Appeal from Superior Court of King County. Docket No: 93-2-20264-4. Date filed: 07/18/95. Judge signing: Hon. James W. Bates Jr.
Authored by Susan R. Agid. Concurring: Faye C. Kennedy, C. Kenneth Grosse.
The opinion of the court was delivered by: Agid
AGID, J. -- Gennifer Lilly, as guardian ad litem for M., and Hien The Tran, as guardian ad litem for D., sued defendants William Kendrick, the school superintendent; Seattle School District No. 1; and Laidlaw Transit, Co. for damages arising out of a sexual assault on M. and D. by Steven Joy, a bus driver. They argue that Laidlaw breached its contract with the school district by hiring Joy and that they may recover as third party beneficiaries of that contract. They also argue that Laidlaw and the district negligently hired Joy. The trial court dismissed their claims on summary judgment. We find that Laidlaw did not breach its contract and Laidlaw and the district used all reasonable care in hiring Joy and affirm the trial court's order.
Laidlaw provides school bus transportation for Seattle School District No. 1. In 1991, Steven Joy applied for a job as a school bus driver and was eventually hired. Before hiring him, Laidlaw required Joy to complete an applicant disclosure form swearing that he had never been convicted of any crimes against persons, including sexual offenses. A Washington State Patrol check of Joy's criminal file confirmed that he had no criminal history. Laidlaw also required Joy to undergo drug and alcohol testing and a physical and mental exam to determine whether he was fit to be a school bus driver. Finally, Laidlaw contacted Joy's employers for the past 10 years, including a local convalescent center. The center could provide no information other than that Joy had been employed there for nearly 10 years. After completing these tests as well as extensive classroom and behind-the-wheel training and personal interviews, Joy was certified as a bus driver by the Seattle School District and the Superintendent of Public Instruction.
Around March 30, 1992, Joy sexually assaulted two young passengers, M. and D. Joy was convicted on criminal charges for the assault. In November 1993, Lilly and Tran filed this action alleging breach of contract and tort claims. Defendants filed separate motions for summary judgment which the trial court granted.
"A motion for summary judgment may be granted only if, 'after viewing all the pleadings, affidavits, depositions, admissions and all reasonable inferences drawn therefrom in favor of the nonmoving party', the trial court finds, '(1) that there is no genuine issue as to any material fact, (2) that all reasonable persons could reach only one Conclusion, and (3) that the moving party is entitled to a judgment as a matter of law'." Higgins v. Stafford, 123 Wash. 2d 160, 168-69, 866 P.2d 31 (1994) (quoting Peterick v. State, 22 Wash. App. 163, 180-81, 589 P.2d 250 (1977)). Appellants do not dispute any facts on appeal. We review the trial court's decision de novo. Tollycraft Yachts Corp. v. McCoy, 122 Wash. 2d 426, 431, 858 P.2d 503 (1993).
Appellants first contend that they are entitled to recover tort damages as third party beneficiaries to the contract between Laidlaw and the district. They argue that Laidlaw breached the contract when it hired Joy. The contract provides that, for the purpose of this contract and interpretation thereof, it must be recognized that the transportation of school children is a significantly specialized function. Students must be transported to and from school regularly, promptly, safely and without interruption or adverse incidents. The interests of students in such transportation shall take precedence over the interests of the Contractor and its drivers. It shall be the primary obligation of the Contractor to conduct its activities so that the students will be assured of continuous and reliable service. It is required that for the protection of students, drivers and all other persons coming in contact with the students must be of stable personality and of sound moral character. The District places upon the Contractor full responsibility for assuring such qualities in personnel. The Contractor shall not allow any person to drive a school buses whose moral character is not of the highest level, or whose conduct might in any way expose any child to any impropriety of word or conduct whatsoever, nor shall the Contractor allow any person to drive a school bus who is not in a condition of mental and emotional stability. And in performance of the Contract, Contractor shall comply in every respect with all codes, statutes, laws of the City of Seattle, King County, and the State of Washington, and with all other uniform standards established for the protection of health and safety of the children being transported.
Although we assume without deciding that appellants are third party beneficiaries and that they could recover for personal injuries in a breach of contract action, we find that Laidlaw did not breach its contract. Laidlaw established procedures for the safe and reliable pick up and delivery of school children as well as procedures for screening applicants for bus driver positions. Joy was trained in all of these procedures and examined thoroughly to determine whether he was physically and mentally fit to be a school bus driver. Joy passed all of these extensive tests prior to beginning work with Laidlaw. In short, Laidlaw, the contractor, took all possible steps to assure that it complied with the contract. We can conceive of nothing further it should or could have done under the contract to protect M. and D.
Appellants next contend that Laidlaw should have been held strictly liable in tort because the school bus is a common carrier, and common carriers are strictly liable for assaults on passengers by employees. McDonald v. Irby, 74 Wash. 2d 431, 445 P.2d 192 (1968). Whether a carrier is a "common carrier" subject to absolute liability is a question of law. McDonald, 74 Wash. 2d at 435. Washington has consistently applied a 3-part test to make this determination: (1) Is the carriage part of the business? (2) Is the carriage for hire or remuneration? and (3) Is the carriage for service to the general public, holding out its business to the community as a whole? McDonald, 74 Wash. 2d at 435. A school bus is not for hire by the general public, and is not subject to the absolute liability standard. *fn1 Alternately, appellants contend that, even if Laidlaw is not subject to absolute liability, it was negligent because it did not use appropriate care in hiring Joy. An employer may be liable an employee's torts if it negligently hires that employee. Scott v. Blanchet High Sch., 50 Wash. App. 37, 43, 747 P.2d 1124 (1987), review denied, 110 Wash. 2d 1016 (1988). Appellants argue that Laidlaw's screening process was inadequate to determine whether Joy was an appropriate bus driver because his former employer had a policy against completing employment references and therefore could not provide any information about Joy. They argue that Laidlaw should be required to have affirmative proof that Joy was of good character and a mere lack of proof that he was not is insufficient. But Laidlaw checked Joy's criminal record and required him to undergo physical and mental examinations specifically targeted to determining whether he was fit to be a school bus driver. It interviewed Joy twice and provided employee disclosure forms and employment manuals explaining the employee policies. The law does not require Laidlaw to seek affirmative evidence of good character, and we do not believe that there are additional steps that Laidlaw could have taken to determine whether Joy was fit to drive a school bus. Therefore, the trial court correctly found that there was no material factual issue about whether Laidlaw was negligent when it hired Joy, and summary judgment was appropriate.
Lilly and Tran finally contend that the school district and the superintendent failed to take adequate precautions to protect the students from assaults during their transportation to and from school. "A school district has a duty to anticipate reasonably foreseeable dangers and to take precautions to protect the children in its custody from such dangers. The child may sue the school district for injuries resulting from its failure to protect the child." Tardiff v. Shoreline Sch. Dist., 68 Wash. 2d 164, 170, 411 P.2d 889 (1966). "Normal rules of tort law" apply in such an action. McLeod v. Grant County Sch. Dist. 128, 42 Wash. 2d 316, 319, 255 P.2d 360 (1953). Appellants argue that the school district must have known that bus drivers may present a danger to the children both because it included a clause about moral character in the contract with Laidlaw and because former WAC 180-20-215(2)(d) requires all bus drivers to be of good moral character. *fn2 We will assume they are correct that predatory bus drivers are a foreseeable risk against which the school district is required to guard. However, as we have determined, Laidlaw exercised extreme care screening applicants for its bus driver positions. The trial court correctly found that the school district met its duty to protect the children from dangers, and defendants were entitled to summary judgment.