George Brinsmead et al. v Elk Grove Unified School District et al

On Sept. 18, 2023, the Court of Appeal for the Third Appellate District of California issued its opinion reversing the Sacramento County Superior Court’s order of dismissal of a wrongful death complaint against Elk Grove Unified School District (EGUSD). The plaintiffs sued EGUSD for the wrongful death of their daughter — an EGUSD student — alleging the district breached its duty to provide the student with a reasonably safe school bus system and, consequently, should be held liable under Education Code section 44808.

In response, EGUSD filed a demurrer challenging the legal sufficiency or adequacy of the complaint and pleading for its dismissal on the point that, even if the facts alleged in the complaint were true, they do not disclose a legal basis for the lawsuit. The trial court upheld EGUSD’s claim of immunity, sustained the demurrer and dismissed the complaint. On appeal, the appellate court held that Education Code section 44808 immunity was not applicable in the circumstances of the case and remanded the case to the trial court to enter a new order overruling the demurrer and to continue with the proceedings.

The deceased student was enrolled in the district’s school bus program for the 2019–20 school year. On the morning of Jan. 22, 2020, the student arrived at the designated school bus stop, and after waiting for 40 minutes for the bus to arrive, hitched a ride with a friend. An accident occurred during the ride that resulted in the student’s death and her parents sued the district and others.

The trial court’s order of dismissal as well as the Appeals Court’s decision hinged on interpretation of a couple of key phrases in Education Code section 44808. The courts both agree that school districts are immune from liability for the conduct or safety of students when they are not on school property. However, the courts differ in their interpretation of the meaning and application of the exceptions stated in Ed. Code 44808. Specifically, Ed Code 44808 states:

“Notwithstanding any other provision of this code, no school district, city or county board of education, county superintendent of schools, or any officer or employee of such district or board shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district, board, or person has undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.

In the event of such a specific undertaking, the district, board, or person shall be liable or responsible for the conduct or safety of any pupil only while such pupil is or should be under the immediate and direct supervision of an employee of such district or board.”

Based on the trial court’s meaning of “has undertaken to provide transportation to and from the school premises…,” the plaintiffs would need to allege facts that EGUSD undertook the duty to transport the student on the specific day of the accident, and since the school bus did not pick up the student on that day, the trial court decided that, as argued by EGUSD, there was no undertaking on the district’s part and so it was immune from liability. The trial court rejected the plaintiff’s argument that EGUSD waived all immunity when it actually undertook to provide transportation to the student for the entire school year. The appeals court disagreed with the trial court’s reasoning and determined that the plain meaning of the phrase “undertaken to provide transportation” means not just physical transportation from one point to another, but also “the promise and engagement to provide that transportation.” The appeals court also held that EGUSD’s acceptance of a student’s enrollment in its school bus program constitutes a “specific undertaking” by the district and, thus, a waiver of immunity under Education Code section 44808.

On whether the phrase “is or should be under the immediate and direct supervision of a district employee” was applicable so that EGUSD would not be entitled to claim immunity, the trial court noted that plaintiff did not allege facts of “direct supervision,” and the judge was unpersuaded by plaintiff’s argument that because, at the time of the accident, the student “should have been” under the direct supervision of the district’s bus driver, EGUSD was not immune from liability. The appellate court again disagreed with the trial court’s construction of the phrase. The appellate court construed the phrase to cover the time during which the school bus would be expected to arrive and provide transportation to students, rather than restrict it to only when the transportation process actually begins, which did not happen in the instant case.

With the appeals court’s reversal of the judgment of dismissal, the case is returned to the trial court for a trial on the merits.