Statistically, it's safer to transport children to and from school by school bus than by car, according to the National Highway Traffic Safety Association. But accidents and other bus-related incidents that result in student injury and negligence are frequently causes for litigation. Leaving students on the bus when it arrives at school, sexual abuse of students by the bus driver, bus aide, or other students, and injuries caused by student misbehavior are just a few situations that might result in liability for a school district or contracted private bus company.

The safety of children on school buses is significantly compromised when school districts or school bus companies hire and retain bus drivers who have a troublesome driving history or a criminal record. The industry shortage of drivers can cause schools and private school bus companies to consider hiring drivers who might not measure up to the highest standards. The dangers of hiring a driver with a poor driving record came to light recently when a New Jersey school bus driver with numerous speeding tickets and multiple license suspensions allegedly attempted to make an illegal U-turn on an interstate highway and collided with a truck, killing a teacher and student on the bus. The driver was charged with vehicular homicide.

Inadequate hiring, training, and supervision of a school bus driver represent another potential set of harms to students and liability for a school or bus company. In one case for which our firm provided expert witness services, a bus driver unilaterally changed his assigned route and student pick-up times so he could spend unsupervised time in a remote location with a young student, whom he sexually abused. Other examples include students injured or harmed by other students and multiple accounts of students, some with special needs, being left on a bus when it arrived at school or at the end of the day when the bus returned to the bus garage.

Duty to Keep Students Safe Extends to School Bus Drivers

Public schools have a responsibility to protect their students from harm. This is a widely recognized professional standard in the field that applies when students are in school, on school grounds, and on buses that transport them to and from school and on class trips. Regardless of whether the school hires its own drivers or contracts with a private school bus company, the school must ensure that drivers are reliable persons of good character who can be trusted around children. All states require that bus drivers submit to criminal background checks, however, the professional standard of care requires that schools and bus companies take additional steps to screen the background of their drivers in order to protect their students. States also require that schools review the driving records of potential school bus drivers and, one would think, schools would eliminate applications by those whose record shows a history of violations.

However, these methods are not always foolproof. It is my experience as an education administration expert witness that there are gaps in the process, such as not contacting prior employers and not carefully checking criminal or arrest histories. When a school breaches the professional standard of care by failing to take appropriate steps to hire, supervise, train, and discipline school bus drivers, it may face costly litigation when a student is injured as a result.

Appropriate Hiring, Training, and Supervision of School Bus Drivers

In one of my previous articles, I covered how the school's duty to protect is non-delegable and how the school may be liable for the negligence of a contracted private bus company if it does not develop a reasonably comprehensive contract with the bus company and monitor its compliance with the contract. One of the most important steps a school can take to help secure students' safety is to specify the responsibilities of both entities in the contract and ensure that the bus company is upholding its obligations. The contract often becomes paramount when determinations are made about each party's specific responsibilities and whether any breach of the contract was a contributing factor in the harm of a student. School districts that own their own school buses and directly hire drivers can protect their students from harm by utilizing a comprehensive system for hiring, training, and supervising drivers.

Employment applications and interviews are only the minimal steps for obtaining good and trustworthy drivers. For example, it may not be a legal requirement to contact former employers listed on an application, but best practice and the reasonable standard of professional care dictate that the school or private bus company should do this and ask such questions as: "Would you hire this person again?" "Was he or she ever reported as driving in an unsafe manner?" "How was his or her relationship with the students on the bus?" The answers may provide an opportunity for the school or bus company to ask follow-up questions to obtain more information. Similarly, though an applicant may meet the legal requirement of passing a criminal background check, additional information might cause the school or bus company to consider hiring a different driver.

Any red flag that materializes during this process is a warning sign. The school or bus company should be careful not to place itself in a vulnerable position that might end up in litigation over an accident, sexual abuse, or other event that could have been avoided had a more comprehensive hiring process been in place.

A school or a private bus company that hires a driver is responsible for training the driver on its policies. These policies may require that a driver stay on his assigned route, does not let students off at unassigned stops, or that he walk to the back of the bus to assure that all students are off when they are supposed to be. A policy may require that drivers be trained in how to detect sexual abuse or report suspicions of child abuse and sexual abuse, know staff protocols for handling bullying, or make sure the surveillance camera is operational. Each state requires drivers to participate in safety training that covers bus evacuation in an emergency. Training becomes an issue of major concern when one of these systems fails. If there is a claim of negligent training because the video camera was not checked at the beginning of the route and a bus aide - knowing the camera wasn't working - sexually assaulted a student, the question becomes, "Did the school or private bus company provide appropriate and adequate training and oversight necessary to reasonably protect students from harm?"

Many of the transportation-related case assignments our firm has worked on, for both plaintiff and defendant attorneys, address whether or not the school or private bus company adequately supervised its drivers to assure that they were complying with policies and procedures. In the example of the bus driver who changed his route and pick-up time, my review indicated that the driver was provided with the route to be driven, the exact pick-up times for students, and the names of the students at each stop. However, no one from the private school bus company ever supervised the driver or monitored him to assure he was complying with these requirements. With no one watching him, he changed the pick-up time for certain students so that the target of his assault would be first on the bus and alone. If he had been adequately supervised, it is less likely he would have felt that he could do this on his own.

Pay Attention to Details When Hiring, Training, and Monitoring School Bus Drivers

Whether through a contract with a private bus company or through hiring, training, and supervising their own bus drivers, schools may avoid liability by:

• Conducting a comprehensive hiring process that goes beyond the legally required background check. Find out as much as possible about the applicant. Ask the question: "Is this person, based on his or her driving record and what prior employers and personal references say, the type of person you would trust with children?"
• Developing and providing training that goes beyond required safety instruction to equip drivers and bus aides with the information and tools necessary to adequately supervise and protect students from harm. Ask the question: "If a bus driver observes certain concerning behaviors on his or her bus, will the driver recognize it as bullying or sexual harassment - and how will the driver respond?"
• Supervising and monitoring drivers and private bus companies' activities to assure that school and company policies are followed and drivers comply with the rules. Ask the question: "How would I know if the driver changes the assigned route or drops off a student at an unassigned location?"

Schools are expected to protect students from harm from the moment they arrive at the bus stop in the morning to the time the bus drops them off at the end of the day. Meeting this expectation means tending to details in hiring, contracting, and actions. Go beyond minimum hiring requirements by contacting previous employers and references and asking pertinent questions. Ensure that contracts between schools and contracted bus companies unambiguously delineate the responsibilities of each and specify which person is accountable for what. Focus on the safety of students through clear policies that establish standards for handling and reporting inappropriate student behavior on buses, protocols for the use and monitoring of safety devices, and responsibilities and boundaries for aides who assist children with special needs. Develop procedures that identify specific individuals for carrying out these policies, train school staff and contractors in these procedures, and create a mechanism for ensuring that the responsible person follows through. These steps will not only reduce the likelihood of student injury, but help the school and bus company to defend lawsuits alleging negligence.