

17 for school bus drivers because it provides the grade level of the students riding the school bus.

KIPP, as provided in the RFP, requires kindergarten and first-grade students “to be picked up at

their stop by an authorized adult for release” . . . students “who are not picked up at their stop are

to be returned to a location designated by [KIPP],” and First Student must “promptly notify the

school, and the student’s parents.” Additionally, Manager herself testified “the students are not,

cannot be required to cross four lanes of traffic.”

Nonetheless, Manager contends when a substitute bus driver “is very familiar with the

route,” First Student “just give[s] them the intersections that the students go to.” Despite the

handwritten list of intersections being incorrect—containing stops not on the route sheet, excluding

certain stops,8 and not indicating which corner the students were to be dropped off at—Manager

maintained Richardson did not need the route sheet because she was “very familiar” with the route.

Additionally, despite testifying Richardson “didn’t know the students” and was “unfamiliar with

the students,”9 Manager maintained Richardson only needed the intersections because she “knows

what is appropriate and safe to drop a student off.” Yet, to know what is appropriate and safe to

drop off a student, a school bus driver must have certain information as to each student, such as

the route sheet generated by First Student’s software and created “for the driver[s].”

Accordingly, First Student undertook “to render services to another which [it] should

recognize as necessary for the protection of the other’s person or things[.]” Taticek, 502 S.W.3d

at 651. Providing First Student school bus drivers sufficient information as to its students’

designated school bus stops, such as via the route sheet, was necessary to protect Child from injury.

8 Even though it is listed on the handwritten list of intersections, Manager admitted Goodfellow and Sherry is not a stop on the route sheet. Additionally, when asked if she could find Goodfellow and Laura on the handwritten list of intersections, Manager responded “[I]t is not.” 9 This testimony was in response to Richardson’s statements heard via the school bus video recording where Richardson asserted she did not “know how she remember[ed] this route” and asked who Child was.

18 Hence, Instruction No. 8 posited First Student undertook a duty to Child to ensure his school bus

driver had sufficient information as to his designated bus stop.

3. First Student Had a Duty to Exercise Due Care to Ensure Child’s Safety

Finally, a legal duty “may arise because under a particular set of circumstances an actor

must exercise due care to avoid foreseeable injury.” Hackmann, 308 S.W.3d at 240. First Student’s

and the dissenting opinion’s proposition this Court is foreclosed from examining whether an

additional duty exists construes legal duty jurisprudence too narrowly. The law does not foreclose

courts from finding other duties arising out of a particular set of circumstances. Id.; see generally

Hoffman v. Union Elec. Co., 176 S.W.3d 706 (Mo. banc 2005) (analyzing whether Union Electric

had a duty to inform emergency personnel a power line was de-energized). Instruction No. 8 details

a separate theory of negligent liability: whether First Student had a duty to provide Child’s school

bus driver with sufficient information as to Child’s designated school bus drop-off location to

avoid a foreseeable injury.

“This Court’s determination of whether a duty exists in a particular case depends on several

public policy considerations including ‘the foreseeability of the injury, the likelihood of the injury,

the magnitude of the burden of guarding against it and the consequences of placing that burden on

defendant.’” Scales, 615 S.W.3d at 436 (quoting Hallquist v. Midden, 196 S.W.3d 601, 604 (Mo.

App. E.D. 2006)). An additional public policy consideration is whether a defendant has “some

right or obligation to control the activity that presents the danger of injury.” Id. (quoting Burrell

ex rel. Schatz v. O’Reilly Auto., Inc., 175 S.W.3d 642, 656 (Mo. App. S.D. 2005)).

a. Foreseeability & Likelihood of Injury

“Foreseeability is defined ‘as the presence of some probability or likelihood of harm

sufficiently serious that ordinary persons would take precautions to avoid it.’” Id. (quoting

19 Hallquist, 196 S.W.3d at 604). “A mere probability is insufficient; rather, there must be the

existence of a probability which would cause a reasonable person to take precautions to avoid it.”

Id. (quoting Hallquist, 196 S.W.3d at 604).

The issue here is the foreseeability and likelihood of Child, a nine-year-old fourth grader,

being struck by a passing car while crossing the street when his school bus driver was not provided

with sufficient information to drop him off at his designated school bus stop, which would not

have required him to cross this street or enter a known “danger zone” for passing cars. First Student

is responsible for creating school bus routes, determining the designated school bus stop location

for every child it transports, and managing its school bus drivers. Moreover, First Student must

follow all state and local laws and regulations. These state laws and regulations anticipate and seek

to prevent the foreseeable and likely tragedy of a child being struck by a passing car by establishing

criteria in determining school bus routes and school bus stops, regulating school buses and school

bus driver operations, and mandating motorists take certain action when approaching a school bus

under the penalty of law.

For example, school bus drivers are required to “[c]heck traffic in front and rear of the

school bus before [giving] the students a hand signal that it is okay to cross the road.” 5 CSR 30-

261.010(3)(A)2.H (emphasis added). School bus drivers are instructed to “train students” to “not

approach the school bus until given a signal and to check traffic before crossing the roadway.” Id.

School bus drivers are also mandated to “require students who must cross the roadway after leaving

the bus . . . to cross a minimum of ten feet (10’) in front of the bus and only upon a signal given

by the driver . . . .” 5 CSR 30-261.010(3)(A)2.I.

Additionally, Missouri regulations require certain criteria to be considered in determining

a child’s school bus route and bus stop. See 5 CSR 30-261.010(4)(B). The location of a child’s

20 residence, along with the grade and age of the child being transported, are criteria for determining

a child’s school bus route. 5 CSR 30-261.010(4)(B)1.A.-B (emphasis added). Other safety

concerns to consider when establishing school bus routes are: “the general safety of all routes in

relation to hazards such as . . . intersections,” “the general safety of loading and unloading stops

in relation to the visibility of approaching motorists,” “[w]alking distance to the bus stop in relation

to the age of the pupil,” and the “[w]alking route safety to loading stop, from unloading, and

loading zones . . . .” 5 CSR 30-261.010(4)(B)2. In creating these laws and regulations, the State of

Missouri is foreseeing the danger to children and taking steps to ensure their safety because “[a]

child on or near a roadway is almost devoid of any real appreciation of danger, and their

thoughtless and impulsive acts are to be expected and guarded against.” Plummer, 818 S.W.2d at

321 (quoting Huckstep v. Richards, 609 S.W.2d 731, 733 (Mo. App. S.D. 1988)).

Beyond Missouri’s laws and regulations foreseeing injury, First Student itself is aware of

the likelihood and foreseeability of a child being struck by a passing car when alighting from a

school bus. First Student’s school bus driver training manual explains, “[d]anger zones are areas

outside the bus where children are in the most danger of being hit . . . by another vehicle” and

emphasizes “the area to the left of the bus is always considered dangerous because of passing

cars.” Manager also agreed in her testimony the information about these “danger zones” is

something First Student expects its drivers to know. Further, Missouri caselaw recognizes, “this

zone of protection continues until the child ‘has crossed any immediate road and is in a place of

safety in a direction towards [his or her] home.’” Farm Bureau Town & Country Ins. Co of Mo. v.

Schmidt, 751 S.W.2d 375, 375–76 (Mo. banc 1988) (quoting Ga. Farm Bureau Mut. Ins. Co. v.

Greene, 329 S.E.2d 204, 208 (Ga. Ct. App. 1985)).

