I concur with the majority's handling of appellants' first, second, and fourth assignments of error; I concur, in part and dissent, in part, with the majority's handling of appellants' third assignment of error. *Page 618
In my view, appellants, Tamara S. Hensley and Mark A. Robinson, successfully pled their common-law negligence and wrongful death claims regarding Christina Nettles against TARTA and the board.
I would reverse and remand to the trial court for further consideration of those issues only.
APPENDIX A IN THE COURT OF COMMON PLEAS, LUCAS COUNTY, OHIO TAMARA S. HENSLEY, et al., Plaintiffs, vs. TOLEDO AREA REGIONAL TRANSIT AUTHORITY, et al., Defendants. Case No. CI95-2710 OPINION AND JUDGMENT ENTRY J. RONALD BOWMAN, Judge.
I * * *
II * * *
III To paraphrase The Honorable Robert L. Marrs,2 the first question before the Court is essentially this: when students are transported to and from school on a Toledo Area Regional Transit Authority bus, is that bus subject only to the requirements set forth in R.C. 4511.78? Or, is it a "school bus" as defined in R.C. 4511.01 (F) and therefore subject to the statutory provisions and agency rules regarding the safety and operation of school buses?3 [Footnotes renumbered throughout.] *Page 619
A First, TARTA asserts and the Court agrees that TARTA is a "regional transit authority" created under R.C. 306.30 to R.C. 306.53, inclusive.4 Plaintiffs argue that, because a regional transit authority is not one of the four types of transit systems whose buses are specifically excluded from the definition of "school bus" under R.C. 4511.01 (F) and the buses in question otherwise meet the provisions of the statute, those TARTA buses which provide transportation for students to and from school are therefore "school buses."
R.C. 4511.01 states in pertinent part:
"As used in this chapter and in Chapter 4513 of the Revised Code:
"* * *
"(F) `School bus' means every bus designed for carrying more than nine passengers which is owned by a public, private, or governmental agency or institution of learning and operated for the transportation of children to or from a school session or a school function, or owned by a private person and operated for compensation for the transportation of children to or from a school session or a school function, provided `school bus' does not include a bus operated by a municipally owned transportation system, a mass transit company operating exclusively within the territorial limits of a municipal corporation, or within such limits and the territorial limits of municipal corporations immediately contiguous to such municipal corporation, nor a common passenger carrier certified by the public utilities commission unless such bus is devoted exclusively to the transportation of children to and from a school session or a school function, and `school bus' does not include a van or bus used by a licensed child day-care center or type A family day-care home to transport children from the child day-care center or type A family day-care home to a school if the van or bus does not have more than fifteen children in the van or bus at any time."
Although TARTA readily admits it is not "a municipally owned transportation system, a mass transit company operating exclusively within the territorial limits of a municipal corporation, or within such limits and the territorial limits of municipal corporations immediately contiguous to such municipal corporation, nor a common passenger carrier certified by the public utilities commission," both *Page 620 TARTA and the Board of Education vehemently deny that those TARTA buses which transport students to and from school fall within the definition of "school bus" under R.C. 4511.01 (F). Defendants assert that the only statutory provision which is applicable to TARTA in this case is R.C. 4511.78, which states:
"(A) As used in this section:
"(1) "mass transit system means any county transit system, regional transit authority, regional transit commission, municipally owned transportation system, mass transit company operating exclusively within the territorial limits of a municipal corporation, or within such limits and the territorial limits of municipal corporations immediately contiguous to such municipal corporation, and any common passenger carrier certified by the public utilities commission, that provides transportation for children to or from a school session or a school function.
"(2) "Bus means every motor vehicle designed for carrying more than nine passengers and used for the transportation of persons, but does not mean any school bus as defined in section 4511.01 of the Revised Code.
"(B) Whenever a mass transit system transports children to or from a school session or school function, the mass transit system shall provide for:
"(1) Periodic safety inspections of all buses used to provide transportation service. The inspections shall be based on rules adopted by the public utilities commission under Chapters 4921. and 4923. of the Revised Code to ensure the safety of operation of motor transportation companies and private motor carriers.
"(2) The safety training of all drivers operating buses used to provide transportation service;
"(3) The equipping of every bus with outside rearview mirrors meeting the motor carrier regulations for bus equipment adopted by the federal highway administration. No exclusions from this requirement granted under the federal regulations shall be considered exclusions for the purposes of this division."
