* Reporter's Note: A discretionary appeal to the Supreme Court of Ohio was not allowed in (1997), 80 Ohio St. 3d 1422,685 N.E.2d 237. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 605 This case is before the court on appeal from a judgment of the Lucas County Court of Common Pleas that granted the motions for summary judgment of defendants-appellees Toledo Area Regional Transit Authority ("TARTA") and Board of Education of the Toledo City School District ("the board"). In addition, the trial court denied the motion of plaintiffs-appellants Tamara S. Hensley et al. for summary judgment on their injunction request and denied their motion for preliminary injunction. *Page 606
The relevant facts of this case are undisputed and are set forth in the trial court's decision as follows.
"On the afternoon of September 21, 1994, Christina M. Nettles, a twelve-year-old minor and student who attended East Toledo Junior High School, was struck by a tow truck while attempting to cross Woodville Road in Lucas County, Ohio, after getting off a Toledo Area Regional Transit Authority ("TARTA") bus which she had been riding home from school. [Footnote omitted.] Christina died several days later as a result of her injuries.
"In a similar incident, Matthew Minton, a student at Byrnedale Junior High School, was struck by an automobile and seriously injured on October 18, 1995, while attempting to cross Airport Highway in Lucas County, Ohio, after getting off a TARTA bus which he had been riding home from school.
"In both incidents, the TARTA buses on which Christina and Matthew had been riding were not equipped with the types of safety features and equipment required on `school buses' by Ohio statutes and agency rules. Nor were the buses operated pursuant to certain Ohio statutes and agency rules applicable to the operation and safety of school buses, such as the requirement under R.C. 4511.75 (D) that school buses operating on highways with four or more lanes of traffic receive and discharge all school children on their residence side of the highway. [Footnote omitted.]
"Instead, both Christina and Matthew were students within the Toledo City School District who were eligible, to be transported to and from school on standard TARTA transit buses in accordance with an agreement entered into between the Board of Education of the Toledo City School District (`Board of Education') and TARTA. Pursuant to the terms of the agreement, TARTA provides transportation to and from school for designated students residing within the Toledo City School District on regular transit routes. Eligible students are not required to pay a fare, but carry passes issued by the Board of Education which allow the students to board and ride TARTA's buses during designated hours. TARTA invoices the Board of Education each month for the number of school days for which transportation service is provided, and is reimbursed according to a formula set forth in the agreement. The Board of Education and TARTA first entered into such an agreement in the early 1970's, and since the early 1980's there have been no substantial changes in the basic agreement other than in the formula used in calculating reimbursement. The agreement which [was in effect at the relevant times herein] commenced July 1, 1995, and end[ed] June 30, 1996."
Tamara S. Hensley, a taxpayer and the mother of Christina Nettles, and Mark A. Robinson, Special Administrator of the Estate of Christina M. Nettles, filed the original complaint in this case on September 29, 1995 on behalf of themselves *Page 607 and all others similarly situated, which, in general, sought injunctive relief and damages for personal injuries. On October 5, 1995, the trial court filed an order, which, among other things, bifurcated the injunction issues for trial from the personal injury/tort relief aspects of the case. Subsequently, on November 15, 1995, after Matthew Minton was injured, an amended complaint was filed in the court below. Additional plaintiffs named in the amended complaint were Lena Ann Kutzke, for herself and as the next friend of Matthew Minton; Pat Collins, for herself as a taxpayer and as the next friend of Brittany and Brandie Collins, both public school students in the Toledo Public School District; and Bob Hartford, for himself as a taxpayer and as the next friend of Holly Hartford, a public school student in the Toledo Public School District. The defendants remained the same. The claims in the amended complaint can be summarized as follows:
"(1) Count I sought injunctive relief on behalf of Tamara Hensley, Mark Robinson, Lena Ann Kutzke, Pat Collins and Bob Hartford. Specifically, the count alleged that the Board transports approximately forty percent of its school children in its own fleet of yellow school buses which comply with state safety laws, and approximately sixty percent of its school children on TARTA buses which do not comply with R.C. 4511.75,4511.77, 4511.771 or other statutes providing for the safe busing of school children. The count further alleged that Toledo City School children attending schools on the east side of the Maumee River (`East Toledo') are allocated none of the complying school buses owned and operated by the Board but are bused exclusively on non-complying TARTA buses. The count then alleged that the TARTA buses were in violation of the statutes which provided for the safe busing of school children and that the busing scheme violated the equal protection rights of the children who were transported on TARTA buses. Count I then demanded: (a) an order enjoining TARTA and the Board from operating buses for the transportation of nine or more school children to or from school sessions or functions unless said buses are in compliance with the statutory provisions regarding the safe operation of school buses; (b) an order enjoining the Board from making any further payment on its contract with TARTA for the transportation of school children unless such transportation is provided in buses that are in compliance with the statutory provisions regarding the safe operation of school buses; and (c) an order requiring TARTA and the Board to equip and operate all buses that carry school children to or from school sessions or functions in compliance with the statutes providing for the safe busing of school children.
