STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5825

December 9, 1980

SCHOOLS AND SCHOOL DISTRICTS:

Liability for negligent act of school bus driver discharging children at a bus stop

WAIVER:

Contravention of public policy

WORDS AND PHRASES:

'Operation of a motor vehicle'

A school district and its school bus driver agent employee may be liable for negligence for discharging children from a school bus at a bus stop located in a place where children must cross a divided highway against moving traffic to reach their homes and a child is injured while crossing the divided highway, depending upon the age, maturity and experience of the discharged child.

An agreement by a parent to waive any claim of negligence on the part of the school district and/or its employee as a condition precedent to discharging a child from a school bus at such a bus stop would not be binding upon the parent as in contravention of public policy.

Honorable Alan L. Cropsey

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on the liability, if any, of a school district and its bus driver employee who permits students who live on one side of a divided highway to depart from a school bus which is stopped on the opposite side of the divided highway from where the students live. You describe the circumstances as follows:

It should be noted that when the driver of a vehicle is overtaking or meeting a school bus which has stopped on a highway located outside the corporate limits of a city or village to discharge school children and the school bus is displaying two alternately flashing red lights, the driver of the overtaking or meeting vehicle must stop not less than 10 feet from the bus and may not proceed until the school bus resumes motion or the flashing lights are no longer activated. 1949 PA 300, Sec. 682(2); MCLA 257.682; MSA 9.2382. However, this obligation to stop on the part of a driver overtaking or meeting a stopped school bus does not apply to the driver of a vehicle traveling upon that portion of a divided highway across the divided space, barrier or section from that portion of the divided highway upon which the school bus has stopped. 1949 PA 300, Sec. 682(4), supra.

Consideration of your question must begin with 1964 PA 170, Sec. 5; MCLA 691.1405; MSA 3.996(105), which provides as follows:.

A school district is a governmental agency under 1964 PA 170, Sec. 1(b)(d); MCLA 691.1401; MSA 3.996(101), which may be liable for bodily injuries and property damage resulting from the negligent operation by any of its officers or employees of a school bus owned by the school district. McNees v Scholley, 46 Mich App 702; 208 NW2d 643 (1973)

In McNees v Scholley, supra, the Michigan Court of Appeals held that a school district is immune from liability for negligence in planning school bus routes and a student who is injured in crossing a highway enroute to a bus stop at a time when the school bus was not physically present may not recover against the school district. In reaching this decision, the Court of Appeals considered and distinguished the decision in Earl W Baker & Co v Lagaly, 144 F2d 344 (CA 10, 1944), in which the Court held that the death of a child, who after alighting from a school bus walked in front of a stopped bus and started across the highway toward his home and was struck, by a passing truck, arose out of the operation of the bus. The Michigan Court of Appeals noted in the McNees case, Supra, that the school bus was not in a state of being at work at the time and place the injury was inflicted since the school bus did not arrive on the scene until some time after the child was injured.

Also instructive is the decision of hte Michigan Court of Appeals in Price v Manistique Area Public Schools, 54 Mich App 127; 220 NW2d 325, lv app den, 393 Mich 733 (1974). where an action was brought to recover damages for the wrongful death of a 6-year-old child who was riding as a passenger upon a school bus and departed the school bus at the edge of a highway accompanied by a 10-year-old brother and two other children where the bus driver knew that the 6-year-old child would be required to cross the highway to reach his destination. The handbook on transportation of the State Board of Education required that children should be supervised upon leaving the bus until crossing the highway and children were to pass in front of the bus when crossing the highway. The Court held that the question of whether the action of the bus driver in permitting the youngster to leave the bus at that location was the proximate cause of the accident was for the jury to determine in light of the totality of circumstances attending the event.

