ADONNIS HILL, As Father and Next Friend for Donnisha Hill (Deceased Minor) and LENEAKA JOHNSON, As Mother and Next Friend for Donnisha Hill (Deceased Minor), and THE ESTATE OF DONNISHA HILL, by and through Adonnis Hill and/or Leneaka Johnson, Administrators, Plaintiffs-Appellants, vs. DAVID A. DAMM, BRUCE EDWARD BURT, and FIRST STUDENT, INC., Defendants-Appellees.
IN THE COURT OF APPEALS OF IOWA
No. 1-332 / 10-1565
Filed July 13, 2011
ADONNIS HILL, As Father and Next
Friend for Donnisha Hill (Deceased
Minor) and LENEAKA JOHNSON,
As Mother and Next Friend for
Donnisha Hill (Deceased Minor), and
THE ESTATE OF DONNISHA HILL,
by and through Adonnis Hill and/or
Leneaka Johnson, Administrators,
DAVID A. DAMM, BRUCE EDWARD BURT,
and FIRST STUDENT, INC.,
Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,
The plaintiffs appeal the district court‟s ruling granting the defendants‟
motion for directed verdict. REVERSED AND REMANDED.
Richard A. Pundt of Pundt Law Office, Cedar Rapids, and Larry J.
Thorson of Ackley, Kopecky & Kingery, L.L.P., Cedar Rapids, for appellants.
Thomas B. Read and Carol J. Kirkley of Crawford, Sullivan, Read &
Roemerman, P.C., Cedar Rapids, for appellee First Student, Inc.
Bruce Burt, Menard, Illinois, pro se.
David Damm, Pontiac, Illinois, pro se.
Heard by Sackett, C.J., and Doyle and Danilson, JJ.
A young girl was murdered after she got off at the wrong school bus stop.
Her parents brought a negligence action against the bus company. At the close
of the plaintiffs‟ evidence, the district court directed a verdict in favor of the bus
company. The plaintiffs appeal, claiming the court erred in finding the harm
suffered by the deceased was outside the scope of the risk of the bus company‟s
This question requires us to consider the newly formulated risk
standard under the Restatement (Third) of Torts, adopted by the Iowa Supreme
Court in Thompson v. Kaczinski, 774 N.W.2d 829, 839 (Iowa 2009).
I. Background Facts and Proceedings.
Thirteen-year-old Donnisha Hill was murdered on October 27, 2006.
Donnisha lived on Lewis Street in Waterloo, Iowa, with her mother, Leneaka
Johnson. Sixty-year-old David Damm lived across the street and owned a used
car dealership several blocks away.
On October 11, Donnisha told her mother she was going to a friend‟s
house to play. After Donnisha left, her friend called looking for her. Leneaka
called Donnisha‟s father, Addonis Hill, and asked him to help look for Donnisha.
Addonis drove around the neighborhood and saw Donnisha getting out of
Addonis picked her up and took her home.
questioned her about where she had been. Donnisha eventually told them she
had been involved in a sexual relationship with Damm since September.
Donnisha‟s parents called the police and kept Donnisha out of school for
two weeks. They considered sending her to live with family in Cedar Falls, but
decided to keep her at home instead. On October 17, Donnisha snuck out of her
house and met Damm at his dealership. When Addonis found her, she was not
wearing any undergarments. The police were called again. Donnisha told an
officer she had a crush on Damm and was upset she could not see him anymore.
She later said she was scared Damm might hurt her.
On October 23, Donnisha‟s mother called First Student, Inc., the bus
company that provided school bus services for Donnisha‟s school. She asked to
have Donnisha‟s bus route changed to one closer to home.
Her old route
dropped her off near Damm‟s dealership, at the intersection of Linden and
Glenwood. Leneaka was told to contact the school. She did that day and left a
message for Cora Turner, the school district‟s executive director of students.
The message stated, “Daughter was sexually abused by a neighbor and wants
location closer to home so Mom can see her.”
Turner called the police and verified that Damm was being investigated for
sexually assaulting Donnisha. She accordingly approved Leneaka‟s request and
called First Student to tell them to change Donnisha‟s school bus route. She
spoke to both a dispatcher and a bus driver. First Student changed Donnisha‟s
bus to one that would drop her off near her house where Leneaka could see
her—at the intersection of Willow and Lewis.
Leneaka sent Donnisha back to school on October 27. That afternoon,
after school let out for the day, Leneaka watched for Donnisha from the window
of her house.
When Donnisha did not arrive, Leneaka called the driver of
Donnisha‟s new school bus, Bessie Johnson, and asked if Donnisha was on the
bus. Johnson said she was not. Johnson then called Rosemarie Stuart, the
driver of Donnisha‟s old bus, looking for her. Stuart called out Donnisha‟s name,
and students on the bus replied she was there. The conversation, as recorded
by a video camera on the bus, continued:
JOHNSON: Okay. She‟s supposed to be on [bus] 35. So
you gonna drop her off; right?
STUART: Okay. Where am I supposed to drop her off?