"(2) Counts II and III of the amended complaint set forth claims for the personal injuries and wrongful death of Christina Nettles and alleged that as a proximate result of the negligence, willfulness and statutory violations of TARTA *Page 608 and the Board, Christina Nettles suffered severe personal injuries and died. Pursuant to Counts II and III, Mark Robinson, as the administrator of Christina Nettles estate, demanded judgment against all of the defendants.1
"(3) Count IV of the amended complaint set forth a claim for the personal injuries of Matthew Minton by his mother and next friend Lena Ann Kutzke. Specifically, the claim alleged that on September 28, 1995, TARTA and the Board were put on notice that the manner in which they transported school children on TARTA buses was unlawful. It then alleged that on October 18, 1995, Matthew Minton was struck by an automobile as he attempted to cross Airport Highway and his injuries were proximately caused by the Board's and TARTA's knowing, willful and wanton violation of state laws enacted for the safety of school children. Count IV then demanded injunctive relief on the grounds that if Matthew recovers and is able to return to school, he will be transported to school on a TARTA bus and has no adequate remedy at law to avoid such unlawful transportation. In addition Count IV demanded judgment for compensatory damages against TARTA and the Board jointly and severally.
"(4) Count V of the amended complaint set forth the Collins and Hartford appellants' claims for violations of their equal protection rights. Specifically, those appellants alleged that the Board has violated the equal protection rights of the children attending Toledo City School District public schools who are transported to school on TARTA buses which do not comply with the safety statutes referred to above. Count V further alleged that the Board had violated the equal protection rights of the students who are transported to school on TARTA buses because those students who are transported on yellow school buses are provided insurance coverage which is not provided to those students transported on TARTA buses. The appellants then sought a permanent injunction ordering the Board to provide public school students who attend East Toledo Junior High School with the same yellow school buses that it provides to public school students attending McTigue and DeVeaux Junior High Schools and a judgment against the Board for compensatory damages." (Footnote added.)
Subsequently, in an order dated November 1, 1995, the trial court reaffirmed its order of October 5, 1995, and ordered that the injunctive relief actions be bifurcated from the personal injury/tort relief portions of the litigation. *Page 609
In the court below, appellants filed a motion for summary judgment on their requests for injunctive relief. In addition, and despite the trial court's order bifurcating the injunction and tort claims, TARTA and the board filed motions for summary judgment on all of the claims set forth in the complaint. Nevertheless, in these motions and in the subsequent motions regarding summary judgment, TARTA and the board never specifically addressed the issue of any common-law negligence claims against them. On January 24, 1996, the court held a hearing on TARTA and the board's summary judgment motions and, in so doing, also addressed the issues raised in appellant's motion. At that hearing, and in the post-hearing briefs that were filed by the parties, the board asserted that summary judgment in its favor on the injunctive relief claims would resolve all claims against it. In addition, TARTA asserted that appellees had not pled a general claim of negligence against it, that appellants' claims against it were completely dependent on the success of their claims based on the statutory and constitutional violations, and that because appellants' statutory claims could not succeed neither could the negligence claims. On March 26, 1996, the trial court filed an opinion and judgment entry that thoroughly addressed the issues raised by the parties and granted TARTA and the board summary judgment on all of appellants' claims. In particular, the court held that TARTA was a separately recognized and authorized means of providing transportation for students to and from school, that TARTA was required to comply only with R.C. 4511.78, not the safety statutes covering school buses, and that the board's transportation of some school children by way of yellow school buses and others by way of TARTA buses did not violate appellants' equal protection rights. The court further determined that appellants' negligence claims were entirely dependent upon the statutory violations claims and were therefore defeated by the court's ruling on those claims. As such, the court found that there remained no genuine issue of material fact and granted summary judgment in favor of the board and TARTA. From that judgment, appellants have raised the following assignments of error:
"I. The trial court erred in overruling plaintiff's [sic] motion for summary judgment enjoining TARTA and the Board of Education of the Toledo City School District from transporting Toledo school children on TARTA buses.