Defendants argue that a plain reading of R.C. 4511.78 clearly provides that those TARTA buses which transport children to and from school do not fall within the definition of a "school bus." Therefore, the statutory provisions regarding the safety and operation of school buses are inapplicable. Plaintiffs counter that R.C. 4511.78 (A)(2) specifically retains the definition of "school bus" set forth in R.C. 4511.01 (F), and that the statute merely adds safety requirements for those buses which are not defined as "school buses." (Plaintiff's Motion for Summary Judgment at page 12.) *Page 621
B The primary purpose of the courts in the interpretation or construction of a statute is to give effect to the intention of the General Assembly, as gathered from the provisions enacted, by the application of well-settled rules of interpretation. State exrel. Shaker Heights Pub. Library v. Main (1948), 83 Ohio App. 415,38 Ohio Op. 464, 80 N.E.2d 261. When determining a statute's legislative intent, "a court must first look to the language of the statute itself * * *." Provident Bank v. Wood (1973), 36 Ohio St. 2d 101,65 O.O.2d 296, 304 N.E.2d 378. "* * * If that inquiry reveals that the statute conveys a meaning which is clear, unequivocal and definite, at that point the interpretive effort is at an end and the statute must be applied accordingly." Id. See, also, Sears v. Weimer (1944), 143 Ohio St. 312, 28 Ohio Op. 270,55 N.E.2d 413 (unambiguous statutes are to be applied, not interpreted).
R.C. 4511.78 on its face applies to the transportation of school children to or from a school session or school function by a mass transit system. Without intending to be redundant, R.C. 4511.78 specifically provides that, as used in that section of the Revised Code: (1) "mass transit system" means any "regional transit authority" that provides transportation for children to or from a school session or a school function; (2) "bus" does not mean any school bus as defined in R.C. 4511.01; and (3) whenever a mass transit system transports children to or from a school session or school function, it shall provide for periodic safety inspections of all buses used to provide transportation service, the safety training of all drivers operating buses used to provide transportation service, and the equipping of every bus with outside rearview mirrors.
The clear and unambiguous language of R.C. 4511.78 does not lend itself to plaintiffs' interpretation that it "specifically retains the definition of `school bus' under R.C. 4511.01 (F)." (Plaintiffs' Motion for Summary Judgment at page 12.) Such an interpretation is difficult, if not impossible, to reconcile with the plain wording of the statute. Though R.C. 4511.01 clearly and unambiguously provides that the definition of "school bus" in division (F) is applicable to both Chapter 4511 and Chapter 4513 of the Revised Code, R.C. 4511.78 just as clearly and unambiguously provides that, as used in that section, "bus" doesnot mean any school bus as defined in R.C. 4511.01. If the General Assembly intended that the definition of "school bus" or any statutory provision regarding the safety and operation of a school bus was to apply to any provision of R.C. 4511.78, it could just as easily have said so in the statute. However, no such reference may be found. In fact, the term "school bus" is conspicuously absent from the text of the statute, with the sole exception of its use in division (A)(2). *Page 622
In view of the above, the Court finds that, whenever the Toledo Area Regional Transit Authority provides transportation for children to or from a school session or a school function, said mass transit system is subject to R.C. 4511.78, as applied, and such buses are therefore not "school buses" as defined in R.C. 4511.01 (F). Further, this Court finds that, as R.C. 4511.75,4511.77 and 4511.771 pertain only to school buses, said statutory provisions are therefore inapplicable. R.C. 4511.78 on its face only requires a mass transit system to provide those safety measures which are enumerated therein when transporting school children. Accordingly, as to this portion of the arguments of the respective parties, the Court finds that there exists no genuine issue of material fact and that defendants TARTA and the Board of Education are entitled to summary judgment as a matter of law.
