DennisBeaverAugust 24, 2013 • By Dennis Beaver

Should a school bus driver do something more than just yell at the attackers to stop and call 911 when a child on their bus has become a victim of an assault by other students?

You have probably heard about the Florida school bus driver who refused to intervene as three teenage students viciously beat up a 13-year-old boy in July, all of it captured on the bus video.

The poor kid winds up with a broken arm and two black eyes. Beyond calling his dispatcher — saying, “They are going to kill him!” — and standing close enough to grab one of the little thugs, the driver does nothing.

And just what was his excuse? “I was too afraid, I wanted to help him so bad. I wanted to help him so bad!” According to his school district’s policy, a driver is only required to report the incident.

Not exactly Capt. Courageous

“We are not supposed to talk with the press, but this Florida case so angers me that I feel it is important for the public to realize that not all bus drivers or school districts are as cowardly,” the manager of one Southern California school transportation department told You and the Law. (We agreed to not use his name.)

“When I saw the video and heard this driver say that he wanted to help but just stood there, suddenly I heard ‘cluck-cluck!’ We tell our drivers that they have a duty to do whatever is possible to protect kids without putting themselves at risk. This Florida bus driver is a coward.

“Unless you are threatened with a billy club, gun or knife, there is no option. You have to at least try to intervene, and the video shows a complete failure of the driver to act responsibly.

“A school bus can be like a war zone. Fear is normal, but your job demands taking action and just telling the kids to stop fighting often won’t cut it. This guy is no Capt. Courageous and should be prosecuted for child endangerment,” he said.

The local police department where the incident occurred also felt this was a clear case of child neglect and referred the matter for prosecution.

You and the Law seldom recommends racing to the courthouse and filing suit, but some situations beg for it. This could very well be one, however.

Before reaching that conclusion, just what is the law in this type of a situation?

Are school bus drivers legally obligated to do more than merely calling their dispatcher, and if so, what is required?

As you will see this week and next, there are both legal and practical answers, all of which raise more questions.

Did the bus driver have a legal duty to intervene or rescue?

We discussed the facts of this case with Harvard Law School professor John Goldberg, one of America’s recognized experts in the law of negligence, asking if the driver should have done more.

“As surprising as it may seem, there is generally no duty to intervene or take steps to go to the aid of another person,” Goldberg said. “Yet there are exceptions requiring that we help — for example auto accidents — where, regardless of whose fault it is, if you are in an accident the law requires taking some steps to help the injured.

“Perhaps the most important legal requirement of going to another person’s aid is where there is a special relationship between the victim and would-be rescuer, such as parent and child, store and customer, teacher and student, or employer and employee.

“A school bus driver might well be in the same position as a teacher, and have a duty to intervene, as children are directly in the driver’s care.

“But it’s what the courts in that state have said that establishes the bus driver’s legal duty, if there is such a duty and how far it extends.”

Assume there is a duty to intervene. What does the driver have to do?

“The duty is to take reasonable steps to assist, not guarantee the victim’s safety. And reasonableness depends upon risk to the rescuer.

“You do not have to expose yourself to being beaten by people with clubs, for example,” said Goldberg.

“A 63-year-old man might reasonably fear being injured by the attackers. If a jury agrees, he would not be obligated to do anything other than what he did.

“Still, I think a lawyer for the victim and the family would take this case,” the Harvard law professor concluded.

Could this attack have been prevented by a properly trained, quick thinking and quick acting bus driver?

Next week we’ll have the answer in a story of special interest to school bus drivers everywhere.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.