"II. The trial court erred in overruling plaintiff's motion for summary judgment for injunctive and monetary relief for its deprivation of their rights to equal protection, treatment and benefits accorded other children similarly situated who are transported in `yellow' school buses that provide substantially greater safety to school children so transported.
"III. The trial court erred in granting summary judgment to TARTA and the Board of Education on their [sic] claims for negligence. *Page 610
"IV. The trial court erred in granting summary judgment to TARTA and the Board of Education on plaintiff's [sic] claims for injunctive and monetary relief on the same grounds as argued in assignments of error 1 and 2."
In their first assignment of error, appellants challenge the trial court's conclusion that, when students are transported to and from school on a TARTA bus, that bus is not a "school bus" as that term is defined by R.C. 4511.01 (F), is not subject to the safety requirements covering school buses set forth in the Ohio Revised Code and Ohio Administrative Code, and is subject only to the requirements set forth in R.C. 4511.78.
We first note that in reviewing a ruling on a motion for summary judgment, we must apply the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App. 3d 127,129, 572 N.E.2d 198. Summary judgment will be granted when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ. R. 56 (C).
This court has fully and carefully reviewed the record and law that is applicable to the issues raised under this assignment of error and finds that section III of the trial court's opinion and judgment entry is an appropriate and lawfully correct discussion of the facts and law involved in this dispute. As to the first assignment of error, we therefore adopt section III of the opinion, of the Honorable J. Ronald Bowman (see Appendix A) and find appellants' first assignment of error not well taken.
Finding under the first assignment of error that TARTA is a mass transit system which is a separately recognized and authorized means of transporting school children, and finding that TARTA is not required to comply with the safety statutes applicable to school buses, we must determine under the second assignment of error whether the board's use of TARTA buses to transport approximately sixty percent of the Toledo City School students violates those students and their taxpaying parents' rights to equal protection.
In support of their argument that the trial court erred in granting appellees summary judgment on appellants' equal protection claims, appellants' argue that the board has no rational basis for providing yellow school bus transportation to some students and TARTA transportation to others and that the statutory scheme behind the board's varying treatment of different students is not supported by a rational basis. Appellants assert that the undisputed facts reveal that the yellow school buses provide a safer means of transportation to and from school than do the TARTA buses because the yellow buses comply with the safety statutes discussed above. Appellants further contend that the children who are *Page 611 transported to and from school on yellow buses are provided with medical payments and uninsured motorist coverage insurance that do not apply to students being transported on TARTA buses. Appellants contend that under the Equal Protection Clauses of the Ohio and United States Constitutions, they have a right to the same safety standards and insurance benefits that are provided to those students who are transported on yellow school buses. In opposition, the board asserts that the undisputed evidence reveals that with the use of TARTA buses, the board is able to transport many more students than required under R.C. 3327.01, and that such transportation is accomplished in an efficient and economical manner. Accordingly, the board contends that there is a rational basis for allocating its resources as it does. Finally, the board argues that appellants failed to meet their burden of producing evidence to establish the irrationality of the board's policy regarding the transportation of Toledo City School students.
The statutory scheme discussed under the first assignment of error clearly allows a school system to transport its students by both school buses and mass transit systems. We therefore must determine whether that statutory scheme or the board's application of it is violative of appellants' rights to equal protection.
Section 2, Article I of the Ohio Constitution and theFourteenth Amendment to the United States Constitution guarantee every person equal protection under the law. Both constitutional provisions place the same limits on governmental classifications,State ex rel. Nyitray v. Indus. Comm. (1983), 2 Ohio St. 3d 173,175, 2 OBR 715, 716-717, 443 N.E.2d 962, 964, and require that no person or class of persons shall be denied the protection afforded by laws to other persons or classes in like circumstances. Toledo v. Wacenske (1994), 95 Ohio App. 3d 282,287, 642 N.E.2d 407, 410, citing Nordlinger v. Hahn (1992),505 U.S. 1, 112 S. Ct. 2326, 120 L. Ed. 2d 1. In Toledo, supra, at 287,642 N.E.2d at 410, this court stated:
"In determining whether a statute or ordinance violates the right to equal protection, a court must initially determine whether the class distinction drawn involves a suspect class or fundamental right. Roseman v. Firemen Policemen's Death BenefitFund (1993), 66 Ohio St. 3d 443, 447 [613 N.E.2d 574, 577]. If no suspect class or fundamental right is involved, the classification is subject to a `rational basis' scrutiny. Id. Under this standard, the classification does not violate equal protection if it bears a rational relationship to a legitimate governmental interest. Id."