21 Such safety concerns are considered when generating First Student’s school bus route

sheet. Manager testified these bus route sheets are “for the driver.” Manager testified when

generating the route sheet, First Student used routing software, which considers safety. For

example, the routing software “would have [the] information” to know which side of Goodfellow

Child’s house on Lalite is located. The route sheet designates the northwest corner of Lalite and

Goodfellow as Child’s bus stop location. The route sheet requires the school bus driver to make a

series of turns on the route to return to the intersection of Lalite and Goodfellow at the northwest

corner. Manager recognized parts of the route directed the bus driver to pass through an

intersection, but then circle back or take an alternate route to get to a specific corner of the

intersection to drop off a child. Manager conceded Child would not have to cross Goodfellow,

avoiding danger from passing cars on this street, but would still have to cross Lalite if a bus driver

properly followed the route sheet directions. Nonetheless, Manager acknowledged “Goodfellow is

busier than Lalite,” and agreed there is no crosswalk at Goodfellow and Lalite, as demonstrated

by the photographic exhibits. Finally, Manager agreed in her testimony “children can be injured if

they’re dropped off at a different location than they should be.”

Thus, Child’s injuries were foreseeable and likely when First Student failed to provide its

school bus driver, Richardson, with sufficient information to drop off Child at his designated

school bus stop, requiring him to cross the street, pass through a danger zone, and ultimately be

struck by a passing car.

b. Magnitude & Consequences of Burden

As explained, the bus contract, state law, state regulation, and its own training manual

dictate First Student considers safety when generating school bus routes and stops and require it

to sufficiently guard against the danger of children being struck by passing cars. See generally

22 § 304.050; 5 CSR 30-261.010.10 Moreover, First Student was paid to and already produced the

route sheet specifying certain intersection corners as the designated bus stops for students,

including Child, which considered the location of the student’s residence and certain safety

hazards, such as intersections. Thus, the magnitude and consequences of the burden to provide

school bus drivers with sufficient information regarding a child’s bus stop are already considered

by law and performed under First Student’s policies and practices. Here, the designated route

existed. The burden to provide the substitute driver of a copy of it was minimal.

c. Right or Obligation to Control Activity

Whether a defendant has “some right or obligation to control the activity that presents the

danger of injury” is an additional public policy consideration in determining whether First Student

owes Child a legal duty. Scales, 615 S.W.3d at 436 (quoting Burrell ex rel. Schatz, 175 S.W.3d at

656). First Student has almost complete control over children loading and unloading school buses,

including the location from which children load and unload their school buses. Additionally, by

its own school bus contract and RFP, First Student is “primarily responsible for planning all routes,

stops and schedules in coordination with, and based upon [KIPP] specifications.” First Student is

also required to ensure its school “bus stops safely comply with applicable Missouri laws and

DESE regulations.” See generally 5 CSR 30-261.010(4)(B). It is First Student’s responsibility “to

maintain, update, manage and provide all needed documentation to [KIPP] as necessary for

compliance with Missouri DESE, and local district rules and regulation.” Moreover, First Student

is required to “ensure that each [school bus] driver will have an updated route and/or student listing

prior to making any run.” Thus, First Student retains almost complete control of informing its

school bus drivers to ensure children are dropped off at their designated school bus stops.

10 All statutory references are to RSMo 2016, unless otherwise indicated.

23 d. Legal Duty Under Particular Circumstances in Sum

“The duty of care where children are involved always requires more vigilance and caution

than might be required where adults are concerned.” Plummer, 818 S.W.2d at 321 (citing Smith v.

Archbishop of St. Louis, 632 S.W.2d 516, 522 (Mo. App. E.D. 1982)). “This is particularly true

where the party responsible for the child is or should be aware of a particularly dangerous

situation.” Id. Accordingly, under these circumstances, this Court finds First Student had a legal

duty to provide Child’s school bus driver, Richardson, with sufficient information as to Child’s

designated school bus stop location given: (1) Child’s injuries were likely and foreseeable because

his school bus driver was not provided with sufficient information to drop off Child at his

designated school bus stop resulting in him crossing the street through a danger zone; (2) the

magnitude and consequences of the burden to provide school bus drivers with sufficient

information of a child’s designated school bus stop are already contemplated by law and First

Student’s policies; and (3) First Student retains almost complete control over providing its school

bus drivers with route information to ensure children are dropped off at their designated school

bus stops.11

e. Reasonably Safe Place Analysis is Inapplicable

The dissenting opinion cites to five cases to support the contention “the only legal duty of

a bus company to its passenger in a ‘bus drop-off’ case is to select and stop its bus at a place

‘reasonably safe’ for the passenger to alight”: Graeff v. Baptist Temple of Springfield, 576 S.W.2d

291, 307 (Mo. banc 1978); Moore ex rel. Moore v. Bi-State Dev. Agency, 87 S.W.3d 279, 293–94

11 This Court is not making a broad public policy statement that all school bus companies must drop off all school children at a residential corner such that no child ever crosses through the danger zone for passing cars. That is not the duty we are examining or deciding. This opinion addresses the duty to inform drivers of existing designated drop- off locations for specific students, given their age and residential location. See 5 CSR 30-261.010(4)1.A-B. This Court only addresses the factual circumstances peculiar to this case. Frye, 565 S.W.3d at 699.

24 (Mo. App. E.D. 2002) (abrogated on other grounds by Goldsby v. Lombardi, 559 S.W.3d 878, 883

n.3 (Mo. banc 2018)); Plummer v. Dace, 818 S.W.2d 317, 320 (Mo. App. E.D. 1991); Sanford v.

Bi-State Dev. Agency, 705 S.W.2d 572, 575 (Mo. App. E.D. 1986); Goedecke v. Bi-State Dev.

Agency of Missouri-Illinois, 412 S.W.2d 189, 192 (Mo. App. 1967).12 These cases address the duty

common carriers owe to their passengers: a common carrier must “exercise the highest degree of

care for its passengers,” and this duty “continues at least until the passenger has been discharged

at a reasonably safe place.” Plummer, 818 S.W.2d 320; see also Graeff, 576 S.W.2d at 307;

Sanford, 705 S.W.2d at 574–75; Goedecke, 412 S.W.2d at 192.13 Contrary to the dissenting

opinion’s proposition, the rule itself determining what duty is owed is not invariably exclusive.

Rather, the rule dictates common carriers owe this degree of care, or duty, to the passenger until

they are dropped off at a reasonably safe place, and whether discharging the passenger at a

reasonably safe place is the common carrier’s only duty to that passenger is completely case

specific. Id.

For example, in Goedecke, the Court addressed the latter scenario discussing the degree of

care, i.e., duties of common carriers “that use[] the public streets to discharge its passengers.” 412

S.W.2d at 192. The Court noted “[s]ince carriers operating on public highways neither own nor

control the highways, they are not responsible for the condition of landing areas—that is a

municipal duty.” Id. The Court held “[a]pplying these principles to this case, Bi-State’s only duty

was to select and stop its bus at a place reasonably safe for [the plaintiff] to alight.” Id. (emphasis

added). The Court further held “[u]nder the evidence here, the act of selecting and stopping the

12 Moore is not addressed further because Moore applies Illinois negligence law and “decisions of other state courts are not binding on us.” State v. DeRoy, 623 S.W.3d 778, 791 (Mo. App. E.D. 2021) (quoting Doe v. Roman Cath. Diocese of St. Louis, 311 S.W.3d 818, 823 (Mo. App. E.D. 2010)). 13 This Court does not address whether school buses have a greater duty beyond just dropping a student off at a reasonably safe place given the different laws applicable to school buses because it is not an issue raised in this case.

25 bus at a safe place was a duty that Bi-State could fulfill only through the mind and body of its

driver[.]” Id. (emphasis added).

Here, Instruction No. 8 is not about a defect in the street, nor if the bus stopped before or

after such a defect; rather, it is about the independent failure of First Student to provide its bus

driver with sufficient information as to Child’s designated school bus drop off location. This

designated spot was created by First Student using its software, which considered Child’s safety,

age, and residential location. These are details First Student was required, by contract and by law,

to consider when planning routes and stops for students. Only First Student could provide this

information to its school bus driver. First Student can accomplish its plan only if the school bus

driver is given a copy of the detailed route it has created. Instruction No. 8 and the duty it submits

is distinct from the duty submitted in Instruction No.7. Additionally, Instruction No. 7 does not

preclude Instruction No. 8 because Goedecke does not state nor should it be read to preclude Child

from alleging a separate, independent theory of negligence based solely on First Student’s conduct.