C 1 Assuming the intention of the General Assembly is unclear, the courts, in determining the intention of the legislature, are under a duty, if the language of a statute fairly permits, to construe it so as to avoid an absurd or grotesque result. Stateex rel. Cooper v. Savord (1950), 153 Ohio St. 367, 41 Ohio Op. 396,92 N.E.2d 390. A court has no legislative authority and "should not make their office of expounding statutes a cloak for supplying something omitted from an act by the General Assembly."State ex rel. Foster v. Evatt (1944), 144 Ohio St. 65, 29 Ohio Op. 4,56 N.E.2d 265. "The question is not what did the General Assembly intend to enact, but what is the meaning of that which it did enact." Id. There exists no authority under the rules of statutory construction to add to, enlarge, supply, expand, extend, or improve the provisions of a statute to meet a situation not provided for. Id. Moreover, where a statute defines terms used therein which are applicable to the subject matter affected by the legislation, such definition controls in the application of the statute. Terteling Bros. v. Glander (1949),151 Ohio St. 236, 39 Ohio Op. 60, 85 N.E.2d 379.
There is no question that a "regional transit authority" is not one of the four specifically enumerated transportation systems whose buses are excluded from the definition of "school bus" under R.C. 4511.01. However, given the express language of R.C. 4511.78, it would seem difficult to conclude, and indeed the Court does not conclude, that the General Assembly intended that a regional transit authority bus that provides transportation for children to or from school may still be a "school bus" as defined in R.C. 4511.01. If that was the legislature's intent, it is not clearly expressed in the text of the statute. To the contrary, as discussed above, the only time the General Assembly did use the *Page 623 term "school bus" was when it specifically said that, as used in R.C. 4511.78, "bus" does not mean any school bus as defined in R.C. 4511.01.
Further, if the General Assembly meant for the statutory provisions regarding the safety and operation of school buses to apply to mass transit system buses which transport children to and from school, the wording of the statute does not clearly express such a manifest intent. Instead, the express language of the statute requires that a mass transit system shall provide for safety inspections, driver safety training, and outside rearview mirrors. Nothing more. The Court may not speculate as to whether or not the General Assembly intended that a mass transit system provide for any additional safety requirements under R.C. 4511.78 other than those which the statute on its face clearly mandates. "It is a well established doctrine that every public statute has or is supposed to have as its objective some purpose or policy whereby the public welfare is served." Bailey v. Evatt (1944),142 Ohio St. 616, 27 Ohio Op. 534, 53 N.E.2d 812, paragraph one of the syllabus. When the statutory provision in which the General Assembly expresses that purpose or policy is clear and unambiguous, the Court may not expand or improve upon its terms.
2 Again, assuming the intent of the General Assembly to be unclear, the court, in determining the intention of the legislature, may consider among other matters:
"(A) The object sought to be attained;
"(B) The circumstances under which the statute was enacted;
"(C) The legislative history;
"(D) The common law or former statutory provisions, including laws upon the same or similar subjects;
"(E) The consequences of a particular construction;
"(F) The administrative construction of the statute." R.C. 1.49.
a First, it is evident from the proposed text of Sub. H. B. No. 234 as introduced in 1975, as well as the committee notes regarding the bill, that members of the General Assembly had in mind the following:
"Present law relating to school bus operation, equipment, identification, and the conduct of drivers of other vehicles in regard to such buses, does not apply to a transit-type bus that is being used for the transportation of school children, unless the bus is used exclusively for that purpose and therefore qualifies as a `school bus' under the school bus definition." (Committee Notes to Sub. H.B. No. 234 as introduced January 30, 1975.) *Page 624
Further, the stated purpose of the bill when introduced, as reported by the H. Hwys. Hwy. Safety Committee, was "to provide children riding to or from school on public transit buses with the same protection in traffic that current law extended to children on school buses." (Emphasis added.) (Committee Notes to Sub. H. B. No. 234 as reported by the H. Hwys. Hwy. Safety Committee July 17, 1975.)
In pertinent part, the bill as introduced would have enacted R.C. 4511.772, which would provide that every transit bus used to transport children to and from school pursuant to a contract with a local board of education would be defined as a "school transit bus" whenever, but only whenever, such bus was being used for that purpose. At those times, the bus would be required to be equipped and operated in a manner similar to a school bus. In addition, the bill would amend R.C. 4511.01 to include regional transit authorities as one of the types of transit systems excluded from that section of the Revised Code. This was premised on the observation that such buses were not specifically so excluded and there was concern that they may be regarded as school buses when used to transport school children, even though such transportation was incidental to their use for other transit purposes. (Committee Notes to Sub. H. B. No. 234 as reported by the H. Hwys. Hwy. Safety Committee July 17, 1975.)