In the present case, it is undisputed that the class distinction complained of, i.e., unequal transportation benefits, involves neither a suspect class nor a fundamental right. Accordingly, the statutory scheme must be upheld if it bears a rational relationship to a legitimate governmental interest. Finally, it is *Page 612 well established that all legislative acts are presumed to be constitutional, Adamsky v. Buckeye Local School Dist. (1995), 73 Ohio St. 3d 360, 361, 653 N.E.2d 212, 213-214, and, when no fundamental right or suspect class is implicated, the burden is on the one challenging the statutory scheme to prove its unconstitutionality beyond a reasonable doubt. RooseveltProperties Co. v. Kinney (1984), 12 Ohio St. 3d 7, 13, 12 OBR 6, 11-12, 465 N.E.2d 421, 426-427.
We will first address this issue as it relates to the transportation services themselves. As set forth above, pursuant to R.C. 3327.01, the board is required. at a minimum, to provide transportation to Toledo Public School students in grades kindergarten through eight who live more than two miles from the school they attend and may provide transportation to students in grades nine through twelve. Under the present system of utilizing both board-owned yellow school buses and TARTA buses, the board is able to provide transportation to students in grades kindergarten through twelve who live more than one mile from the school they attend. In the proceedings below, the affidavit of David B. Decsman, the Director of Transportation for the Toledo Public Schools, was filed in support of the board's briefs and memoranda. In his affidavit, Decsman stated:
"* * * it is more economical to transport students on TARTA. The fiscal efficiency of transporting many students via TARTA allows Toledo Public Schools to exceed the State minimum mandates for transporting students to and from school. Absent such an economically efficient means of transporting students, Toledo Public Schools does not currently have sufficient fiscal, human or equipment resources to enable it to exceed the minimum transportation requirements under R.C. 3327.01."
In Novak v. Revere Local School Dist. (1989), 65 Ohio App. 3d 363, 583 N.E.2d 1358, the Ninth District Court of Appeals, interpreting a different provision of R.C. 3327.01, held that the state had a legitimate interest in providing a means of access to educational facilities for students, while not unduly burdening the resources of the school district. We agree. In the present case, the Toledo School District, by using a combination of both board-owned yellow school buses and mass transit system buses, is able to provide a means of access to school to many more students than it would be able to accommodate if it used only the yellow school buses. Absent this system, the very taxpayers that are now challenging the transportation system would be required to find alternate methods of transportation for their children once those children reached the ninth grade. Similarly, children in grades kindergarten through eight who lived between one and two miles from school would be required to find alternate methods of transportation. A thorough and efficient system of common schools is a legitimate state purpose and, more importantly, is mandated by Section 2, Article VI of the Ohio Constitution, as was recently addressed in DeRolph v. *Page 613 State (1997), 78 Ohio St. 3d 193, 677 N.E.2d 733, the syllabus. In our view, the board's use of both its own yellow school buses and TARTA buses ensures that the maximum number of students is transported to school and promotes a thorough and efficient system of common schools. Accordingly, we do not find that the board's use of TARTA to transport approximately sixty percent of its students or the statutory scheme behind that use violates the Equal Protection Clauses of the Ohio and United States Constitutions.
Appellants further assert that the board provides medical payments and uninsured motorist coverage insurance to students who ride the yellow school buses but does not provide that same coverage to students who ride the TARTA buses. This difference in treatment, appellants contend, violates the equal protection rights of the children who ride the TARTA buses and of their taxpaying parents.
By raising this issue, appellants essentially asked the trial court and now ask this court to declare the rights of the parties under a contract of insurance that exists between the board and Nationwide Insurance Company. Appellants, however, never filed a complaint for declaratory judgment in the matter below. In addition, appellants have not alleged that they were denied coverage under such policy. Furthermore, no evidence was submitted in the court below regarding any insurance that may have been procured by TARTA, arguably with income earned through its contract with the board, to cover students who ride TARTA buses. Such evidence is essential to a determination of whether students who ride TARTA buses are afforded less insurance protection than students who ride board-owned buses. Given these factors, we cannot say that appellants established beyond a reasonable doubt that students who ride TARTA buses are treated differently than students who ride board-owned buses on the issue of insurance coverage. Accordingly, reasonable minds could only conclude that appellants' rights to equal protection had not been violated and that the trial court did not err in granting appellees summary judgment on the equal protection claims. The second assignment of error is therefore not well taken.
