In the case of McCullough v. Youngstown School Dist., 7th Dis. Mahoning No. 18 MA 0075, 2019-Ohio-3965, an Ohio appellate court held that (1) the existence of an unguarded hillside on school property may not be a physical defect that overcomes statutory immunity and (2) operators of school buses may not be negligent as to overcome statutory immunity if when hitting a child, they lacked an opportunity to avoid the child.
In this case, a student rolled down an unguarded hill on a school district’s property adjacent to a public road. A bus operator on that public road saw the student rolling down the hill. Even though the bus was stopped due to traffic at the time, the bus operator did not move the bus after traffic started moving due to concern that the rolling student would fall into the street. Once the bus operator saw that the student made it to the bottom of the hill and was being restrained by their brother, the bus operator proceeded to move forward. Once the bus started moving again, the student dizzy from rolling stumbled into the street and was killed by being hit by the bus. The father of the student brought a legal claim against the school district arguing that (1) the school district was negligent in allowing students to access the hill without safety precautions and (2) that the school bus driver was negligent in failing to avoid the student. The school district responded that the claims were barred by statutory immunity under R.C. 2744.02(A).
As to the negligence claim regarding the unguarded hillside, the Ohio appellate court held that the existence of a hill on school property was not a “physical defect” that would provide an exception to statutory immunity. Even though the hill bordered a public road, the Ohio appellate court reasoned that a hill without visible or perceivable physical imperfections does not become a “physical defect” because a student chose to roll down it.
As to the negligence claim regarding the school bus operator, the Ohio appellate court held that the bus operator was not negligent because their duty to observe the student and drive cautiously to avoid injuring the student ended once the student rolled to the bottom of the hill and was being restrained by their brother and because, once the student stumbled into the road, the bus operator lacked an opportunity to avoid the student.
To read this case, click here.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is always changing like the Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.