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STATE OF MINNESOTA IN COURT OF APPEALS A08-0612 J. W. on behalf of B. R. W., minor child, Appellant, vs. 287 Intermediate District, Respondent, Independent School District 271, a/k/a Bloomington Public Schools, a/k/a Transportation Center for Independent School District 271, Respondent, Adam Services, Inc., Respondent. Filed March 3, 2009 Affirmed in part, reversed in part, and remanded Connolly, Judge Hennepin County District Court File No. 27-CV-07-6714

Philip G. Villaume, Jeffrey D. Schiek, Villaume & Schiek, P.A., 2051 Killebrew Drive, Suite 611, Bloomington, MN 55425 (for appellant) Scott Ballou, Brownson & Ballou, PLLP, 225 South Sixth Street, Suite 4800, Minneapolis, MN 55402 (for respondent 287 Intermediate District) Kay Nord Hunt, Ehrich L. Koch, Lommen, Abdo, Cole, King & Stageberg, P.A., 2000 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent Independent School District #271) Judith Mlinar Seeberger, Reding & Pilney, PLLP, 8661 Eagle Point Boulevard, Lake Elmo, MN 55042 (for respondent Adam Services, Inc.)

Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Connolly, Judge. SYLLABUS 1. A school districts decision, when made after a consideration of the implicated safety and privacy issues, not to disclose certain prior acts and behavior of a student on that students bus-transportation form is discretionary and therefore protected by statutory immunity. 2. Following the explicit and unambiguous seating instructions contained on a students bus-transportation form is a ministerial act. A school district employees failure to follow such instructions is not protected by official immunity. OPINION CONNOLLY, Judge Appellant J.W.s son, B.R.W., was sexually assaulted by another child while riding a school bus. Appellant sued two school districts and Adam Services, Inc. On

(Adam), the bus company that provided transportation during the school year.

summary judgment, the district court dismissed all of appellants claims against respondents except for the negligence claim against respondent Adam. The district court also denied appellants motion to amend her complaint to add a punitive-damages claim against Adam and Adams motion for summary judgment. We affirm in part, reverse in part, and remand.

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FACTS In January 2005, C.R. moved into a group transition home located in the geographical area served by respondent Independent School District 271 (Bloomington). Because C.R. was diagnosed with an emotional-behavioral disorder (EBD), school officials determined that his educational needs were best met by placement in the Hosterman Education Center (Hosterman), a facility run by respondent 287 Intermediate District that serves students with EBD. Transporting students to and from Hosterman is the responsibility of the students school district, in this case Bloomington. During the school year, Bloomington arranged to provide transportation to and from Hosterman in a bus owned and operated by Adam. During the summer session, Bloomington used its own buses, operated by its own employees, to provide transportation to and from Hosterman. C.R. began riding a bus operated by Adam on April 6, 2005. He continued to ride that bus until the end of the school year, sometime in the middle of June 2005. After the school year, C.R. began riding a bus operated by Bloomington. He rode this bus from June 20, 2005 through July 18, 2005. Also present on the two buses was B.R.W., another child who was attending Hosterman. While the details are somewhat in dispute, C.R. sexually assaulted B.R.W. on the bus ride to and from Hosterman on at least one occasion.1

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As part of a plea agreement, C.R. pleaded guilty to one count of second-degree criminal sexual conduct against B.R.W. Appellant contends that B.R.W. was assaulted on multiple occasions on the bus, both during the school year and during the summer session. 3

Bus-transportation forms are created for each child with a disability who rides a school bus. These forms contain, among other things, information about the childs disability and seating instructions. In this case, there were two bus-transportation forms created for C.R. Both forms were created with the input of officials from Bloomington and Hosterman. The first bus-transportation form, created for transport during the school year, indicated that C.R. had an "EBD" disability. It contained the seating instruction that C.R. "Sit in Front Seat Alone." The second bus-transportation form, created for transport during the summer session, also indicated that C.R. had an "EBD" disability. It included the seating instruction that C.R. should "SIT BEHIND DRIVER, ALONE IN THE SEAT!" A handwritten star was placed next to this instruction. What the bustransportation forms did not contain, however, was information that C.R. had a history of sexually inappropriate behavior. This was information that school officials had access to but intentionally did not disclose. At the district court, appellant argued that this decision not to disclose was negligent and not protected by statutory immunity. Further, appellant contended that, on at least one occasion, the instruction that C.R. should sit alone in the front seat was disregarded by the bus drivers and aides employed by both Bloomington and Adam. Appellant also argued that the bus drivers and aides were negligent in not following these instructions and that their actions are not protected by official immunity. The district court, in an extremely thorough and well-crafted opinion, granted summary judgment in favor of Bloomington and Hosterman, but not as to Adam. The district court also denied

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appellants motion to amend her complaint to add a punitive-damages claim against Adam. This appeal follows. ISSUES I. Did the district court err when it granted Bloomington's motion for summary judgment based upon statutory and official immunity? Did the district court err when it granted Hosterman's motion for summary judgment based upon statutory and official immunity? Did the district court err when it denied appellant's motion to add a claim for punitive damages to her complaint? Did the district court err when it denied Adam's motion for summary judgment on appellant's negligence claim against Adam? ANALYSIS "On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted). The applicability of governmental immunity is a question of law subject to de novo review. Sletten v. Ramsey County, 675 N.W.2d 291, 299 (Minn. 2004) (official immunity); Johnson v. State, 553 N.W.2d 40, 43-44 n.1, 45 (Minn. 1996) (official and statutory immunity; also referred to as "discretionary immunity"). 5

II.

III.

IV.

The Minnesota Tort Claims Act holds municipalities, including school districts, liable for their torts. Minn. Stat.

Download A08-612, J. W. on behalf of B. R. W., minor child, Appellant, vs. 287 Intermedia

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