In their third assignment of error, appellants assert that the trial court erred in granting summary judgment to TARTA and the board on appellants' claims based on general negligence. Initially, appellants argue that the court erroneously granted appellees summary judgment on the personal injury and wrongful death claims because in its orders of October 5 and November 1, 1995, the court ordered that the injunctive relief claims be bifurcated from the tort claims and that the tort claims be tried at a later time. More specifically, appellants contend that their amended complaint set forth a claim against TARTA based on TARTA's duty as a common carrier, and a claim against the board based on the fact that while the students were being transported by TARTA, the board stood *Page 614 in loco parentis and thus had a duty to transport the children safely. Appellants further contend that summary judgment in the negligence claims was improper because the board and TARTA failed to meet their burden under Civ. R. 56 (C) of identifying an element that was missing from appellants' claims.
In Dresher v. Burt (1996), 75 Ohio St. 3d 280, 293,662 N.E.2d 264, 273-274, the Supreme Court of Ohio clarified the requirements under Civ. R. 56 (C) when a party files a motion for summary judgment:
"Accordingly, we hold that a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ. R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ. R. 56 (C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ. R. 56 (E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." (Emphasis sic.)
In the proceedings below, TARTA and the board moved for summary judgment on all of appellants' claims against them. In their briefs in support of summary judgment, however, they never specifically addressed any general tort claims that appellants had arguably asserted against them. At the hearing on the summary judgment motions, however, it was clear that the board and TARTA believed that appellants had asserted claims only against them based on alleged statutory and constitutional violations and that the bifurcation applied only to defendants High and Granger. In their post-hearing briefs, however, appellants expressed their understanding that they had in fact set forth basic negligence claims against TARTA and the board that, pursuant to the trial court's bifurcation order, were to be tried at a later time. Based on this understanding, appellants stated that they had not completed discovery on that issue and needed additional discovery before they could definitively address the issue. In its opinion and judgment entry, the trial court noted that TARTA and the board had specified in their summary judgment motions that they were requesting summary judgment on all of appellants' claims. The court then reviewed the merits of appellees' motions and held that appellants had not made any "specific allegation *Page 615 anywhere in their amended complaint that TARTA, as a common carrier, violated a common law duty of care to its passengers, nor is any reference made to any `common carrier' duty of care in the amended complaint or plaintiffs' written arguments, with the exception of their post-hearing brief." The court further found no reference in the amended complaint "regarding any possible liability on behalf of the Board of Education premised upon in loco parentis in any of their written arguments, with the exception of their post-hearing brief." Finally, the court found that appellants had failed to "set forth, by affidavit or otherwise, specific facts sufficiently raising a genuine issue of material fact as to whether such duties, if owed, were breached."
This assignment of error requires us to determine whether appellants alleged any common-law actions of negligence against either the board or TARTA in their amended complaint. In analyzing the complaint, we note that "with the adoption of the Civil Rules, Ohio has progressed from `fact pleading' to `notice pleading.'" Salamon v. Taft Broadcasting Co. (1984), 16 Ohio App. 3d 336,338, 16 OBR 385, 387, 475 N.E.2d 1292, 1295. Accordingly, "[u]nder Civ. R. 8 (A) and (E), a claim should concisely set forth only those operative facts sufficient to give `fair notice of the nature of the action * * *'" Id., quotingDeVore v. Mut. of Omaha Ins. Co. (1972), 32 Ohio App. 2d 36, 38,61 O.O.2d 21, 22, 288 N.E.2d 202, 203-204. In order to set forth a negligence claim, however, a complaint must allege "(1) that defendant had a duty to protect plaintiff from injury, (2) that defendant failed to discharge that duty, and (3) that defendant's breach of that duty proximately caused plaintiff's injury." Jamesv. Wright (1991), 76 Ohio App. 3d 493, 496, 602 N.E.2d 392, 394, citing Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103,51 Ohio Op. 27, 113 N.E.2d 629.
Initially we note that throughout the entire amended complaint, plaintiffs specifically allege only that TARTA and the board have duties pursuant to the statutes enacted for the safe transportation of school children. With respect to the personal injury and wrongful death allegations regarding Christina Nettles, the amended complaint avers in pertinent part:
"14. On September 21, 1994 at approximately 2:18 p.m., the TARTA bus driver, acting in the scope of his employment with TARTA and its agreement with the Board of Education, and as a school bus driver pursuant to R.C. 4511.01 (F), negligently, wilfully, and in violation of R.C. 4511.75 (D), failed to discharge Christina Nettles on her residence side of street while stopping and discharging her at approximately 1112 Woodville Road, a highway with four or more traffic lanes. *Page 616
"15. On the same date and time the said school bus driver also negligently, wilfully, and in violation of R.C. 4511.75 (B) failed to actuate an extended stop warning sign while stopping to discharge Christina Nettles.
