When the little girl woke up she was in a dark, empty school bus, parked in the bus barn. She was unable to get herself out of the safety seat. When her mom showed up at the Head Start program to serve as a chaperone for a field trip, she was surprised to find out that her four-year old daughter had not been dropped off that morning. No one had told her. Mom immediately called the bus driver who responded “Oh my God!....I’ll call you right back.” Click.
Whoops. You can guess how this happened. The little girl fell asleep on the bus and the driver failed to check to make sure that everyone got off at the Head Start program. The driver then delivered the bus to the barn, and went on about her day. The four-year old was left alone on the bus for about 75 minutes before she was rescued.
The lawsuit alleged that this was not only an act of negligence—it was a violation of the U.S. Constitution. Specifically, the allegation is that the school district “seized” the child in a way that is governed by the 4th Amendment.
Cases alleging an illegal “seizure” usually involve handcuffs, or other use of force by law enforcement—not buckling a child into a safety seat on the school bus. Obviously the original “seizure” was simply designed to guarantee safety. No problem there. But the court noted that “a seizure under the 4th Amendment that starts out reasonable….can become unreasonable based on duration or other circumstances.”
The court held that the mom had alleged a plausible case and thus it refused to dismiss the 4th Amendment claim. In support of its ruling the court cited the casual remark of the superintendent’s executive assistant that “things like this” happen “four or five times a year.”
They do???? And we have not put in place practices to ensure that it never happens again?
The plaintiff in this cases is urging a creative legal theory designed to take an ordinary tort that should be litigated in state court and turn it into a federal case under the Constitution. I don’t know how this one will eventually come out, but the point is pretty clear. See the Dawg Bone.
The case of Pozos Leon v. Tillamook County School District, was decided by the federal court in Oregon on May 11, 2018. We found it at 72 IDELR 61.
DAWG BONE: LET’S JUST WALK AROUND THAT BUS ONE MORE TIME.
Tomorrow: challenge matches in tennis and Asperger’s Syndrome.