JOHNSON: Willow and Lewis.
DONNISHA: No, no; right here. I can walk back. I live like
right down there. I can walk back.
STUART: On Willow and Lewis.
DONNISHA: Yeah, right down there.
STUART: She says she can walk back. I‟m over here at
Linden and Glenwood.
JOHNSON: No, she‟s supposed to be dropped off on Willow
STUART: No, I gotta take you over there.
DONNISHA: No. . . .
STUART: Okay, ten four. I gotta take you over there.
DONNISHA: No, let me off right here. I live right here.
STUDENT BEHIND HER: Can you let us off?
STUART: . . . [s]he‟s insisting that she get off. So what am I
supposed to do?
STUDENT BEHIND HER: Let me off.
STUART: Yeah. She‟s insisting that she gets off at the stop
where I‟m at and she says she‟ll walk back. So what am I
supposed to do?
JOHNSON: Willow and Lewis.
STUDENTS: She‟s going to get off when we get off of the—
she‟s going to get off.
STUART: 34 to base. I‟ve got another child that is
supposed to be on 35 and she does not want to listen to get off at
that stop. She says she‟s going to get off as soon as I open the
DISPATCHER: Well, then I guess if she‟s going to do that,
then she‟s going to have a referral wrote and I will call Logan and
she‟ll be suspended.
JOHNSON: That man‟s gonna kill her.
Donnisha got off the school bus at the stop near Damm‟s dealership.
Damm picked her up and took her to meet his friend, Bruce Burt. Donnisha
thought Burt was going to take her to Chicago where Damm would meet her
later. Instead, Damm had hired Burt to kill Donnisha. Her body was found in
Galena, Illinois, several days later. Damm and Burt were subsequently convicted
of Donnisha‟s murder.
Donnisha‟s parents, Leneaka and Addonis, brought suit against First
Student, as well as Damm and Burt. The plaintiffs alleged First Student was
negligent in allowing Donnisha to get off at the wrong bus stop, which resulted in
her contact with Damm and eventual death. The case proceeded to a jury trial.
At the close of the plaintiffs‟ case, First Student moved for a directed verdict. It
argued the plaintiffs did not present evidence showing Donnisha‟s murder was
among the risks that made the bus company‟s conduct tortious. The district court
First Student‟s duty was to take precautions only against
further sexual abuse of Donnisha Hill by David Damm. . . .
Donnisha Hill‟s murder by Bruce Burt was not the type of danger
that naturally arose from her sexual abuse or that arises from
sexual abuse of a person who is 12 or 13 years of age generally.
. . . [T]he court disagrees with Plaintiffs‟ position that First
Student‟s duty was to take precautions against any and all possible
harm to Donnisha Hill that could have happened through contact
with David Damm.
The plaintiffs appeal.1
After the district court granted First Student‟s motion for directed verdict, the
plaintiffs informed the court that under Iowa Rule of Civil Procedure 1.211,
the court may not enter a judgment against either David Damm or Bruce
Burt in this matter because both of them are confined in a penitentiary.
So it is fruitless for us to proceed with this case in any respect because of
the cases I‟ve cited in this rule, so we would plead with the court to
reverse its ruling based upon what we have just presented to the court.
In its written ruling granting the directed verdict, the court stated, “On Plaintiffs‟ oral
motion, made after the court announced its ruling on First Student, Inc.‟s motion for
directed verdict, Plaintiffs‟ petition is dismissed as to David A. Damm and Bruce Edward
Burt.” The plaintiffs now complain of this dismissal on appeal. Because we are
reversing the district court‟s dismissal of the case against First Student, we reverse its
II. Scope and Standards of Review.
We review a trial court‟s grant of a motion for directed verdict for
correction of errors at law.
Royal Indem. Co. v. Factory Mut. Ins. Co., 786
N.W.2d 839, 849 (Iowa 2010).
In reviewing the grant of a motion for directed verdict, the court
must determine whether reasonable minds could differ on the issue
presented; if so, the grant was inappropriate. We view the facts in
a light most favorable to the nonmoving party.
Id. (citations omitted).
District courts are encouraged to deny motions for
directed verdict, even if it seems clear the movant is entitled to judgment as a
matter of law. See State v. Keding, 553 N.W.2d 305, 308 (Iowa 1996); Reed v.
