A North Carolina contractor law shielded a school district from liability when a student with special needs was sexually assaulted during transportation by a vendor.
Stokes County Schools contracted the Yadkin Valley Economic Development District Inc. (YVEDDI) to provide student transportation in 2013. Though safety monitors were out of the budget, the deal required YVEDDI to follow “an approved safety plan, provide a well-trained driver, conduct preemployment criminal background checks and drug testing of drivers, and to conduct random drug testing according to North Carolina Department of Transportation regulations,” according to court documents.
In November 2013, West Stokes High School student Lauren Osborne, a specials needs student with the functional capacity of a first grader, was moved from a yellow bus, with other exceptional children and an assigned monitor, to ride in a van alone with a single driver. Her Individualized Education Program (IEP) indicated she needed adult supervision throughout her school day to administer insulin to treat the her diabetes and to prevent bullying by other students. She also had a monitor on her school bus because other student passengers needed one.
The driver, YVEDDI employee Robert King, stopped the van during a December 2015 route, when Osborne was 20 years old, and sexually assaulted the girl..
A concerned Stokes County citizen reported seeing the van suspiciously parked, prompting YVEDDI to review video footage and report the incident to the local law enforcement. YVEDDI did not inform the school or Osborne’s mother, Michelle Powell, who learned of the assault when contacted by law enforcement.
Through her mother, Osborne sued YVEDDI and Stokes County Schools in December 2018. Osborne voluntarily dismissed claims against YVEDDI the following summer.
Osborne claimed negligence against the school district under Title IX of the Education Amendments of 1972, but the trial court granted partial summary judgement to the defendant district on Feb. 18, 2020. Osborne appealed a month later.
“Here, plaintiffs allege the board ‘created a dangerous environment for Lauren’ by contracting with YVEDDI to transport disabled students, failing to require YVEDDI to have a monitor on the bus, and by not verifying that YVEDDI was monitoring the video camera,” wrote judge April Wood in a 33-page opinion. “While we agree that the board should exercise the utmost standard of care while making decisions regarding its students, we are obliged to find the board could properly delegate any duty owed to Lauren to an independent contractor such as YVEDDI under our current law.”
The court said Osborne’s attorneys failed to demonstrate that the school board increased her risk of private danger, and they did not establish a pattern of widespread abuse. The court additionally denied Osborne’s 14th Amendment equal protection claim in part because it found no evidence that she was treated differently from similarly situated male students.
Under a separate concurring opinion, Court of Appeals Judge Richard Dietz explained, “I am not prepared to hold that the felony sexual assault of a vulnerable special needs student is always foreseeable to school officials as a matter of law. Criminal acts ordinarily are not foreseeable under tort law principles.”
That didn’t mean no one could be held responsible, Dietz wrote.
“Whatever heightened level of protection the school district owed Lauren because of her special needs, the duty to provide that same level of protection passed to YVEDDI under the independent contractor rule,” he added.
North Carolina Court of Appeals Judge John Arrowood submitted a third concurring opinion.
While the court of appeals did not find the school district liable for Osborne’s assault, there remains lessons can be learned from the case.
“The courts are deciding legal issues along fine points of law and there can be situations where there’s little relief for the victim,” said Peggy Burns, a retired school lawyer in Colorado and a tenured faculty of the Transporting Students with Disabilities & Special Needs National Conference (TSD Conference).
Editor’s note: School Transportation News and STN Media Group produce TSD Conference.
“You can use this case, to train and to talk both to special education personnel and school transporters and contractors,” Burns continued, pointing out that students like Osborne might need a bus monitor if their IEP require them to be supervised throughout the day. She also stressed the importance of including transportation in student IEP meetings.
Burns also warned against cutting corners and said contractors should budget for support staff when needed.
“If the contractor knew of the level of vulnerability of the young people on its route, a really responsible contractor would have gone back to the school board and said, ‘You know what, we don’t feel so good about transporting the student without a monitor,’” Burns explained.
She facilitates a panel at TSD Conference on Nov. 19 that discusses collaboration necessary between school districts and third-party transporters they contract with.
Related: Burns: Complying with Special-Ed Transportation Services Aren’t for Faint of Heart
Related: Adapting to Meet Challenges in Transport of Students With Special Needs
Related: TSD Session Focuses on Limiting Transportation Liability
Related: Special Needs Resources at stnonline.com
Another education attorney commented that the case should not inspire a lower standard of care in student transportation.
“I wouldn’t get too comfortable, based on this decision, because I think every state would interpret the role of an independent contract differently,” said attorney Betsy Helfrich, who practices in Missouri.
“The court focused on the level of control by the district, and in this case, they found the district contracted with this company, but they really didn’t take control over their schedules, their routes, and that helped keep a separate zone of liability, so to speak,” explained Helfrich, who keynotes the TSD Conference in Frisco, Texas, on Nov. 19. “So, if you contract with an outside company to provide services, you have to keep it separate, to help keep that wall up for liability purposes.”
A representative from Stokes County Schools said it no longer contracts out transportation.
“It’s certainly a tragic circumstance that the criminal action by this van driver employed harmed a student, and certainly the school system wants all students to be safe during the school day and on transportation as well,” said attorney Deborah Stagner, who represented the Stokes County Board of Education in Danbury, North Carolina.
Osborne is represented by Kirk Sanders and Joshua Dearman of the firm Hendrick Bryant Nerhood Sanders & Otis, which declined to comment on this article.
YVEDDI also declined to comment.