In Brinsmead v. Elk Grove Unified School District, published September 18, 2023, the Third District Court of Appeal reversed an order of dismissal entered after the trial court sustained the defendant district's demurrer. According to the complaint, the plaintiffs' daughter was enrolled in the district's school bus program. One morning, the daughter was present at the bus stop at the scheduled arrival time, to take the bus to school. The bus did not arrive. Neither the daughter nor her parents received notice of a delay in the bus service. Forty minutes after the scheduled arrival time, the daughter got a ride to school in a friend's car. During the ride, the car was hit head-on by another driver. The daughter sustained fatal injuries. The parents sued the school district for wrongful death and a survivor's action. The district demurred to the complaint on the ground that Education Code section 44808 rendered it immune because the district had not yet begun to undertake the daughter's transportation to school. After allowing leave to amend, the court sustained the demurrer to the amended complaint without leave to amend.
The appellate court disagreed. Under Education Code section 44808, a district is immune from liability for the conduct or safety of pupils when not on school property. But section 44808 provides an exception to immunity and a duty of care where the district has undertaken to provide transportation for a pupil to and from the school premises. If the district makes that undertaking, it is liable for the pupil's safety while the pupil is or should be under the immediate and direct supervision of a district employee. When a district accepts a student’s enrollment in a district’s school bus program to provide stable and reliable transportation to school, that acceptance constitutes a “specific undertaking” by the district within the meaning of section 44808. The court rejected an argument that the undertaking begins only when a bus arrives. The undertaking occurs both when the school bus arrives and transports students and also when the district accepts the responsibility of providing that transportation. The appellate court further interpreted section 44808's phrase "should have been under . . . supervision" to cover the time during which the bus should have arrived and provided transportation to a student. Whether a particular student was or should have been under a district employee's direct supervision is a question of fact. The parents therefore adequately alleged the daughter should have been under district supervision by the time she decided to find other transportation and was fatally injured.
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