The Court in Goedecke limited its holding to its own facts and circumstances and to the claim

raised because the plaintiff only sued based on Bi-State’s alleged failure to provide her a safe place

to alight and did not provide any evidence of other conduct by Bi-State relating to the bus

passenger zone. Id. at 190, 192.

Moreover, the dissenting opinion’s assertion “Plummer stands for the proposition that the

duty owed to a student alighting from a school bus is to drop him or her off at a reasonably safe

place” is misguided. The only claim remaining in Plummer was directed at the school bus driver

alleging he was negligent in allowing the child “to exit the school bus at an unsafe place, at the

wrong stop, and alone[.]” 818 S.W.2d at 318.14 The Plummer Court emphasized “[w]hat is a

14 In Plummer, a six-year-old student was dropped off by her school bus driver and the child was hit by a car while she was crossing the street. 818 S.W.2d at 318. Through her parents, the child sued the driver of the passing vehicle,

26 ‘reasonably safe place’ is susceptible of widely divergent conclusions depending upon the

circumstances of each case.” 818 S.W.2d 320. Specifically, this Court noted “[t]he duty of care

where children are involved always requires more vigilance and caution than might be required

where adults are concerned” and “[t]his is particularly true where the party responsible for the

child is or should be aware of a particularly dangerous situation.” Id. at 321. “A child on or near a

roadway is almost devoid of any real appreciation of danger, and their thoughtless and impulsive

acts are to be expected and guarded against.” Id. (quoting Huckstep, 609 S.W.2d at 733).

“Applying these principles to the facts of this case” this Court held they were “unable to conclude

as a matter of law that [the bus driver] provided a reasonably safe place for [the child] to alight

from the bus.” Id. (emphasis added).15 “The mere fact that a six[-]year-old child was safe so long

as she remained in the same position does not compel such a conclusion.” Id. “That [the bus driver]

should have anticipated some misfortune was likely to befall the little girl under these

circumstances is at least a matter upon which reasonable minds could differ.” Id. Thus, like in

Goedecke, this Court in Plummer, does not state nor should it be read to preclude Child from

alleging a separate, independent theory of negligence based solely on First Student’s conduct,

specifically conduct occurring well before Child alighted the bus.16

the bus driver, and the school district. Id. The claim between the driver and the child settled, and the claims against the school district were dismissed because the school district was protected under sovereign immunity. Id. 15 The appeal in Plummer dealt with a circuit court granting a motion for summary judgment. 818 S.W.2d 321. This Court reversed the circuit court’s grant of summary judgment in favor of the bus driver and remanded the case because there were still ultimate issues of material fact for the jury. Id. at 321–22. 16 Factually, four of the cases are also distinct because they do not involve school buses; rather, they in involve Bi- State buses or a church bus. Graeff, 576 S.W.2d at 295 (Mo. banc 1978) (church bus); Moore, 87 S.W.3d at 284 (Bi- State bus); Sanford, 705 S.W.2d at 573 (Bi-State bus); Goedecke, 412 S.W.2d at 190 (Bi-State bus). This a distinction with a difference because Missouri law differentiates between school buses and common carrier buses, maintaining different requirements and rules for school bus transportation providers, school bus drivers, and civilians driving near school buses. See, e.g., § 304.050 (listing rules applying to school buses, school bus drivers, and civilian drivers); § 304.060 (differentiating between common carrier buses and school buses); 5 CSR 30-261.010(3)(A)2.H (rule applying to school bus drivers); 5 CSR 30-261.010(3)(A)2.I (rule applying to school bus drivers).

27 B. Breach

Having found a duty to provide its drivers with sufficient information as to Child’s

designated drop-off location, this Court turns its analysis to breach. “[W]hether the duty that exists

has been breached is a question of fact for exclusive resolution for the jury.” Hackmann, 308

S.W.3d at 240 (quoting Lumbermens Mut. Cas. Co., 92 S.W.3d at 266). Here, the jury determined

under Instruction No. 8 First Student breached its duty to provide Richardson with sufficient

information as to Child’s designated school bus stop location. Under the standard of review, this

Court need only examine whether Child presented a submissible case by offering evidence to

support the element of breach. Brock, 637 S.W.3d at 26–27. To determine whether the evidence

was sufficient, this “Court views all evidence in the light most favorable to the jury’s verdict and

draws all reasonable inferences in the plaintiff’s favor.” Tharp, 587 S.W.3d at 652. “Conflicting

evidence and inferences are disregarded.” Robinson, 599 S.W.3d at 176.

Mother testified Child’s designated school bus stop was “GOODFELLOW BLVD &

LALITE AVE (NW CRNR)” indicating the northwest corner of that intersection. Mother testified

Child’s regular school bus driver picked him up and dropped him off at the northwest corner of

Goodfellow and Lalite each day until Richardson drove the afternoon route using the handwritten

list of intersections which did not correspond in form or content to the software-generated, turn-

by-turn driving instructions and dropped Child off at the southwest corner. Most importantly, the

jury heard testimony from Manager, who conceded First Student did not give Richardson a copy

of the route sheet, inform her the route sheet stated northwest corner, or tell her Child lived west

of Goodfellow. Instead, First Student provided Richardson with a list of intersections because she

was “very familiar with the route,” and she was not provided corner information because “she’s

an experienced driver and she knows the rules of the road.”

28 The jury was free to believe or disbelieve Manager’s testimony about the sufficiency of the

handwritten list of intersections. Keveney v. Mo. Mil. Acad., 304 S.W.3d 98, 105 (Mo. banc 2010)

(quoting Altenhofen v. Fabricor, Inc., 81 S.W.3d 578, 584 (Mo. App. W.D. 2002)) (“The jury is

the sole judge of the credibility of witnesses and the weight and value of their testimony and may

believe or disbelieve any portion of that testimony.”). The jury was also free to believe

Richardson’s statement, “I don’t know how I remember these routes,” which contradicted

Manager’s testimony Richardson was “very familiar with the route.” The jury heard testimony

from Vice President, who stated he was surprised to hear First Student did not provide a substitute

driver with a route sheet and a student was not dropped off at a designated stop because failure to

follow the route sheet did not meet KIPP’s expectations. The jury also had before it the school bus

contract, KIPP’s RFP, the handwritten list, the software-generated route sheet, and First Student’s

training manual.

Thus, under this Court’s standard of review, Child presented a submissible case by offering

evidence to support the element of breach. Brock, 637 S.W.3d at 26–27. There is sufficient

evidence on the record to support the jury’s determination First Student breached its duty to Child

to provide Richardson with sufficient information as to Child’s designated school bus stop

location.

C. Causation & Intervening Act

“To prove a causal connection between the alleged negligent act and injury, the plaintiff

must show both causation in fact and proximate cause.” Kottman v. Mo. State Fair, 451 S.W.3d

331, 334 (Mo. App. W.D. 2014). “The ‘but for’ test is applied to determine whether causation in

fact has been established.” Id. (quoting Freight House Lofts Condo Ass’n v. VSI Meter Servs., Inc.,

402 S.W.3d 586, 599 (Mo. App. W.D. 2013)). “The ‘but for’ test for causation provides that the

29 defendant’s conduct is a cause of the event if the event would not have occurred ‘but for’ that

conduct.” Id. (quoting Freight House Lofts, 402 S.W.3d at 599). “The trier of fact normally decides

causation, especially where reasonable minds could differ as to causation on the facts of the case.”

Bruckerhoff v. City of Perryville, 681 S.W.3d 303, 308 (Mo. App. E.D. 2023) (quoting Kraus v.