The bill, however, went through several changes before the General Assembly adopted the version which was enacted as R.C. 4511.78. The stated purpose of Sub. H. B. No. 234, as reported by the S. Transportation Local Govt., was "to provide children riding to or from school on public transit buses with protectionsimilar to that extended under current law to children on school buses." (Emphasis added.) (Committee Notes to Sub. H. B. No. 234 as reported by the S. Transportation Local Govt. April 6, 1976.) The version of Sub. H. B. No. 234 which eventually was enacted as R.C. 4511.78 states that it is a bill:
"To enact section 4511.78 of the Revised Code to require that mass transit systems transporting school children provide for bus safety inspections, bus driver safety training, and the use on buses of rear-view mirrors meeting federal equipment standards."
Plaintiffs are correct in that the version of the bill which was adopted and enacted as R.C. 4511.78 did not add "regional transit authorities" as one of the transit systems whose buses are specifically excluded from the definition of "school bus" on the face of R.C. 4511.01 (F). However, when considering the stated purpose and language of the successive versions of the bill, in light of the express language of the version enacted as R.C. 4511.78, the Court does not agree with plaintiffs' assertion that the General Assembly intended that regional transit authorities such as TARTA "cannot provide transportation of school *Page 625 children as an exception to school bus operation unless they would also fit within one of the four recognized exceptions"5 under R.C. 4511.01 (F).
Again, an unambiguous statute is to be applied, not interpreted. Weimer, supra. The express language of R.C. 4511.78 as enacted may not subsequently be massaged by the Court to supply provisions the General Assembly omitted from its text. Even assuming that R.C. 4511.78 is ambiguous, it would seem that the intent of the General Assembly when it enacted R.C. 4511.78 is rather clear, i.e., what are the safety measures a mass transit system must provide when it transports children to and from school, not what are the additional safety measures it must provide.
b R.C. 3327.01 provides in pertinent part:
"Notwithstanding division (D) of section 3311.19 and division (D) of section 3311.52 of the Revised Code, this section and sections 3327.011 and 3327.012 of the Revised Code do not apply to any joint vocational or cooperative education school district.
"In all city, local, and exempted village school districts where resident school pupils in grades kindergarten through eight live more than two miles from the school for which the state board of education prescribes minimum standards pursuant to division (D) of section 3301.07 of the Revised Code and to which they are assigned by the board of education of the district of residence or to and from the nonpublic school which they attend the board of education shall provide transportation for such pupils to and from such school except when, in the judgment of such board, confirmed by the state board of education, such transportation is unnecessary or unreasonable.
"In all city, local, and exempted village school districts the board may provide transportation for resident school pupils in grades nine through twelve to and from the high school to which they are assigned by the board of education of the district of residence or to and from the non-public high school which they attend for which the state board of education prescribes minimum standards pursuant to division (D) of section 3301.07 of the Revised Code.
"In determining the necessity for transportation, availability of facilities and distance to the school shall be considered.
"* * *
"The cost of any transportation service authorized by this section shall be paid first out of federal funds, if any, available for the purpose of pupil transportation, *Page 626 and secondly out of state appropriations, in accordance with regulations adopted by the state board of education.
"No transportation of any pupils shall be provided by any board of education to or from any school which in the selection of pupils, faculty members, or employees, practices discrimination against any person on the grounds of race, color, religion, or national origin." (Emphasis added.)
Thus, at a minimum, the Board of Education is required to provide transportation to Toledo Public School children in grades kindergarten through eight who live more than two miles from school, though it has the option of providing transportation to students in grades nine through twelve.
Chapter 3301-83 of the Ohio Administrative Code provides rules and regulations promulgated by the Ohio Department of Education regarding the operation and safety of pupil transportation. Specifically, Ohio Arm. Code 3301-83-19 reads in pertinent part as follows:
"3301-83-19. AUTHORIZED VEHICLES FOR TRANSPORTATION OF PUPILS TO AND FROM SCHOOL AND SCHOOL-RELATED EVENTS
"(A) School buses
"All vehicles designed to carry more than nine passengers, not including the driver, and used to transport students to and from school or school-related events shall meet or exceed all federal regulations and the Ohio school bus minimum construction standards (division (F) of section 4511.01 of the Revised Code).
