Atkins v. City of Burlington Sch. Dist., No. S0463-11 CnC (Crawford, J., Dec. 6, 2012)

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                                                       STATE OF VERMONT

SUPERIOR COURT                                                                                             CIVIL DIVISION
Chittenden Unit                                                                                            Docket No. S0463-11 CnC

Henry Atkins b/n/f
Susan Huling
      Plaintiff

      v.

City of Burlington School District and
Chittenden County Transportation Authority
       Defendants


                     DECISION ON CCTA’S MOTION FOR SUMMARY JUDGMENT
        Plaintiff Henry Atkins, by his next friend Susan Huling, seeks to hold the City of
Burlington School District and Chittenden County Transportation Authority (CCTA)1 liable for
injuries he sustained when his arm was broken by a fellow student on the bus. Both defendants
have moved for summary judgment. CCTA has requested the court to expedite ruling on
CCTA’s motion. Accordingly, this decision does not address Burlington School District’s
motion, which is not yet ripe.
                                                                    FACTS
       The following facts are undisputed for the purposes of this motion. During the 2009–
2010 school year, Henry Atkins was enrolled in the seventh grade at Edmunds Middle School in
Burlington, Vermont. Lindsay Legault-Knowles was also a student at Edmunds that year.
        Chittenden County Transportation Authority is a public transportation authority which is
chartered to provide transportation for municipal members, including the City of Burlington.
CCTA is paid by the Burlington School District to provide transportation to its students. Some
CCTA buses are designated “neighborhood special” buses because they follow routes used by
students to travel by bus between school and home. While the neighborhood special buses are
primarily used for student travel, members of the public may use these buses for transportation.
         On March 18, 2010, Henry boarded the CCTA bus after school. Lindsay boarded the bus
as well and sat directly behind Henry. The two had been arguing for the previous few days about
the existence of a slang word. Once seated on the bus, they continued their argument for three to
five minutes. Henry remembers doing a “victory dance” in front of Lindsay, waving his hands in
the air and in front of Lindsay’s face. Lindsay then grabbed Henry’s right arm and pulled it back
and down across the top of the bus seat with such force that his humerus bone broke.

1
  Plaintiff refers to Defendant as the “Chittenden County Transit Authority” in his complaint. As this is merely a
technical error and there is no doubt as to the identity of Defendant, the court has amended the caption to refer to
Defendant by its correct name for purposes of clarity.
        The only adult on the CCTA bus at the time was the bus driver, Omer Pilav. Pilav had
arrived at the bus stop in front of Edmunds at approximately 2:50 p.m. that day. As usual, he
parked the bus and turned off the engine. The bus is equipped with a video camera, but it does
not record when the bus is turned off.
        Students began boarding the bus at approximately 3:00 p.m. Approximately 40 students
boarded the bus. Pilav was on the bus at all times when children were boarding and on the bus.
Pilav was scheduled to depart from the bus stop at 3:10 p.m., and started the engine at
approximately 3:07. Lindsay broke Henry’s arm at or around the same time. Pilav did not see the
altercation. He was sitting at the front of the bus in the driver’s seat, and students were standing
in the aisle between him and where Henry and Lindsay were located. Once he was alerted to
Henry’s situation, he assisted Henry and contacted school and medical authorities.
        There is no evidence that CCTA had actual or constructive notice of any problems
involving Henry or Lindsay prior to the time of the incident. Pilav had not had problems on this
route in the past. He occasionally has separated disruptive teenagers from each other on other bus
routes. CCTA policy prohibits passengers from engaging in violent or harassing behavior, and
directs its bus drivers to request that the offending action cease.
        The School Resource Officer, Jamie Chase, felt that some CCTA buses—although not
this route—were overcrowded. He had shared his concerns both before and after the incident
with Donna Roberts, the Vice Principal at Edmunds Middle School. He did not recall sharing
these concerns with CCTA. Although he believed that Roberts might have discussed the issue
with CCTA, there is no evidence that such discussions actually occurred.
                                            ANALYSIS
       Henry claims that CCTA was negligent because it failed to properly supervise the bus
and thereby prevent Lindsay from harming him. To support his negligence claim, Henry must
show that CCTA owed him a legal duty, that CCTA breached that duty, that the breach was the
proximate cause of his injury, and that he suffered actual loss or damage. Endres v. Endres, 2008
VT 124, ¶ 11, 185 Vt. 63.
        CCTA is a common carrier. See 5 V.S.A. § 1821. Common carriers are obligated to
exercise due care under the circumstances to protect their passengers against unreasonable risk of
physical harm. Ploesser v. Burlington Rapid Transit Co., 121 Vt. 133, 139 (1959). Here, the
circumstances involve schoolchildren; thus, the CCTA bus driver had a duty to “take into
account the age, situation and disposition of his juvenile passengers, and act accordingly for their
protection.” Bridge v. Woodstock Union High Sch. Dist., 127 Vt. 598, 599 (1969). A common
carrier’s duty to protect its passengers extends to risks arising from the improper acts of third
persons, even if those acts are criminal. Restatement (Second) of Torts § 314A, cmt. d. (1965).
        However, the risk must be reasonably foreseeable; a bus driver “is not required to take
precautions against a sudden attack from a third person which he has no reason to anticipate.”
Id. cmt. e. Courts in other jurisdictions have held that a common carrier is not liable for injury to
a passenger caused by the wrongful conduct of another passenger, unless the carrier knew or
should have known that the first passenger was in danger. See, e.g., Se. Stages, Inc. v. Stringer,
437 S.E.2d 315, 318 (Ga. 1993). Of course,

