(dissenting in part, concurring in part).
I respectfully dissent in part and concur in part.
The basic facts, procedural aspects and issues of this case are more fully set forth in the majority opinion.
In September 1983 Cory Jam was a seventh-grade student attending Woodland Junior High School, a school located less than two miles from his place of residence.
Independent School District # 709 (I.S.D. # 709) provides free transportation for seventh through twelfth grade students who live more than two miles from school. Since Cory Jam lived within two miles of the school, he was not a student eligible for free transportation.
Eligible students received student bus passes for use on Duluth Transit Authority (DTA) buses for purposes of free transportation to and from school. No student bus pass had been issued to Cory Jam.
There is no dispute as to whether Cory Jam was eligible for transportation between his school and his home. The applicable statute, Minn.Stat. § 123.39, subd. 1, states in part:
In any school district, the Board shall arrange for the attendance of all pupils living two miles or more from the school through suitable provision for transportation * * *
On the day of the accident, Cory Jam rode the DTA bus as a regular fare-paying passenger, paying the same forty-cent fare, he would have paid to ride a DTA bus at any time to any location; the same bus was at the same time, available for use by the general public upon payment of the required fare. Whether there were in fact other fare-paying passengers on the bus at the time of the accident is not determinative as to the status of the bus.
Respondent I.S.D. #709 had no legal obligation to provide transportation to Cory Jam. It was not providing transportation to him, and, at the time of the accident owed him no duty under the statutes relating to the operation of school buses.
The DTA bus driven by Brian Havron at the of the accident was not a “school bus” as it related to Cory Jam, and not subject to Minnesota statutes, rules and regulations relating to the safe operation of “school buses.” Thus, any question of whether the DTA owes to eligible students the duty to paint its buses yellow and equip them with flashing lights and stop signal arms is not germane to the issues in this case.
I would affirm the trial court’s award of summary judgment to I.S.D. # 709 on the ground that at the time of the accident it owed no duty to Cory Jam; and its award of summary judgment to DTA on the ground that at the time of the accident the bus on which Cory Jam was riding was not a “school bus” as it related to him, and that DTA owed him no duty under the statutes.
Under the facts of this case, it was error for the trial court to decide as a matter of law that DTA had fulfilled all of its responsibilities to Cory Jam.
A common carrier must exercise the highest degree of care toward its passengers consistent with its undertaking. See Ford v. Stevens, 280 Minn. 16, 157 N.W.2d 510 (1968); Swanson v. Minneapolis Street Railway Company, 252 Minn. 484, 90 N.W.2d 514 (1958). Whether DTA had exercised this standard of care toward *172Cory Jam presented a genuine issue of material fact that could not be disposed of by summary judgment.
I would reverse and remand for trial on the issue of whether the DTA had fulfilled all common law duties of care which it owed to Cory Jam at the time of the accident.