"(B) Public transit vehicles
"This includes vehicles owned and operated by regional transit authorities or community transit authorities, or which are privately owned, under contract with a board of education or county board of mental retardation and developmental disabilities and operated on routes designed for the purpose of transporting farepaying passengers and eligible students simultaneously."
Division (A) of Ohio Adm. Code 3301-83-19 not only provides that "school buses" are authorized vehicles for transportation of pupils to and from school and school-related events, it specifically requires under that division that "[a]ll vehicles designed to carry more than nine passengers, not including the driver, and used to transport students to and from school or school-related events shall meet or exceed all federalregulations and the Ohio school bus minimum constructionstandards (division (F) of section 4511.01 of the Revised Code)." (Emphasis added.) Division (B) of Ohio Adm. Code 3301-83-19 provides that "public transit vehicles" — including vehicles owned and operated by regional transit authorities — are also authorized vehicles for transportation of pupils to and from school and school-related events, though makes no such requirement. *Page 627
In addition, R.C. 3317.024 (K) provides for payments to school districts for transportation operating costs. Ohio Adm. Code 3301-83-01, which provides the rule regarding the calculation of pupil transportation operation payments, provides in pertinent part:
"(E) Vehicles approved for use and operational payment
"(1) Board-owned and operated school buses--A vehicle operated by a qualified driver meeting the definition of a school bus successfully passing the annual state highway patrol safety inspection assigned a school bus identification number and painted national school bus chrome with proper black lettering. Vehicle met or exceeded Ohio school bus minimum standards at the time of construction.
"* * *
"(3) Public transit vehicles--Vehicles owned and operated byregional transit authorities, community transit authorities, or privately owned, under contract with a board of education and operated on routes designed for the purpose of transporting fare-paying passengers and eligible students simultaneously." (Emphasis added.)
Chapter 4501-1 of the Ohio Administrative Code provides rules and regulations promulgated by the Ohio Department of Public Safety regarding the transportation of pupils. Specifically, Ohio Adm. Code 4501-1-01 and 4501-1-02 provide in pertinent part as follows:
"4501-1-01 Definitions.
"Rule text
"* * *
"(G) Mass. Transit System--Any person, partnership, association or corporation engaged in the transportation of the general public over established routes under the I.C.C. or a permit issued by the Public Utilities Commission of Ohio or franchise of a political subdivision.
"(H) Dual Operation--Any person, partnership, association or corporation engaged in the transportation of the general public over established routes under the I.C.C. or a permit issued by the Public Utilities Commission of Ohio or franchise of a political subdivision and also owns one or more school buses."
"4501-1-02 Application of rules and regulations.
"Rule text
"(A) Any person, partnership, association or corporation defined as a mass transit system is exempted from these rules and regulations with the exception of Rule 4501-1-03 [Application for license]. *Page 628
"(B) Any person, partnership, association or corporation as defined under Dual Operation shall comply to all rules and regulations for school buses which they own or operate.
"(C) Any person, partnership, association or corporation engaged in the transportation of the general public and the transportation of pupils to or from school or school functions for profit and does not operate under the I.C.C. or Public Utilities Commission permit or franchise of a political sub-division shall comply to all rules and regulations."
This Court does not find that TARTA falls under the definition of "Dual Operation." Nor does the Court find that Ohio Adm. Code 4501-1-02 (C) is applicable to TARTA.
In view of the express language of R.C. 4511.78 and the legislative history, as well as the administrative rules enumerated above, it is apparent that, contrary to the arguments of the plaintiffs, TARTA is a public or mass transit system which is a separately recognized and authorized means of providing transportation for school children.
D Plaintiffs also argue that the TARTA buses which transport children to and from school are not excluded from the definition of "school buses" because, in addition to TARTA not being one of the excluded transportation systems under R.C. 4511.01 (F), those buses are operated "exclusively" for transporting children to and from school. In support of their argument, plaintiffs submit the affidavit of Michael A. Kutzke, who states that one day he attempted to board a TARTA bus but was informed by the driver that since the bus was transporting school children he could not get on. (Affidavit of Michael A. Kutzke at paragraph 2.) In addition, plaintiffs claim that the way TARTA establishes and maintains routes to provide transportation service for students as well as the method by which TARTA is reimbursed for these services by the Board of Education demonstrates that the TARTA buses which transport children to and from school are devoted exclusively to that purpose.