"16. The TARTA school bus from which Christina Nettles was discharged on said date and time negligently, wilfully, and in violation of statutory requirements did not have the amber and red visual signals or the extended stop sign required by R.C. 4511.75 (B) nor did it have the words `school bus' and `stop' marked thereon as required by R.C. 4511.77.
"* * *
"18. As a proximate result of the negligence, willfulness, and the statutory violations of the defendants, Christina Nettles suffered severe personal injuries in the collision on September 21, 1994 with pain and mental anguish and medical bills exceeding $121,018.77.
"* * *
"20. As a proximate result of the negligence and the statutory violations of the defendants, Christina Nettles died eight days later on September 29, 1994 as a result of her injuries."
Paragraphs 15 and 16 clearly allege only statutory violations that, under the first assignment of error, we have determined are not valid. Although inarticulately, the fourteenth paragraph arguably alleges that the TARTA bus driver, aside from violating R.C. 4511.75 (D), violated a duty in its discharge of Christina Nettles from the bus. However, nowhere in the complaint is there any allegation of a duty owed by TARTA above and beyond the statutory duties discussed above. Similarly, nowhere in the complaint do appellants set forth any duties owed by the board to Christina Nettles above and beyond the statutory duties alleged.
We must now determine whether appellants asserted a basic claim for negligence against TARTA or the board with regard to the injuries sustained by Matthew Minton. The relevant paragraphs of the amended complaint are found in Count IV and read as follows:
"26. Defendants, Board of Education and TARTA, were put on notice on September 28, 1995 that the transportation of Toledo School District public school children to or from school sessions in TARTA buses was unlawful, TARTA not meeting any exemption in the Ohio Revised Code from state laws regarding its non-complying buses.
"27. On October 18, 1995 in knowing and willful and wanton violation of state law the Board of Education authorized and TARTA transported Matthew Minton from a school session at Byrnedale Junior High School and dropped him off at a *Page 617 stop on Airport Highway, a two lane street at such location, on a side of the highway across from his residence, and the TARTAbus driver in violation of state laws requiring him and the busto stop traffic and wait until the students crossed the highwayto their residence side, left Matthew Minton to cross said highway without protection.
"28. As a direct and proximate cause of TARTA's and the Board of Education[s] knowing and willful and wanton violation of state laws enacted for the safety of school children, Matthew Minton was struck by an automobile as he attempted to cross Airport Highway to his residence without the protection of stoppedtraffic for a school bus disembarking students." (Emphasis added.)
Again, as with the allegations regarding Christina Nettles, appellants failed to allege any common-law duty that TARTA or the board owed to Matthew Minton. but, rather, phrased all of their allegations in terms of statutory duties and violations.
Accordingly, appellants' allegations against appellees in the amended complaint were entirely dependent on perceived statutory and constitutional violations and appellants did not assert any common-law negligence claims against appellees. As such, no genuine issue of material fact remained with respect to appellants' alleged negligence claims and the trial court properly granted appellees summary judgment. The third assignment of error is therefore not well taken.
Finally, in their fourth assignment of error, appellants restate the arguments raised under the first and second assignments of error but limit the arguments to their claims for monetary relief. Regardless of the relief sought, the merits of the underlying arguments remain the same. Because we have found these arguments not well taken under the first and second assignments of error, we find the fourth assignment of error also not well taken.
On consideration whereof, the court finds that substantial justice has been done the parties complaining and the judgment of the Lucas County Court of Common Pleas is affirmed. Court costs of this appeal are assessed to appellants.
Judgment affirmed.
HANDWORK and GLASSER, JJ., concur.
SHERCK, J., dissents.
1 Kevin High and Don Granger, d.b.a. Granger Automobile, were also named defendants. The amended complaint alleged that Kevin High, while acting in the scope of his employment with Don Granger, d.b.a. Granger Automobile, struck Christina Nettles as she crossed the street. The amended complaint further alleged that High operated the Granger vehicle at an excessive rate of speed and failed to stop at least ten feet from the rear of a stopped school bus. Because these defendants were subsequently voluntarily dismissed by appellants pursuant to Civ. R. 41 (A), they will not be discussed in this decision.