Hy-Vee, Inc., 147 S.W.3d 907, 918 (Mo. App. W.D. 2004)). “Causation of fact is an issue for the

jury if sufficient evidence is presented from which the jury could reasonably find that the plaintiff’s

injury was the direct result of the defendant’s negligence.” Id. at 334–35 (quoting Freight House

Lofts, 402 S.W.3d at 599).

“Whether proximate cause exists is usually a jury question; however, a court properly

interposes its judgment in this determination when the evidence reveals the existence of an

intervening cause that eclipses the role the defendant’s conduct played in the plaintiff’s injury.”

Rayman v. Abbott Ambulance, Inc., 546 S.W.3d 12, 18 (Mo. App. E.D. 2018) (quoting Heffernan

v. Reinhold, 73 S.W.3d 659, 664 (Mo. App. E.D. 2002)). “The act must be a ‘new and independent

force which so interrupts the chain of events that it becomes the responsible, direct, proximate and

immediate cause of the injury.’” Id. (quoting Lewis v. Biegel, 204 S.W.3d 354, 363 (Mo. App.

W.D. 2006)). In other words, “[n]egligent conduct ceases to be the proximate cause of an injury

only when the intervening act constitutes such a new and independent cause that it interrupts, rather

than contributes to, the chain of events set in motion by the original negligence.” Plummer, 818

S.W.2d at 321.

In Point IV, First Student argues, and the dissenting opinion agrees, the passing car’s

actions constituted an intervening and superseding cause because they were criminal and

unforeseeable. However, a “defendant is not invariably excused from liability when the chain of

causation includes a criminal act.” Finocchio v. Mahler, 37 S.W.3d 300, 303 (Mo. App. E.D.

30 2000). “Conduct may not be considered an independent, intervening cause where such action is ‘a

foreseeable, natural product of the original negligence.’” Plummer, 818 S.W.2d at 321 (quoting

Jordan v. Gen. Growth Dev. Corp., 675 S.W.2d 901, 903 (Mo. App. W.D. 1984)). “Where the

likelihood of the intervening act is one of the hazards which rendered the original actor’s conduct

negligent, he cannot be insulated from the consequences of the chain of events he set in motion.”

Id. at 321–22 (citing St. John Bank & Trust Co. v. City of St. John, 679 S.W.2d 399, 403 (Mo.

App. E.D. 1984)).

“[I]t is not unexpected or freakish that a driver might disregard traffic laws and strike a

pedestrian.” Thompson v. City of St. Joseph, 597 S.W.3d 687, 694 (Mo. App. W.D. 2019) (quoting

Britton v. City of St. Louis, 552 S.W.3d 139, 142 (Mo. App. E.D. 2018)). Here, any passing car

would necessarily do so in violation of section 304.050.1(1), which requires motorists to stop.17

First Student specifically emphasized in its training manual “the area to the left of the bus is always

considered dangerous because of passing cars.” (Emphasis added). First Student’s training manual

defines the area to the left of the school bus as a danger zone, i.e., an area “outside the bus where

children are in the most danger of being hit, either by another vehicle or their own bus.” Manager

admitted First Student expected its drivers “to be highly aware” of danger from passing cars on

the school bus’s left side. Moreover, state law and regulations address vehicles passing school

buses and the dangers for children around school buses. See, e.g., § 304.050. Additionally, because

passing cars are a hazard, school bus drivers are required to “[c]heck traffic in front and rear of the

school bus before [giving] the students a hand signal that it is okay to cross the road.” 5 CSR 30-

261.010(3)(A)2.H. School bus drivers are instructed to “train students” to “not approach the school

17 This statute specifically requires motorists to stop for school buses while children are loading and unloading. § 304.050.1(1). This statute also requires school buses to deploy signaling devices to indicate students are loading or unloading. § 304.050.4. Moreover, the legislature dedicated a statute “in commemoration of Jessica Leicht and all other Missouri schoolchildren who have been injured or killed during the operation of a school bus.” § 304.050.3.

31 bus until given a signal and to check traffic before crossing the roadway” and “require students

who must cross the roadway after leaving the bus . . . to cross a minimum of ten feet (10’) in front

of the bus and only upon a signal given by the driver . . . .” 5 CSR 30-261.010(3)(A)2.I.18 State

laws exist to protect children from this foreseeable criminal danger. Thus, under these

circumstances, the passing car disregarding the school bus stop signals and passing the school bus

was foreseeable and did not “eclipse[] the role [First Student’s] conduct played in the [Child’s]

injury.” Wilmes v. Consumers Oil Co. of Maryville, 473 S.W.3d 705, 724 (Mo. App. W.D. 2015).

Because causation of fact is an issue for the jury, under the standard of review, this Court

need only determine whether Child presented sufficient evidence “from which the jury could

reasonably find” Child’s injuries were “the direct result of [First Student’s] negligence.” Kottman,

451 S.W.3d at 334 (quoting Freight House Lofts, 402 S.W.3d at 599). The jury heard testimony

from Mother stating Child’s designated school bus stop was “GOODFELLOW BLVD & LALITE

AVE (NW CRNR)” indicating the northwest corner of that intersection. The record shows

beginning on the first day of school in August until October 22, 2019, First Student picked up and

dropped off Child at the northwest corner of Goodfellow and Lalite without incident and without

Child having to cross Goodfellow to return home. The jury was shown the ten-page route sheet

First Student prepared containing turn-by-turn driving instructions for both the morning and

afternoon runs of Child’s school bus route. The jury was also shown the handwritten list of

intersections given to Richardson. But, on October 24, 2019, following the handwritten list of

intersections, Richardson dropped off Child at the southeast corner of Goodfellow and Lalite. The

18 It bears repeating: “The care which a school bus driver must exercise toward a school bus passenger is proportionate to the degree of danger inherent in the passenger’s youth and experience.” Plummer, 818 S.W.2d at 321 (quoting Slade v. New Hannover Cnty. Bd. of Educ., 178 S.E.2d 316, 321 (N.C. App. 1971)). Child was merely nine years old and visibly shaken when he had to cross Goodfellow to return home the day before when being dropped off at the wrong corner of Goodfellow. Child also darted from the bus before being struck by the passing car.

32 video shows Child darting down the bus stairs and running around to the front of the school bus to

begin crossing two lanes of traffic on Goodfellow without a crosswalk and being struck by the

passing car disregarding the school bus’s stop arm.

Furthermore, despite acknowledging the route sheet is for the school bus drivers, and it

was generated with safety considerations such as knowing which side of the street Child lived,

Manager still maintained Richardson did not need the route sheet. Despite testifying Richardson

only needed the intersections, Manager admitted the handwritten list of intersections was incorrect,

contained stops not on the route sheet, excluded certain stops, and did not indicate which corner

the students were to be dropped off. Moreover, despite admitting there are situations in which

certain students may not cross specific streets, requiring specified drop-off corners, Manager

admitted Richardson was unfamiliar with the students. Finally, Manager testified:

Q: And [First Student] takes [transporting students] very seriously, correct?

A: Correct.

Q: That’s because children can be injured if they’re dropped off at a different location than they should be right?

A: Safety is considered in everything we do.

...

Q: Okay. In other words, children can be injured if they’re dropped off at a different location than they should be, and your answer now and then was “yes”?

Thus, under the standard of review, Child presented a submissible case by offering

evidence from which the jury could reasonably find Child’s injuries were the “foreseeable, natural

product of [First Student’s] original negligence” of failing to provide Richardson with sufficient

information to drop off Child at his designated school bus stop rather than the passing car’s

33 criminal conduct. Plummer, 818 S.W.2d at 321. Further, sufficient evidence supports the jury’s

implicit finding but for First Student not providing Richardson with sufficient information of

Child’s designated school bus stop location, Child would not have been injured by a passing car

while crossing the two lanes of traffic on Goodfellow without a crosswalk. The passing car’s

conduct does not constitute an intervening superseding cause, but only constitutes a contributing

cause, because without First Student’s negligence, Child would not have been on the left side of

the bus.19

4. Injuries & Damages

Finally, to prevail on his negligence claim, Child must establish “injury” or “actual

damages.” Payne, 543 S.W.3d at 118 (first quoting Peters, 489 S.W.3d at 793; then quoting

Friday, 536 S.W.3d at 239). As reflected in the record, it is undisputed Child sustained injuries

because of First Student’s negligence. Child suffered a right ankle sprain and a left ankle fracture.