                                                  2
         [a] common carrier’s knowledge of a threatened danger is not restricted to
         knowledge that a particular individual possesses dangerous propensities, since
         there are situations where a common carrier can reasonably anticipate misconduct
         without knowing which individual will misbehave, as, for example, in a situation
         where a particular route has a history of violent and assaultive conduct by
         passengers, such that violent incidents occur daily or weekly.
Id. (citing Lopez v. S. Cal. Rapid Transit Dist., 710 P.2d 907 (Cal. 1985)).
        Without such a showing, however, a carrier cannot be held liable for a sudden and
unexpected attack by one passenger against another. See, e.g., Rabadi ex rel. Rabadi v. Cnty. of
Westchester, 554 N.Y.S.2d 291, 293 (N.Y. App. Div. 1990) (neither county nor public bus
company were liable for broken nose of student who was punched by fellow student while riding
bus to school; though assailant had been disruptive in past, there was no warning that assailant
would attack student). “To establish reasonable foreseeability, more than the mere possibility of
an occurrence must be shown, since otherwise a common carrier would be made an insurer, with
absolute liability to all passengers.” Se. Stages, Inc., 437 S.E.2d at 318 (fact that bus company
knew about two prior occasions where knife-wielding passenger had assaulted driver did not put
company on notice to anticipate unprovoked shooting of one passenger by another).2
        Here, the only evidence that CCTA knew or should have known that Henry was in danger
of being injured by Lindsay or anyone else is the hearsay statement by Mr. Chase that Donna
Roberts may have raised concerns about overcrowding with CCTA. This is insufficient to
support a claim against CCTA. There is no evidence to show that violent assaults regularly
occurred on this route. The bus driver specifically stated that he had not previously had any
trouble on the route. It is true that no other adults were on the bus that day besides the bus driver
but the evidence shows that this was typically the case. The fact that the bus driver occasionally
has had to separate unruly teenagers on other routes is legally insufficient to put him or CCTA
on notice that Henry was in physical danger on the day in question.
        Henry himself states that he and Lindsay did not begin arguing until after they took their
seats near the rear of the bus. Thus, there was nothing to alert the bus driver that the two of them
were likely to start fighting. Henry and Lindsay did not engage in physical contact prior to her
violent act, nor is there any evidence that they were arguing loudly enough for the bus driver or
other passengers to notice. The entire episode took place in a matter of a few minutes, and the
bus driver responded appropriately once he became aware of Henry’s injury.
        Henry argues that the bus was overcrowded, which prevented the bus driver from being
able to properly supervise the students. He has not shown that the bus was more crowded than
usual, or that the number of students on board exceeded capacity. Rather, the evidence shows

2
  The case relied upon by plaintiff is not to the contrary. See Maley v. Children’s Bus Serv., Inc., 117 N.Y.S.2d 888
(N.Y. Sup. Ct. 1952). In Maley, a girl whose eye was injured by a paper clip shot by a fellow student on a bus sued
the bus company. The evidence showed that a rowdy group of boys was shooting paper clips at the girls prior to
boarding, that one of the girls was hit as she boarded the bus and cried out, and that the boys continued to shoot
paper clips at the ceiling and out the windows of the bus until the plaintiff was injured. The boys had been disruptive
before and the bus had returned to school at least once for disciplinary action. Under these circumstances, the court
held that the bus driver knew or should have known of the boys’ “rowdyism” and should have ordered them to stop.
Id. at 890.

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that there were students standing in the aisle and taking their seats before the bus departed. This
is normal and expected behavior for passengers boarding a bus and is not a basis for holding
CCTA liable.
        The undisputed evidence shows that this was a sudden, unexpected attack that CCTA
could not reasonably have anticipated at the time. Thus, CCTA cannot be held liable for Henry’s
injuries.
       CCTA’s motion for summary judgment is granted.


Dated at Burlington, Vermont this ____ day of December, 2012.


                                                              _____________________
                                                              Geoffrey Crawford,
                                                              Superior Court Judge




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