Sallee v. Watts , 2014 Ohio 717 ( 2014 )

[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.
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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.
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