Child’s left ankle required surgery to place pins for stabilization, which were surgically removed

later. Child required physical therapy. Child also underwent a skin graft surgery to alleviate pain

at the surgical scar site, and therapy as he encountered emotional difficulty crossing streets,

walking on parking lots with moving cars, and riding the bus to and from school.

Thus, Child has made a submissible case for negligence against First Student. Child

established First Student owed him a legal duty separate from the duty to drop him off at a

19 The dissenting opinion states, “the general rule is that businesses have no duty to protect customers from the criminal acts of unknown third persons.” Emphasis added. The dissenting opinion then cites to Wood v. Centermark Properties, Inc., 984 S.W.2d 517, 523–24 (Mo. App. E.D. 1998) which states, “Generally, the owner of a business property has no duty to protect an invitee from a deliberate criminal attack by a third person.” Emphasis added. The dissenting opinion’s reliance on premise liability cases concerning business properties owners and the duties owed to their customers or invitees is misplaced because the issue in this case does not involve a business property and their customer or invitee. The dissenting opinion’s finding “the trial court record is bereft of any evidence of any prior crime, let alone numerous, recent, or similar crimes, at the southeast corner of Goodfellow and Lalite or anywhere in the vicinity” misunderstands the foreseeable danger at issue here. It is not the intersection that is the foreseeable danger. The foreseeable danger is the passing car which struck Child.

34 “reasonably safe” place as contemplated by Instruction No. 7. Child demonstrated First Student

breached that duty because it was foreseeable he would be struck by a passing car while crossing

the street when his school bus driver was not provided with sufficient information to drop him off

at his designated school bus stop. Child proved First Student, rather than the passing car’s criminal

conduct, caused his injuries because they were a foreseeable, natural product of First Student’s

negligence, and he sustained damages.

Because Child made a submissible case establishing negligence, the circuit court did not

err in overruling First Student’s JNOV motion.

Points III and IV are denied.

Point I: McGinnis Doctrine

In Point I, First Student argues the circuit court erred in overruling its JNOV motion

because it cannot be liable as a matter of law given the jury’s verdict in Instruction No. 7 under

the McGinnis doctrine. First Student claims the jury’s verdict under this instruction found

Defendants dropped off Child at a reasonably safe place, which was the “only” legal duty owed

by them. First Student also argues because both it and Richardson were exonerated for fulfilling

their “only” legal duty to Child, the McGinnis doctrine relieved First Student of any additional or

separate liability submitted under Instruction No. 8.

Child argues the circuit court properly overruled First Student’s JNOV motion because he

presented substantial evidence supporting his negligence claim against First Student. Child claims

First Student mischaracterizes the jury’s finding under Instruction No. 7 because the jury had to

find both First Student and Richardson were negligent for him to prevail. Child contends the jury

could have reasonably concluded the southeast corner was not a reasonably safe place to drop him

35 off, but First Student and Richardson were not both negligent because First Student did not provide

Richardson with a route sheet with the northwest corner designated stop information, thus relieving

Richardson of liability. Child further argues the McGinnis doctrine only applies when a tort claim

is based on respondeat superior. Here, Child argues he presented substantial evidence supporting

a submissible case of negligence against First Student unrelated to any negligence by Richardson.

“Under the McGinnis [d]octrine, ‘when a claim is submitted on the theory of respondeat

superior and the jury returns inconsistent verdicts, exonerating the employee, but holding against

the employer, the court must grant the employer judgment notwithstanding the verdict.’” Harrison

v. Harris-Stowe State Univ., 626 S.W.3d 843, 854 (Mo. App. E.D. 2021) (quoting Burnett v.

Griffith, 739 S.W.2d 712, 713 (Mo. banc 1987)). But, “the McGinnis [d]octrine does not apply

unless the employer’s liability depends entirely on the conduct of the exonerated employee.” Id.

(emphasis added).

Contrary to First Student’s argument, the McGinnis Doctrine is inapplicable. As explained,

dropping off Child at a reasonably safe place may be one of the duties owed by First Student, but

the law does not foreclose courts from finding other duties. See generally Hoffman, 176 S.W.3d at

706. First Student’s negligent liability submitted under Instruction No. 8 did not depend on

Richardson’s conduct. Rather, Instruction No. 8 sets forth a separate, distinct theory of First

Student’s negligent liability: whether First Student had a duty to provide Child’s school bus driver,

Richardson, with sufficient information as to Child’s designated school bus stop location given the

foreseeability of danger to a child dropped off at a different location other than their designated

school bus stop location. Thus, the McGinnis doctrine does not preclude First Student from being

36 found negligent under Instruction No. 8. The circuit court did not err in overruling First Student’s

JNOV motion on this claim.

Point I is denied.

Point II: McHaffie Rule

In Point II, First Student argues the circuit court erred in overruling its JNOV motion

regarding its direct negligence because Instruction No. 8 improperly submitted an additional,

independent theory of imputed liability in violation of the McHaffie rule. First Student maintains

the McHaffie rule precluded Child’s additional direct negligence claim from being submitted to

the jury once First Student admitted Richardson was acting in the course and scope of her

employment and the “only” legal duty owed to Child was to drop him off in a reasonably safe

place.

Child argues the circuit court properly overruled First Student’s JNOV motion because the

McHaffie rule does not apply to his direct negligence claim as the claim is not derivative or

dependent upon Richardson’s alleged negligence. Child argues his negligence claim submitted in

Instruction No. 8 was not based on respondeat superior liability or on Richardson’s negligence.

Rather, Instruction No. 8 was based on First Student’s failure to inform Richardson about the route

details, thereby breaching its duty given the foreseeable danger of a child being struck by a passing

car, which caused or contributed to cause Child’s injuries.

Under the McHaffie rule, “once an employer has admitted respondeat superior liability for

a driver’s negligence, it is improper to allow a plaintiff to proceed against the employer on any

other theory of imputed liability.” McHaffie, 891 S.W.2d at 826. In other words, “McHaffie

37 prohibits a plaintiff from going to the jury on multiple alternative theories of imputed liability.”

Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 206 (Mo. banc 2014). “[I]t may

be possible that an employer or entrustor may be held liable on a theory of negligence that does

not derive from and is not dependent on the negligence of an entrustee or employee.” McHaffie,

891 S.W.2d at 826.

Here, Instruction No. 8 is not premised on a theory of imputed liability or on Richardson’s

negligence. Cf. Coomer, 437 S.W.3d at 206 (the plaintiff was still required to show an employee

was negligent before the jury can award any damages under claims of negligent training or

supervision). Instead, as posited by McHaffie, Instruction No. 8 sets forth a separate theory of

negligent liability: whether First Student had a duty to provide Child’s school bus driver,

Richardson, with sufficient information as to Child’s designated school bus stop location given the

foreseeability of danger to him when dropped off at a different location than his designated school

bus stop. Thus, the McHaffie rule does not preclude First Student from being found negligent under

Instruction No. 8. The circuit court did not err in overruling First Student’s JNOV motion on this

claim.

Point II is denied.

Conclusion

_______________________________ Philip M. Hess, Judge

Robert M. Clayton III, P.J. concurs. Cristian M. Stevens, J. dissents in a separate opinion.

