Sallee v. Watts

2014 Ohio 717

• Court: Ohio Court of Appeals
• Decided: February 28, 2014
• Docket: C-130122
• Status: Published

Opinion

[Cite as Sallee v. Watts, 2014-Ohio-717.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

AMBER SALLEE, a minor, by her : APPEAL NO. C-130122 parent and next friend, Pamela Petti, TRIAL NO. A-1201528 : Plaintiff-Appellant, O P I N I O N. : and : PAMELA PETTI, : Plaintiff, : vs. : STEPHANIE WATTS, : LISA KRIMMER, : and : ALLSTATE INSURANCE COMPANY, : Defendants, : and : THREE RIVERS LOCAL SCHOOL DISTRICT, :

Defendant-Appellee. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 28, 2014

O’Connor, Acciani & Levy LPA and Dennis C. Mahoney, for Plaintiff-Appellant,

David J. Balzano, for Defendant-Appellee.

Please note: this case has been removed from the accelerated calendar. O HIO F IRST D ISTRICT C OURT OF A PPEALS

D INKELACKER , Judge.

{¶1} In one assignment of error, plaintiff-appellant Amber Sallee, a minor,

appeals the decision of the trial court that defendant-appellee Three Rivers Local

School District was entitled to immunity in this personal-injury case. Because the

trial court erred in determining that this case did not involve the negligent operation

of a motor vehicle, we reverse the judgment of the trial court.

{¶2} Sallee was in the first grade, attending classes in the Three Rivers

Local School District (“Three Rivers”) when the accident at issue occurred. At the

end of the school day, defendant Lisa Krimmer, the driver of the bus that Sallee

regularly rode home, dropped Sallee off at her designated stop. Instead of crossing

the street to her residence, Sallee lingered at the stop with another student. Sallee

and the other student then ran down the street. Krimmer attempted to get Sallee’s

attention by honking the horn, but was unsuccessful. Unable to get Sallee to proceed

home, Krimmer called in to inform school officials that Sallee had left with the other

student. Krimmer then continued with her route. When the bus was a few blocks

away, Sallee attempted to cross the street and was struck by a car driven by

defendant Stephanie Watts.

{¶3} Through her mother, plaintiff Pamela Petti, Sallee filed suit seeking

damages for personal injuries she sustained as a result of the accident. Petti also

asserted a loss-of-consortium claim. Three Rivers filed a motion for summary

judgment, claiming that it was entitled to immunity for the claims made by Sallee

and Petti. The trial court granted Three Rivers’s motion.

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Movement of School Bus as Operation of a Motor Vehicle

{¶4} R.C. 2744.02(A)(1) confers immunity upon political subdivisions for

“injury * * * allegedly caused by any act or omission of the political subdivision or an

employee of the political subdivision in connection with a governmental or

proprietary function” unless one of the exceptions listed in R.C. 2744.02(B) applies.

Evans v. Cincinnati, 1st Dist. Hamilton No. C-120726, 2013-Ohio-2063, ¶ 5. Neither

party in this case contests that Three Rivers was engaged in a governmental function

while providing transportation for its students to and from school. See Vargas v.

Columbus Pub. Schools, 10th Dist. Franklin No. 05AP-658, 2006-Ohio-7108, ¶ 16,

citing Doe v. Dayton City School Dist. Bd. of Edn. 137 Ohio App.3d 166, 170, 738

N.E.2d 390 (2d Dist.1999). Therefore, the question is whether there is some

exception among those listed in R.C. 2744.02(B) that applies.

{¶5} There are several exceptions to sovereign immunity listed in R.C.

2744.02(B). The one at issue in this case, R.C. 2744.02(B)(1), states that:

political subdivisions are liable for injury * * * caused by the negligent

operation of any motor vehicle by their employees when the employees

are engaged within the scope of their employment and authority.

{¶6} In its analysis of the issue, the trial court relied on two decisions that

appeared to settle the matter, Glover v. Dayton Pub. Schools, 2d Dist. Montgomery

No. 17601, 1999 Ohio App. LEXIS 3706 (Aug. 13, 1999), and Day v. Middletown-

Monroe City School Dist., 12th Dist. Butler No. CA99-11-186, 2000 Ohio App. LEXIS

1868 (May 1, 2000). In those cases, the Second and Twelfth Appellate Districts

determined that claims against school districts involving students who had exited

from buses did not involve the operation of a motor vehicle where the bus was no

longer present at the time the child was injured. As the Twelfth Appellate District

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concluded, “Without [alleging that the bus was present when the injury occurred],

there can be no legal basis for asserting that [the child’s] injuries resulted from the

‘operation of any motor vehicle.’ ” Day at *10. Applying these cases, the trial court

concluded that the issue was the driver’s “conduct in not supervising the child by

insuring that she crossed the street before the bus proceeded to his next stop,”

because the injury was not “related to [the driver’s] actual driving of the motor

vehicle.”

{¶7} The problem with the trial court’s analysis is that it fails to consider

the Ohio Supreme Court’s more recent decision that defined the “operation of any

motor vehicle” in the context of R.C. 2744.02(B)(1). In 2009, the court determined

that the negligent operation of a school bus pertains “to negligence in driving or

otherwise causing the vehicle to be moved.” Doe v. Marlington Local School Dist.

Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 26. Sallee argues

that Krimmer “operated a motor vehicle” when she drove away from Sallee’s bus

stop. She further argues that this operation was negligent per se because it

constituted a violation of R.C. 4511.75(E). R.C. 4511.75(E) provides that “[n]o school

bus driver shall start the driver's bus until after any child * * * who may have alighted

therefrom has reached a place of safety on the child's * * * residence side of the

road.”

{¶8} There is no dispute that Krimmer drove away from Sallee’s bus stop

before Sallee had safely crossed to her residence side of the street. Therefore, it is

clear from the record that Krimmer violated R.C. 4511.75(E). But the question

remains whether Krimmer’s violation of the statute constituted negligence per se.

{¶9} Negligence per se requires a legislative enactment that imposes a

specific duty for the protection of others, and a person's failure to observe that duty.

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Robinson v. Bates, 160 Ohio App.3d 668, 2005-Ohio-1879, 828 N.E.2d 657, ¶ 5 (1st

Dist.), citing Chambers v. St. Mary's School, 82 Ohio St.3d 563, 565, 697 N.E.2d 198

(1998). But the statute must leave no room for a range of conduct that meets its

purpose. The only fact for the jury to determine must be the commission or omission

of the specific act. Chambers at 565. Where “a positive and definite standard of care

has been established by legislative enactment whereby a jury may determine whether

there has been a violation thereof by finding a single issue of fact, a violation is

negligence per se.” Id., quoting Eisenhuth v. Moneyhon, 161 Ohio St. 367, 374-375,

119 N.E.2d 440 (1954).

{¶10} The violation of R.C. 4511.75(E) is negligence per se. The statute sets

forth a specific requirement that a school bus driver shall not start his or her bus

until the child “has reached a place of safety on the child’s * * * residence side of the

street.” It leaves no room for considering what a reasonable person would do under

a given set of circumstances. The analysis is simple and binary—either the child had

crossed to her residence side of the street before the driver started the bus or she had

not. Since Krimmer drove away before Sallee crossed to her residence side of the

street, she was negligent per se in the operation of a motor vehicle.

{¶11} While the trial court addressed the application of R.C. 4511.75(E) to

this case, it did so in the context of a different exception to immunity. This

exception, contained in R.C. 2744.02(B)(5), provides for liability if a statute

expressly imposes it. The trial court reasoned that since R.C. 4511.75(E) did not

expressly impose liability, it did not meet the requirements of R.C. 2744.05(B)(5).

But the trial court did not analyze whether a violation of R.C. 4511.75(E) constituted

the negligent operation of a motor vehicle under R.C. 2744.02(B)(1). Since the trial

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court improperly determined that this case did not involve the negligent operation of

a motor vehicle, it erred.

Poorly Drafted Legislation Leaves Responsible Bus Drivers at Risk

{¶12} We are mindful that this is a delicate area. This court recognizes that

the General Assembly has enacted R.C. 4511.75(E) to protect children as they cross

the street to go home from school. At the same time, however, it is hard to imagine

what more Krimmer could have done in this situation. Sallee left the bus stop with

another child and proceeded down the street. Sallee’s stop was the first stop on

Krimmer’s route, and she had other children to take home. Krimmer honked at

Sallee and tried to get her to cross the street to her home. Krimmer notified school

officials that Sallee had not crossed as she was supposed to. Under R.C. 4511.75(E),

however, Krimmer could proceed no further. She had to remain in that spot. If a

child runs down the street, or proceeds into a friend’s home, or otherwise fails to

cross the street while at the same time moving outside the area of control of the bus

driver, the statute leaves no recourse for the driver. So a responsible driver in this

situation is placed in a dilemma: either remain parked indefinitely with all the other

children on the bus, or proceed to take the other children home and violate the

statute.

{¶13} As illogical as that result may be, it is not within the authority of this

court to continence any other. The legislature has enacted a statute that is plain.

This court can only apply it as the General Assembly has written it. As this case

demonstrates, the statute—however well-meaning—does not allow for situations

such as the one presented in this case; and it is difficult to imagine that such

situations are exceedingly rare. We encourage the legislature to reconsider this

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provision and to revise it to allow a bus driver to do something that would protect the

child who alights from the bus, the children who remain on the bus, and the driver

whose only goal is to protect and serve them all.

Conclusion

{¶14} Krimmer’s driving away from the bus stop before Sallee had safely

crossed to her residence side of the street constituted the negligent operation of a

motor vehicle, and the trial court erred in holding otherwise.

{¶15} It is important to note, however, that this does not complete the

analysis. The trial court could still conclude that the exception denoted in R.C.

2744.02(B)(1) does not apply if it determines that Krimmer’s conduct did not cause

Sallee’s injuries. See Dayton City School Dist. Bd. of Edn. 137 Ohio App.2d at 171-

172, 738 N.E.2d 390 (exception to immunity requires proof that the injury is a direct

consequence of the employee's negligent operation of the motor vehicle). But, since

the trial court did not engage in that analysis in the first instance, we must remand

this cause for that determination.

{¶16} We sustain Sallee’s sole assignment of error, reverse the judgment of

the trial court, and remand the cause for further proceedings consistent with law and

this opinion.

Judgment reversed and cause remanded.

CUNNINGHAM, P.J., and FISCHER, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.