School District Not Immune From Liability For Harm Suffered By Student After School Bus Failed To Arrive

The Third Appellate District reversed a judgment and remanded. The court held that the parents of a high school student adequately alleged that the student should have been under the direct supervision of a district employee at or shortly after the time a district school bus was scheduled to pick her up to transport her to school, thereby defeating the district's claim that it was immune from liability for any harm suffered by the student when the bus failed to arrive.

The parents of 16-year old high school student G. enrolled her in the Elk Grove Unified School District's school bus program for the 2019-2020 school year. The bus was scheduled to arrive at a designated bus stop every school day at 6:40 a.m. On January 22, 2020, the bus failed to arrive. After waiting 40 minutes beyond the schedule time, G. accepted a ride from a friend. En route to the school, the friend's car was hit head on by another driver. G. died in the impact.

G.'s parents filed a wrongful death action against the school district. The trial court sustained the district's demurrer without leave to amend and dismissed the complaint, finding the district entitled to immunity under Educ. Code §44808.

The court of appeal reversed, holding that the parents pleaded sufficient facts to fall outside §44808 immunity for purposes of demurrer. Under §44808, a district is immune from liability "for the conduct or safety of any pupil of the public schools at any time when [the] pupil is not on school property." However, an exception to that immunity applies and "a duty of care exists" where the district "has undertaken to provide transportation for such pupil to and from the school premises." In the event of such undertaking, the district is liable for the safety of a pupil "while such pupil is or should be under the immediate and direct supervision of an employee of such district."

Addressing these two requirements separately, the court found first that a school district "undertakes" to provide transportation for a student not only when a school bus arrives and transports the student, but also when the district accepts the responsibility of providing that transportation. Here, the parents' allegations were sufficient to allege such an undertaking.

Turning to the second requirement, the court found that whether a student "is or should be under the immediate and direct supervision" of a school district employee is a question of fact. Here, accepting the parents' allegations as true, G. should have been under the direct supervision of a district employee by 6:40 a.m., when the school bus was scheduled to arrive at G.'s bus stop, and, in any event, no later than 7:20 a.m., when she decided to find alternate transportation. The parents thus adequately alleged that §44808 immunity did not apply.

Brinsmead v. Elk Grove Unified School District, September 16, 2023