38 In the Missouri Court of Appeals Eastern District DIVISION ONE

D.J., By and Through ) No. ED111487 His Next Friend, ROSE JACKSON, ) ) Plaintiff/Respondent, ) Appeal from the Circuit Court ) of the City of St. Louis ) 1922-CC11968 vs. ) ) ) FIRST STUDENT, INC., ) Honorable Rex M. Burlison ) Appellant, ) ) and ) ) TOMIKA L. RICHARDSON, ) ) Defendant. ) Filed: June 25, 2024

DISSENTING OPINION

I respectfully dissent from the majority’s opinion affirming the judgment of the circuit

court. The majority bases its holding that the circuit court did not err in denying First Student’s

motion for JNOV on two conclusions, both of which are necessary to its outcome: (1) we may

create legal duties independent of the established legal duty in “bus drop-off” cases; and (2) there

was a foreseeable likelihood that the particular intervening criminal acts of the hit-and-run driver

would cause injury to Plaintiff. Neither the record nor the law supports these conclusions or the

majority’s holding. Plaintiff was struck by a hit-and-run driver after alighting from a school bus at the

southeast corner of Goodfellow and Lalite on October 24, 2019. The substitute bus driver,

Richardson, activated the eight-way flashing amber lights and extended the stop arm on the

school bus to warn motorists that students were alighting from the bus. Plaintiff exited and

crossed in front of the bus. The hit-and-run driver, who was stopped behind the bus, suddenly

accelerated around the left side of the bus, crossing the double-yellow line into the oncoming

traffic lane. Richardson laid on the bus horn, but the vehicle struck Plaintiff, continued through

the stop sign at the intersection, and sped away. Plaintiff suffered a fractured left ankle and a

sprained right ankle and limped back to the bus. The hit-and-run driver was never identified.

This action for personal injuries then was filed on behalf of Plaintiff against First Student

and Richardson. The jury found that Plaintiff was dropped off at a reasonably safe location in

favor of First Student and Richardson on the negligence claim submitted in Instruction No. 7.

But the jury also returned a verdict in favor of Plaintiff on the direct negligence claim against

First Student submitted in Instruction No. 8 and awarded Plaintiff $1.3 million in compensatory

damages. Instruction No. 8 asked the jury to determine whether First Student was negligent by

failing to: provide Richardson with a copy of the route sheet; or tell Richardson that the route

sheet stated “NW CRNR”; or tell Richardson that Plaintiff’s grandmother’s house was located on

Lalite Avenue west of Goodfellow. The circuit court entered judgment consistent with the jury’s

verdicts. First Student timely filed its motion for JNOV, which was heard and denied.

As the majority correctly states, in reviewing the circuit court’s decision on a motion for

judgment notwithstanding the verdict, this Court determines whether the plaintiff made a

submissible case by offering evidence to support every element necessary for liability. Harner v.

Mercy Hospital Joplin, 679 S.W.3d 480, 483 (Mo. banc 2023). In any negligence action, the

2 plaintiff must establish the defendant owed a duty of care to the plaintiff, the defendant breached

that duty, and the defendant’s breach proximately caused the plaintiff’s injury. Id. at 484.

First Student raises four points on appeal. Because Points I and IV are dispositive, I do

not address Points II and III.

Point I

In Point I, First Student argues the circuit court erred in denying its motion for JNOV

because the jury determined that First Student and Richardson dropped Plaintiff off at a

reasonably safe place, which is the only legal duty owed to Plaintiff in this kind of case, and

therefore First Student could not be held liable on the direct negligence claim as a matter of law.

When the jury returned a verdict in favor of both Defendants on Instruction No. 7, the

jury explicitly determined that Plaintiff was dropped off at a safe place. Under Missouri law, the

only legal duty of a bus company to its passenger in a “bus drop-off” case is to select and stop its

bus at a place “reasonably safe” for the passenger to alight. Goedecke v. Bi-State Dev. Agency of

Missouri-Illinois, 412 S.W.2d 189, 192 (Mo. App. St. Louis 1967) (explaining that bus

company’s “only duty was to select and stop its bus at a place reasonably safe for [plaintiff] to

alight”); Sanford v. Bi-State Dev. Agency, 705 S.W.2d 572, 575 (Mo. App. E.D. 1986) (stating

general rule that “once a passenger alights at a safe location, the carrier is no longer liable for the

injuries sustained by the former passenger in crossing the street,” and collecting cases); Graeff v.

Baptist Temple of Springfield, 576 S.W.2d 291, 307 (Mo. banc 1978) (distinguishing cases in

which plaintiff alighted at safe location where bus stopped in unsafe location over center line

where traffic could pass on left or right, bus driver failed to deploy stop arm despite that child

plaintiff had to cross street to get home, and bus driver saw vehicle passing on left before child

disembarked); Plummer v. Dace, 818 S.W.2d 317, 320 (Mo. App. E.D. 1991) (“It is well settled

3 in Missouri that the duty of a common carrier to exercise the highest degree of care for its

passengers continues at least until the passenger has been discharged at a reasonably safe

place.”); Moore ex rel. Moore v. Bi-State Dev. Agency, 87 S.W.3d 279, 293–94 (Mo. App. E.D.

2002) (abrogated on unrelated grounds). This legal duty of the bus company can be fulfilled only

through the bus driver. Goedecke, 412 S.W.2d at 192.

Accordingly, when, as here, a jury determines a bus driver fulfilled her legal duty to drop

a passenger at a reasonably safe place, there can be no breach of that duty by the bus company,

and a plaintiff is not entitled to submit a claim against the bus company on any other theory of

negligence. Id. Because the jury determined First Student fulfilled its legal duty to Plaintiff in

Instruction No. 7, First Student is entitled to JNOV on the direct negligence claim submitted in

Instruction No. 8.

In challenging this argument, Plaintiff insists the jury did not find that First Student and

Richardson dropped Plaintiff off at a reasonably safe place. Specifically, Plaintiff argues, “A jury

could have reasonably concluded that the southeast corner was not a reasonably safe drop off

location because it required [Plaintiff] to cross Goodfellow to get home, but that [Richardson]

and First Student were not both negligent.” Plaintiff’s argument fails.

Instruction No. 7 provided in relevant part:

Your verdict must be for [Plaintiff] and against Defendants Tomika Richardson and First Student, Inc. if you believe:

First, [Plaintiff] was not dropped off at the northwest corner of Goodfellow and Lalite on October 24, 2019; and

Second, the southeast corner of Goodfellow and Lalite was not reasonably safe; and

4 Fourth, such negligence directly caused or directly contributed to cause damage to [Plaintiff] . . . .”

In its verdict form “[o]n the claim of Plaintiff D.J. for personal injuries under Instruction

Number 7 against Defendants Tomika Richardson and First Student, Inc.,” the jury found “in

favor of: Defendants Tomika Richardson and First Student, Inc.”

There is no record of Plaintiff objecting to Instruction No. 7 or the verdict form, or that

they listed Defendants in the conjunctive. Nor does Plaintiff challenge the instructions on appeal,

and for good reason. As stated, in cases in which a passenger is injured upon alighting at a bus

stop, the sole recognized legal duty of the bus company is to select and stop at a location that is

“reasonably safe” for the plaintiff to alight. Plummer, 818 S.W.2d at 320. Because that duty can

be fulfilled only through the bus driver, Goedecke, 412 S.W.2d at 192, Plaintiff’s suggestion that

the jury found Richardson or First Student, but not both, negligent fails as a matter of law.

Instruction No. 7 otherwise specifically required a finding by the jury that the southeast corner of

Goodfellow and Lalite was not reasonably safe for the jury to find Richardson and First Student

negligent. By returning a verdict in favor of Richardson and First Student on the facts of this

case, the jury necessarily determined the drop-off location was reasonably safe.

In Plummer, the plaintiff, a six-year-old student, was injured when she was dropped off at

the wrong school bus stop on the east side of Highway 185, crossed the street to the west side of

the highway, the same side on which her house was located, and was struck by a vehicle after the

bus departed. Id. at 318. The plaintiff filed suit against the bus driver for negligently dropping

her off at an unsafe place. Id. The circuit court granted summary judgment in favor of the bus

driver, finding that any danger caused by the bus driver in dropping off the plaintiff ceased to be

the proximate cause of her injuries when she got to the “safe” side of the street and the bus

departed. Id. at 320.