A school district providing bus transportation to its pupils is obligated to provide a reasonably safe system. Jackson v Hankinson, 51 NJ 230; 238 A2d 685; 34 ALR3d 1205 (1968). The amount of care to be provided increases with the immaturity of the children transported. Whether reasonable care has been exercised is a question of fact for the jury. Raymond v Paradise Unified School District, 31 Cal 847; 218 CA2d 1 (1963).

Selection of bus stops for receiving and discharging students must be exercised with reasonable care so that the bus stop is in a place of safety. What constitutes a place of safety depends upon the age, experience and ability of the student passengers. Thus, in Slade v New Hanover County Board of Education, 10 NC App 287; 178 SE2d 316, Cert den 179 SE2d 453 (1971); the Court said that a place of safety for an 18-year-old high school senior of ordinary intelligence and experience might be a place of peril for an inexperienced 6-year-old first grader. The Court there held that it was a question of fact for a jury to determine whether a school district used reasonable care in stopping a school bus in a safe place where a 6-year-old child was required to cross a highway against moving traffic.

With respect to the factual situation you have described, it must be concluded that the action of bringing the school bus to a stop in such a place does involve the operation of a motor vehicle owned by the school district and operated by its agent employee. A school bus driver who brings the vehicle to a stop knowing that discharged pupils will have to cross a divided highway against moving traffic in order to reach their homes may be liable for negligence in discharging students at such a bus stop, depending upon the age, experience and intelligence of the pupils discharged. McNees v Scholley, supra; Earl W Baker & Co v Lagaly, supra; Price v Manistique Area Schools, supra.

It is, therefore, my opinion that a school district which authorizes its bus drivers to stop at a bus stop to discharge pupils who must cross a divided highway against moving traffic to reach their homes is involved in the operation of a motor vehicle if a child leaving the bus is injured in crossing the divided highway and its bus driver agent employee may be liable for negligence, depending upon the age, maturity and experience of the discharged child.

In your second question you ask if either the school district or the school bus driver employee of the school district is liable for injuries suffered by a child who is injured while crossing a divided highway after having been discharged from the school bus on the opposite side of the highway from where the child lives if a parent signs a waiver form. In the waiver form the parent would agree to the child leaving the school bus at a stop on the side of a divided highway across from where the child lives and would waive any right to proceed against the school district and its school bus driver employee if the child is injured in crossing the divided highway after leaving the stopped school bus.

A waiver is an intentional relinquishment of a known right. Stevens v Stevens, 288 NY Supp 785 (1936). Rights and privileges conferred by law and resting in the individual parent and for his or her sole benefit may be waived, but the law is well settled that the waiver may not contravene public policy. Benane v International Harvester Co, 142 Cal App 2d 874; 299 P2d 750 (1956).

It should be observed that the public policy of this State is to be found in the Constitution, in the statutes enacted by the Legislature, and in the decisions of the courts. Shutt v City of Grand Rapids, 275 Mich 258; 266 NW 344 (1936).

The public policy of this State that children transported to school in school buses must be transported in safety is set forth in 1949 PA 300, Sec. 682, supra, and the School Code of 1976, 1976 PA 451, Sec. 1343 and 1344; MCLA 380.1343; MSA 15.41343; MCLA 380.1344; MSA 15.41344. Among other requirements, these statutes command that the school bus be painted chromium yellow, that it stop in a location which is visible to traffic in both direction in an unobstructed manner for 500 feet, and that children upon leaving the bus should proceed to cross a highway in front of the stoppped bus to further the safety of school children.

The public policy of this State that children are to be transported to school in safety may not be waived by the parent, either for himself or herself, and much less for the child. See Harp v Abramson, 248 Iowa 619; 80 NW2d 500 (1957). It is abundantly clear that it would be against public policy since it would permit a school district to discharge a young child at an unsafe place.

It is, therefore, my opinion in answer to your second question that an agreement by a parent to waive any claim of negligence on the part of the school district and/or its employee school bus driver would not be binding upon the injured child and is void as in contravention of public policy.

Frank J. Kelley