The Board of Education counters that those buses which transport children to and from school are not "operated for the transportation of children to or from a school session or a school function" nor are such buses "devoted exclusively to the transportation of children to and from a school session or a school function." (Defendant Board of Education's Memorandum in Support of Defendant Board of Education's Motion for Summary Judgment at pages 5-6.) TARTA, on the other hand, asserts: (1) it a regional transit authority which was not created until 1970 and therefore not contemplated in R.C. 4511.01 (F), which was enacted in 1961; *Page 629 (2) the General Assembly specifically chose not to amend R.C. 4511.01 (F) to include regional transit authorities; and (3) R.C. 4511.78 specifically governs regional transit authorities. Thus, TARTA contends it is not even necessary to reach the issue of whether or not TARTA's buses are "devoted exclusively to the transportation of school children." (Defendant Toledo Area Regional Transit Authority's Reply Brief at pages 1-2.)
Again, R.C. 4511.78 on its face applies to the transportation of school children to or from a school session or school function by a mass transit system, such as a regional transit authority. However, the statute does not include a provision similar to that of R.C. 4511.01 (F) which would provide that, under R.C. 4511.78, "bus" does not mean any school bus as defined in R.C. 4511.01 (F) "unless such bus is devoted exclusively to the transportation of school children." Nor does the express language of R.C. 4511.78 make any reference to that particular provision of R.C. 4511.01 (F). As discussed above, where its language is clear and unambiguous, a court simply may not supply something omitted from a statute by the General Assembly. Evatt, supra.
Even assuming that the General Assembly meant for such a provision to apply, in view of the depositions, affidavits, exhibits, and arguments of counsel, the Court does not find that there is raised a genuine issue of material fact as to whether or not those TARTA buses which transport school children are devoted "exclusively" to that purpose. TARTA was not created for the sole purpose of providing transportation to students in the Toledo City School District, but to provide a public transportation service available to all residents of the communities which TARTA serves.6 There is nothing before the Court which establishes that TARTA maintains a specific, separate and distinct fleet of either standard TARTA transit buses or specially identified buses which are used exclusively to transport children to and from school. Richard Ruddell, who is the general. manager of TARTA, testifies in his deposition that any member of the public may board TARTA's buses, even when carrying school children (though it is apparent most members of the general public do not ride when they are carrying school children). (Deposition of Richard Ruddell at pages 22-26.) In addition, according to the deposition testimony of William Herr, the Director of Planning for TARTA, non-students have been observed aboard TARTA buses contemporaneously with students. (Deposition of William Herr at pages 22-26. See, also, Deposition of Sharon Dart-Roughten at pages 18-20.) Moreover, plaintiffs themselves "concede as fact that occasionally a non-school child will ride a TARTA bus on a `school route.'" (Plaintiffs' Memorandum Contra Motions for Summary Judgment by TARTA and Board at page 6.) See, also, Deposition of *Page 630 Brandie Collins at pages 37-38 (Ms. Collins's testimony regarding her observing adults getting on the TARTA buses).
In view of the above, as to this portion of the respective arguments of the parties, the Court finds that there is no genuine issue of material fact and defendants TARTA and the Board of Education are entitled to judgment as a matter of law.
2 Judge Marrs addressed questions similar to the ones raised by the parties herein in Ganguli v. Southwest Ohio RegionalTransit Authority ([file date illegible]), Hamilton C.P. No. A 7908616, unreported.
3 See, e.g., R.C. 4511.75 (B) (requiring every school bus to be equipped with amber and red visual signals meeting the requirements of R.C. 4511.771 as well as requiring an automatically extending stop warning sign); R.C. 4511.75 (D) (requiring school buses operating on divided highways or on highways with four or more lanes of traffic to receive and discharge school children on their residence side of the highway); R.C. 4511.75 (E) (no school bus driver shall start his or her bus until after any child who may have alighted therefrom has reached a place of safety on his or her residence side of the road); and R.C. 4511.77 (requiring school buses to be painted national school bus chrome number two and marked on the front and rear with the words "school bus" in black lettering as prescribed therein).
4 See Toledo City Ordinance 818-70 and the amendments thereto.
5 Plaintiffs' Post-Hearing Memorandum at page 4.
6 See Toledo City Ordinance 818-70 and the amendments thereto.