5 In reversing the circuit court, our Court analyzed and resolved two issues: (1) whether the

plaintiff was dropped off at a reasonably safe place to alight from the bus, and if not, (2) whether

the bus driver’s conduct was too remote or was the proximate cause of the plaintiff’s injuries. Id.

With respect to the first issue, what constitutes a “reasonably safe” place depends on the

circumstances of each case, and the evidence presented. Id. Under the facts presented in the

summary judgment pleadings, the Plummer Court concluded the circuit court erred in finding

that the plaintiff was dropped off at a safe place. Id. at 320–21. Plummer stands for the

proposition that the duty owed to a student alighting from a school bus is to drop him or her off

at a reasonably safe place. If the legal duty has been fulfilled, the analysis ends. If not, then the

analysis continues to determine proximate causation. Id. at 321.

The pivotal difference between Plummer, a summary judgment case, and the present case

is that, here, the trial jury found Plaintiff was dropped off at a reasonably safe place and,

therefore, that Richardson and First Student had fulfilled their legal duty. Once the jury made

that determination, there could be no breach of duty to support the claim of negligence under

Plaintiff maintains that “First Student owed a duty to provide the information needed to

prevent a foreseeable incident like this from happening.” Plaintiff cites no case law to support

this new legal duty because there is none, consistent with the binding case law governing bus

drop-off cases. 1 This makes perfect sense considering that, if, as the jury determined, Plaintiff

was dropped off at a safe place, then whether First Student failed to provide additional

1 In footnote 16, the majority distinguishes some of the above cases because they do not involve school buses. Like Plaintiff, the majority cites no cases involving school buses and the “independent” duty it finds, because there are none.

6 information to Richardson is irrelevant. There simply is no duty under Missouri law to drop a

student off at the safest possible place, or even an arguably safer place.

The majority nevertheless finds an additional duty arising out of First Student’s contract

with KIPP, assuming a duty by its conduct, and/or public policy considerations: “a duty to

provide Plaintiff’s school bus driver with sufficient information as to Plaintiff’s designated

school bus drop-off location to avoid a foreseeable injury.” 2 In footnote 11, the majority qualifies

this new duty:

This Court is not making a broad public policy statement that all school bus companies must drop off all school children at a residential corner such that no child ever crosses through the danger zone for passing cars. That is not the duty we are examining or deciding. This opinion addresses the duty to inform drivers of existing designated drop-off locations for specific students, given their age and residential location.

Even with its qualification, the majority cannot overcome the fact that Plaintiff was

dropped off at a reasonably safe place and, therefore, neither First Student nor Richardson was

negligent under Instruction No. 7. Of course, the jury’s finding that Plaintiff was dropped off at a

reasonably safe place had to account for Plaintiff’s “age and residential location,” among the

other relevant circumstances of this case. Accordingly, the inquiry ends and First Student could

2 In footnote 4, the majority points out that, because the only established duty in a case like this is to drop Plaintiff off at a reasonably safe place, I do not otherwise address the majority’s lengthy analysis discovering First Student’s “independent” duty in the KIPP contract, KIPP’s request for proposal, First Student’s “Commercial Driver’s License Training Program Participant Study Guide,” and various sections of the Missouri Code of State Regulations. Notably, neither does Plaintiff. Plaintiff did not cite any of these sources before the circuit court in support of Instruction No. 8 or in the argument section of its appellate brief in support of the duty cobbled together by the majority. Instead, Plaintiff cites “common law factors” to support its argument that “First Student owed a duty to provide the information needed to prevent a foreseeable incident like this from happening.” Regardless of the source of this new duty, I fully address below the reasons the criminal acts of the hit-and-run driver were not reasonably foreseeable, which is all that matters.

7 not be liable on the direct negligence claim in Instruction No. 8. See Id. The circuit court erred in

denying First Student’s motion for JNOV.

Point IV

Point IV offers another, independent basis on which the circuit court erred in denying the

motion for JNOV. In Point IV, First Student points out that not only must a plaintiff prove that a

defendant’s negligent conduct amounted to a violation of some duty owed to him, but also that

the conduct was the proximate cause of the plaintiff’s injury.

As already established, the only recognized duty owed to Plaintiff by First Student was to

select and stop at a reasonably safe place for Plaintiff to alight, Plummer, 818 S.W.2d at 320,

and First Student met that duty. Even if that was not the only duty of First Student to Plaintiff,

and even if First Student had not met that duty, it still would not be liable for the criminal acts of

the hit-and-run driver. In our system of justice, civil defendants generally are not liable for the

intervening criminal acts of third parties. See, e.g., Harner, 679 S.W.3d at 484; L.A.C. ex rel.

D.C. v. Ward Parkway Shopping Center Co., L.P., 75 S.W.3d 247, 257 (Mo. banc 2002); Ford v.

Monroe, 559 S.W.2d 759, 762 (Mo. App. 1977); Dix v. Motor Mkt., Inc., 540 S.W.2d 927 (Mo.

App. 1976).

The Supreme Court of Missouri recently reiterated, “As a general rule, businesses have

no duty to protect invitees from the criminal acts of unknown third persons.” Harner, 679

S.W.3d at 484 (citing L.A.C., 75 S.W.3d at 257). On more than one occasion, this Court has

listed the reasons for that rule, including:

“judicial reluctance to tamper with a traditional, common law concept; the notion that the deliberate criminal act of a third person is the intervening cause of harm to another; the difficulty that often exists in determining the foreseeability of criminal acts; the vagueness of the standard the owner must meet; the economic consequences of imposing such a duty; and conflict with the public policy that

8 protecting citizens is the government’s duty rather than a duty of the private sector.”

Wood v. Centermark Properties, Inc., 984 S.W.2d 517, 524 (Mo. App. E.D. 1998) (quoting

Faheen v. City Parking Corp., 734 S.W.2d 270, 272 (Mo. App. E.D. 1987)).

The Supreme Court and this Court most often have applied this general rule in cases in

which invitees were injured by the criminal acts of third persons on business owners’ premises.

See Wood, 984 S.W.2d at 523-24 (“Generally, the owner of a business property has no duty to

protect an invitee from a deliberate criminal attack by a third person.”). A limited exception to

the rule nonetheless recognizes a duty on the part of businesses to protect invitees to their

premises from the criminal actions of unknown third persons when “there is a foreseeable

likelihood that particular acts or omissions will cause harm or injury.” L.A.C., 75 S.W.3d at 257;

Madden v. C&K Barbeque Carryout, Inc., 758 S.W.2d 59, 62 (Mo. banc 1988).

Plaintiff argues that First Student “knows that this exact situation can occur when

students are dropped off at the wrong location.” The majority concludes, “It is not unexpected or

freakish that a driver might disregard traffic laws and strike a pedestrian. Here, any passing car

would necessarily do so in violation of section 304.050.1(1), which requires motorists to stop.”

(internal alteration and citation omitted). Suffice it to say the foreseeability that a hit-and-run

driver may strike any pedestrian, at any intersection, at any time is not enough to meet the

limited exception.

When the Supreme Court of Missouri created the exception to the rule that businesses are

not liable for the criminal acts of unknown third persons, it required “evidence of prior criminal

incidents sufficient to alert management to the possibility that its patrons might be in danger.”

Madden, 758 S.W.2d at 62 (citing Virginia D. v. Madesco Investment Corp., 648 S.W.2d 881,

888 (Mo. banc 1983)); see also L.A.C., 75 S.W.3d at 258 (“Violent crimes are foreseeable if the

9 premises have been the site of other prior violent crimes . . . .”). That is, the exception requires,

among other things:

“prior specific incidents of violent crimes on the premises that are sufficiently numerous and recent to put a defendant on notice, either actual or constructive, that there is a likelihood third persons will endanger the safety of the defendant’s invitee;” and . . . “the incident causing the injury must be sufficiently similar in type to the prior specific incidents occurring on the premises that a reasonable person would take precautions to protect his or her invitees against that type of activity.”

