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HomeMy WebLinkAbout2006-5370 Civil JAMES D. HEGARTY AND : IN THE COURT OF COMMON PLEAS OF JEANMARIE HEGARTY, : CUMBERLAND COUNTY, PENNSYLVANIA Individually, and as Parents and natural : Guardians of Brendan Hegarty, a minor, : Hugh Hegarty, a minor, and : John Hegarty, a minor, : PLAINTIFFS : : V. : : CUMBERLAND VALLEY SCHOOL : DISTRICT and H.E. ROHRER, INC., : CHAD T. KOVACH, : DEFENDANTS : 06-5370 CIVIL TERM IN RE: MOTION OF DEFENDANT, CUMBERLAND VALLEY SCHOOL DISTRICT, FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J OPINION AND ORDER OF COURT Bayley, J., December 21, 2009:-- Defendant, Cumberland Valley School District, transports its students through its contract with defendant, H.E. Rohrer, Inc., to provide bus service for the District. Defendant, Chad T. Kovach, was an employee of Rohrer. On April 25, 2006, while Kovach was operating school bus number 47, an unruly student interfered with his ability to safely drive. Kovach lost control of the bus resulting in an accident. The minor plaintiff, Brendan Hegarty, a student who was on the bus, was injured. No person employed by the Cumberland Valley School District was on the bus. This suit was instituted by the minor’s parents on his behalf against the Cumberland Valley 06-5370 CIVIL TERM School District, H.E. Rohrer, Inc., and Chad T. Kovach. Maintaining that it has immunity, the Cumberland Valley School District has filed a motion for summary judgment. The issue was briefed and argued on November 25, 2009. Local agencies are immune from tort liability except as provided in the Political et seq. Subdivision Tort Claims Act, 42 Pa.C.S. Section 8541, Exceptions to immunity are set forth in Section 8542: (a) Liability imposed. A local agency shall be liable for damages on account of an injury to a person or property . . . if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set froth in subsection (b): (1) The damage would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having an available defense under section 8541 (relating to governmental immunity generally) . . . and The injury was caused by the negligent acts of the (2) local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b) . . . (b) Acts which may impose liability. The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: Vehicle liability. The operation of any motor vehicle (1) in the possession or control of the local agency . . . (Emphasis added.) Plaintiffs maintain that the vehicle liability exception applies in this case. They have produced a plethora of evidence that the Cumberland Valley School District maintained control over the manner in which Kovach could operate Rohrer’s bus. These included rules governing student conduct during transport, and a rule requiring that “the school bus driver shall be responsible for the discipline of students while they -2- 06-5370 CIVIL TERM are being transported to and from school.” Drivers were given detailed written instructions on how to perform their job which included their responsibilities for student discipline. In its first amended complaint, plaintiff avers: The purpose of this control and jurisdiction exercised by CVSD over the operation of the bus and the transportation of students is to protect the students on the bus from the harmful consequences of student misbehavior. However, CVSD did not exercise the proper control and jurisdiction to guard the students against harm and dangers caused by student misbehavior on the bus. To the contrary, CVSD ignored its own Policies and failed to exercise any control over student misbehavior, ignored the parental complaints of the Plaintiffs under the Policy, and actively permitted the operation of school bus #47 in a dangerous and harmful condition which led directly to the accident. An agency relationship is distinguished from an independent contractor Feller v. relationship based on the amount of control one party has over the other. New Amsterdam Cas. Co., 363 Pa. 483 (1950). In an agency relationship, the master “not only controls the results of the work but has the right to direct the way in which it Id. shall be done.” In contrast, an independent contractor “has the exclusive control Id.; over the manner of performing [the work], being responsible only for the result.” Moon Area School District v. Garzony, 522 Pa. 178 (1989). Plaintiff has produced sufficient evidence to show that despite contracting for bus service with Rohrer and Kovach being an employee of Rohrer, the school district maintained exclusive control over the manner in which Kovach performed his job as a driver on bus number 47. Mickle v. City of Philadelphia, In 707 A.2d 1124 (1998), Mickle was injured while being transported by a rescue van driver by an agent of the City of Philadelphia. -3- 06-5370 CIVIL TERM The accident was caused by the negligent maintenance and repair of the rescue van which resulted in the rear wheels coming off. The Supreme Court of Pennsylvania stated: Negligence related to the operation of a vehicle encompasses not only how a person drives but also whether he should be driving a particular The motor vehicle exception does not say vehicle in the first place. that liability may be imposed only where the operator’s manner of driving is negligent. Rather, it requires that the injury is caused by a negligent act with respect to the operation of the motor vehicle. (Emphasis added.) The Court concluded: “that the City was engaged in acts of negligence with respect to the operation of a motor vehicle and that the motor vehicle exception to sub judice, governmental immunity applies.” In the case plaintiffs have produced sufficient evidence to present to a jury that the Cumberland Valley School District maintained exclusive control over the manner in which students were transported by bus, and the District was negligent with respect to the operation of bus number 47 on April 25, 2006. Under these circumstances the motor vehicle exception to immunity applies. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of December, 2009, the motion of defendant, IS DENIED. Cumberland Valley School District, for summary judgment, By the Court, -4- 06-5370 CIVIL TERM Edgar B. Bayley, J. -5- 06-5370 CIVIL TERM C. Grainger Bowman, Esquire 17 North Second Street th 18 Floor Harrisburg, PA 17101 For Plaintiffs Charles E. Haddick, Jr., Esquire 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011 For Defendants :sal -6- JAMES D. HEGARTY AND : IN THE COURT OF COMMON PLEAS OF JEANMARIE HEGARTY, : CUMBERLAND COUNTY, PENNSYLVANIA Individually, and as Parents and natural : Guardians of Brendan Hegarty, a minor, : Hugh Hegarty, a minor, and : John Hegarty, a minor, : PLAINTIFFS : : V. : : CUMBERLAND VALLEY SCHOOL : DISTRICT and H.E. ROHRER, INC., : CHAD T. KOVACH, : DEFENDANTS : 06-5370 CIVIL TERM IN RE: MOTION OF DEFENDANT, CUMBERLAND VALLEY SCHOOL DISTRICT, FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J ORDER OF COURT AND NOW, this day of December, 2009, the motion of defendant, IS DENIED. Cumberland Valley School District, for summary judgment, By the Court, Edgar B. Bayley, J. 06-5370 CIVIL TERM C. Grainger Bowman, Esquire 17 North Second Street th 18 Floor Harrisburg, PA 17101 For Plaintiffs Charles E. Haddick, Jr., Esquire 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011 For Defendants :sal -2-