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

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISI ON 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 H uling, seeks to hold the City of Burlington School District and Chittenden County Tr ansportation 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 purpose s 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 al so a student at Edmunds that year.
Chittenden County Transportation Authority is a pu blic transportation authority which is chartered to provide transportation for municipal m embers, including the City of Burlington. CCTA is paid by the Burlington School District to p rovide transportation to its students. Some CCTA buses are designated “neighborhood special” bu ses 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 p ublic may use these buses for transportation.
On March 18, 2010, Henry boarded the CCTA bus afte r 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 b us, they continued their argument for three to five minutes. Henry remembers doing a “victory danc e” in front of Lindsay, waving his hands in the air and in front of Lindsay’s face. Lindsay the n grabbed Henry’s right arm and pulled it back and down across the top of the bus seat with such f orce that his humerus bone broke.

1 Plaintiff refers to Defendant as the “Chittenden C ounty Transit Authority” in his complaint. As this is merely a technical error and there is no doubt as to the ide ntity of Defendant, the court has amended the capti on to refer to Defendant by its correct name for purposes of clari ty.2

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 appr oximately 2:50 p.m. that day. As usual, he parked the bus and turned off the engine. The bus i s 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 Lindsa y 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 const ructive 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 di sruptive teenagers from each other on other bus routes. CCTA policy prohibits passengers from engag ing in violent or harassing behavior, and directs its bus drivers to request that the offendi ng action cease.

The School Resource Officer, Jamie Chase, felt tha t some CCTA buses—although not this route—were overcrowded. He had shared his conc erns both before and after the incident with Do n na Roberts, the Vice Principal at Edmunds Middle Sc hool. 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 discussio ns actually occurred.

ANALYSIS
Henry claims that CCTA was negligent because it fa iled to properly supervise the bus and thereby prevent Lindsay from harming him. To su pport his negligence claim, Henry must show that CCTA owed him a legal duty, that CCTA bre ached 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. Com mon carriers are obligated to exercise due care under the circumstances to protec t 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 CCT A bus driver had a duty to “take into account the age, situation and disposition of his j uvenile 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. Restateme nt (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 pe rson which he has no reason to anticipate.” Id . cmt. e. Courts in other jurisdictions have held t hat a common carrier is not liable for injury to a passenger caused by the wrongful conduct of anoth er passenger, unless the carrier knew or should have known that the first passenger was in d anger. See, e.g., Se. Stages, Inc. v. Stringer

, 437 S.E.2d 315, 318 (Ga. 1993). Of course,3

[a] common carrier’s knowledge of a threatened dang er is not restricted to knowledge that a particular individual possesses da ngerous propensities, since there are situations where a common carrier can rea sonably anticipate misconduct without knowing which individual will misbehave, as , for example, in a situation where a particular route has a history of violent a nd 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) (neit her 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 for eseeability, more than the mere possibility of an occurrence must be shown, since otherwise a comm on 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 h ave known that Henry was in danger of being injured by Lindsay or anyone else is the h earsay 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 adu lts 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 route s 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 b egin arguing until after they took their seats near the rear of the bus. Thus, there was not hing to alert the bus driver that the two of them were likely to start fighting. Henry and Lindsay di d not engage in physical contact prior to her violent act, nor is there any evidence that they we re 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 a ware of Henry’s injury.
Henry argues that the bus was overcrowded, which p revented 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 exce eded capacity. Rather, the evidence shows

2 The case relied upon by plaintiff is not to the co ntrary. 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 g roup of boys was shooting paper clips at the girls prior to boarding, that one of the girls was hit as she boar ded the bus and cried out, and that the boys contin ued to shoot paper clips at the ceiling and out the windows of t he bus until the plaintiff was injured. The boys ha d been disruptive before and the bus had returned to school at least once for disciplinary action. Under these circumsta nces, the court held that the bus driver knew or should have known of the boys’ “rowdyism” and should have ordered the m to stop. Id . at 890.4

that there were students standing in the aisle and taking their seats before the bus departed. This is normal and expected behavior for passengers boar ding a bus and is not a basis for holding CCTA liable.
The undisputed evidence shows that this was a sudd en, 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 Decem ber, 2012.

_____________________ Geoffrey Crawford, Superior Court Judge