Wood, 984 S.W.2d at 524 (quoting Faheen, 734 S.W.2d at 273-74).

The cases providing examples of specific incidents of crime sufficiently numerous,

recent, and similar to impose a duty on a business to protect a patron from criminal activity are

ubiquitous. See, e.g., L.A.C., 75 S.W.3d at 253-54, 259 (holding reports of numerous violent and

non-violent crimes against female victims rendered rape of plaintiff foreseeable and imposed

duty on defendant to protect customers); Madden, 758 S.W.2d at 61-63 (observing allegations of

armed robbery, purse snatching, and multiple thefts “might not be sufficient to establish a duty of

care,” but holding additional armed robberies, assaults, and flourishing over three years

sufficient to establish duty); Wood, 984 S.W.2d at 525 (collecting cases); Brown v. National

Supermarkets, Inc., 679 S.W.2d 307, 309-10 (Mo. App. E.D. 1984) (holding 16 armed robberies,

seven strong arm robberies, and 136 other crimes over two years gave rise to duty to protect

plaintiff from assault by unknown assailant); cf. Wood, 984 S.W.2d at 524-25 (holding 80 violent

crimes over five years insufficiently numerous, similar, and recent to put defendant on notice of

duty to protect decedent from carjacking, abduction, and murder).

This case is not one of them. In fact, here, the trial record is bereft of any evidence of any

prior crime, let alone numerous, recent, or similar crimes, at the southeast corner of Goodfellow

and Lalite or anywhere in the vicinity. To the contrary, the evidence was that the intersection is

10 in a residential neighborhood with two lanes of travel on both Goodfellow and Lalite and stop

signs on all four corners. A yellow sign stating “STOP AHEAD” warns drivers as they near the

southeast corner. That corner also is a designated drop-off location for Bi-State buses. Typically,

Plaintiff was dropped off at the northwest corner and had to cross two lanes of traffic on Lalite to

get home. But the day before the incident at issue here, Richardson dropped Plaintiff off at the

southeast corner. All drivers obeyed the four-way stop signs and the eight-way flashing lights

and the stop arm of the school bus, and Plaintiff safely crossed Goodfellow, instead of Lalite.

Under these circumstances, according to the controlling precedent of this Court and of the

Supreme Court, First Student could not be liable for the criminal assault of Plaintiff by the hit-

and-run driver.

In footnote 19, the majority distinguishes these cases as “premise liability cases

concerning business properties owners and the duties owed to their customers or invitees,” and

points out that First Student’s bus stops are not on premises controlled by First Student. The

majority does not explain how that distinction makes First Student more, not less, readily liable

for the criminal acts of unknown third persons. See Wood, 984 S.W.2d at 524 (“We also have

held that to be considered under the violent crimes exception, the incident must occur on

premises controlled by the defendant.”). Even assuming the majority is correct that premises

liability cases do not apply here, the default rule remains that civil defendants generally are not

liable for the intervening criminal acts of third parties. In any event, premises liability cases

apparently offer some guidance given the majority’s repeated, in-depth reliance on Taticek v.

Homefield Gardens Condominium Association, 502 S.W.3d 645 (Mo. App. E.D. 2016), a

premises liability case, for the duty it finds here.

11 The majority continues in Footnote 19: “It is not the intersection that is the foreseeable

danger. The foreseeable danger is the passing car which struck Child.” This observation is

contrary to the rest of the majority opinion and serves only to demonstrate my point. The rest of

the majority opinion erroneously identifies the danger as First Student’s failure to drop Plaintiff

off at the designated location. My point is that the danger was the criminal conduct of the hit-

and-run driver, which could have occurred at any location and, according to the applicable

caselaw, was not reasonably foreseeable.

For the same reasons, the criminal actions of the hit-and-run driver, and not any

negligence on the part of First Student, were the proximate cause of Plaintiff’s injuries. While

Plaintiff acknowledges the law of intervening cause, he entirely ignores the body of law

regarding criminal acts of third parties intervening in the causal chain. See, e.g., Ford, 559

S.W.2d at 762; Dix, 540 S.W.2d 927; see also Wiener v. Southcoast Childcare Centers, Inc., 32

Cal. 4th 1138, 88 P.3d 517, 12 Cal. Rptr. 3d 615 (Cal. 2004) (holding child care center not liable

for third person’s intentional criminal act of driving car onto playground and killing children

because criminal act was unforeseeable when there had been no reported prior similar criminal

acts at or near child care center). According to that long-established body of law:

A fortiori, if no duty exists, there can be no violation of a duty upon which to predicate a recovery. On the other hand if it be assumed, arguendo, that defendant was negligent in the first instance, it is a general principle that if a criminal act by a third person intervenes and produces plaintiff’s injury which was not intended by defendant and could not have reasonably been foreseen by him, the causal chain between the defendant’s negligence and the plaintiff’s injury is broken.

Ford, 559 S.W.2d at 762. As already explained at length, First Student met its only duty to

Plaintiff. Even if that was not the case, the requisite evidence that the criminal act perpetrated

against Plaintiff was reasonably foreseeable is nowhere to be found in the record. Therefore, the

causal chain between First Student’s alleged negligence and Plaintiff’s injuries is broken.

12 The legal cause of Plaintiff’s injuries was not that Richardson was not provided a route

sheet or Plaintiff’s grandmother’s address, or even that Plaintiff had to cross the street. 3

Plaintiff’s injuries are solely attributable as a matter of law to the unforeseen criminal actions of

the hit-and-run driver who crossed the double-yellow line into the oncoming traffic lane, ran

through the eight-way flashing lights on the school bus, struck Plaintiff, ran through the stop sign

at the intersection, and sped away, fleeing the scene. 4

On the trial record here and pursuant to controlling precedent, there was no foreseeable

likelihood that Plaintiff would be injured by these particular intervening criminal acts of the hit-

and-run driver at the southeast corner of Goodfellow and Lalite. To conclude otherwise would

eviscerate the rule that defendants have no duty to protect patrons from the criminal acts of

unknown third persons and that such criminal acts are the intervening proximate cause of any

resulting injuries.

Because the jury determined that First Student satisfied its legal duty to Plaintiff by

dropping him off at a reasonably safe place in Instruction No. 7, the circuit court erred in failing

to enter JNOV in favor of First Student on Plaintiff’s direct negligence claim as a matter of law

3 In fact, the jury determined that the southeast corner was a reasonably safe drop-off location, despite Plaintiff’s having to cross the street, and the majority declines to make “a broad public policy statement that all school bus companies must drop off all school children at a residential corner such that no child ever crosses through the danger zone for passing cars.” 4 The majority argues that requiring Plaintiff to cross the street on the left side of the bus created the conditions for the injury, which First Student should have foreseen. I would argue that even if Plaintiff was dropped off at the designated stop, remained on the right side of the bus, and was required to cross Lalite as usual, which the majority concedes is not prohibited by State law or even the duties it imposes here, he still would be susceptible to the unpredictable criminal acts of a hit-and-run driver. In both situations, such criminal conduct could not be foreseen or prevented and the criminal actions of the driver, not any alleged negligence on the part of First Student, would be the direct, proximate, and immediate cause of Plaintiff’s injury.

13 in Instruction No. 8. Moreover, First Student had no duty to protect Plaintiff against intervening

criminal acts, which broke the causal connection between First Student’s alleged negligence and

Plaintiff’s injuries. For these reasons, I would reverse the judgment rendered against First

Student in Instruction No. 8 and remand to the circuit court with directions to enter JNOV in

favor of First Student.

Cristian M. Stevens, Judge