Chrysler Corp., 494 N.W.2d 224, 229 (Iowa 1992), overruled on other grounds by
Jahn v. Hyundai Motor Co., 773 N.W.2d 550 (Iowa 2009). It is considered more
prudent for the court to submit even a weak case to the jury to avoid another trial
in case of error. Keding, 553 N.W.2d at 308. The jury should be given the
opportunity to “„consider the evidence, return a verdict, and potentially reach the
same conclusion the court tentatively had reached.‟” Reed, 494 N.W.2d at 229
“[M]uch is wasted by granting directed verdicts in routine
cases, or in cases that are at all close.” Id.; see also Royal Indem., 786 N.W.2d
at 845 (“Even the weakest cases may gain strength during the defendant‟s
presentation of the case.”). Unfortunately the district court did not submit the
case to the jury here.
dismissal of Damm and Burt as well. However, we note rule 1.211 provides that “no
judgment may be entered in a civil case against an incarcerated person without the
appointment of a guardian ad litem.” Garcia v. Wibholm, 461 N.W.2d 166, 170 (Iowa
In Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009), our supreme
court adopted the principles of the Restatement (Third) of Torts: Liability for
The drafters of the third Restatement changed some of the
terms and tests used in the second Restatement but largely retained the
concepts embodied in that work. See Royal Indem., 786 N.W.2d at 849. Like
before, but in a somewhat different formulation, a plaintiff must show the
following in order to prove a defendant was negligent: (1) the existence of a
duty; (2) failure to exercise reasonable care; (3) factual cause; (4) physical harm;
and (5) harm within the scope of liability (previously called “proximate cause”).
See Restatement (Third) of Torts: Liab. Physical Harm § 6 cmt. b, at 67-68
(2010) [hereinafter Restatement (Third)]; cf. Thompson, 774 N.W.2d at 834 (“An
actionable claim of negligence requires „the existence of a duty to conform to a
standard of conduct to protect others, a failure to conform to that standard,
proximate cause, and damages.‟” (citations omitted)).
The first element is a question of law for the court to determine.
Restatement (Third) § 6 cmt. b, at 67. The next four are factual questions to be
determined by the fact finder. Id. at 68. We are primarily concerned with the
final element in this case—scope of liability. But we begin by considering the
third Restatement‟s definition of negligence because that concept often
converges with scope of liability. Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist.,
788 N.W.2d 386, 392 (Iowa 2010) (citing Restatement (Third) § 19 cmt. c, at 21617).
The third Restatement states a person
acts negligently if the person does not exercise reasonable care
under all the circumstances. Primary factors to consider in
ascertaining whether the person‟s conduct lacks reasonable care
are the foreseeable likelihood that the person‟s conduct will result in
harm, the foreseeable severity of any harm that may ensue, and
the burden of precautions to eliminate or reduce the risk of harm.
Restatement (Third) § 3, at 29. One prominent type of negligence is dealt with in
section 19, which states the “conduct of a defendant can lack reasonable care
insofar as it foreseeably combines with or permits the improper conduct of the
plaintiff or a third party.” Id. § 19, at 215.
Comment c to section 19 explains that in
many situations, the defendant‟s conduct foreseeably brings about
the misconduct of a third party, which results in an injury to the
plaintiff. While the foreseeability of this misconduct raises an issue
of the defendant‟s negligence, it also raises an issue of whether the
plaintiff‟s harm is within the defendant‟s scope of liability. See
Chapter 6. However, the issues of defendant negligence and
scope of liability often tend to converge. If the third party‟s
misconduct is among the risks making the defendant‟s conduct
negligent, then ordinarily plaintiff‟s harm will be within the
defendant‟s scope of liability.
Id. § 19 cmt. c, at 216. “This section imposes liability where the actions of the
defendant „increase the likelihood that the plaintiff will be injured on account of
the misconduct of a third party.‟”
Brokaw, 788 N.W.2d at 391 (quoting
Restatement (Third) § 19 cmt. e, at 218). The converse is that an “actor is not
liable for harm when the tortious aspect of the actor‟s conduct was of a type that
does not generally increase the risk of that harm.” Restatement (Third) § 30, at
The following are examples of situations where the defendant has created
or increased the likelihood of injury by a third person:
For example, the defendant‟s conduct may make available to the
third party the instrument eventually used by the third party in
inflicting harm; or that conduct may bring the plaintiff to a location
where the plaintiff is exposed to third-party misconduct; or that
conduct may bring the third party to a location that enables the third
party to inflict harm on the plaintiff; or the defendant‟s business
operations may create a physical environment where instances of
misconduct are likely to take place; or the defendant‟s conduct may
inadvertently give the third party a motive to act improperly.
Id. § 19 cmt. e, at 218.
Relying on the second and third examples listed above, the plaintiffs claim
First Student acted negligently in allowing Donnisha to get off at the wrong
school bus stop, which was near Damm‟s dealership, instead of at the stop by
her home where her mother could have watched her alight from the bus. First
Student responds, and the district court agreed, that Donnisha‟s murder was
outside the scope of risk of its conduct because Donnisha was murdered, not
sexually abused. This argument brings us to the scope-of-liability element, as
explained in section 29 of the third Restatement.
That provision states, “An actor‟s liability is limited to those harms that
result from the risks that made the actor‟s conduct tortious.” Id. § 29, at 493.
“This principle, referred to as the „risk standard,‟ is intended to prevent the
unjustified imposition of liability by „confining liability‟s scope to the reasons for
holding the actor liable in the first place.‟”
Thompson, 774 N.W.2d at 838
(quoting Restatement (Third) § 29 cmt. d, at 579-80 (Proposed Final Draft No. 1,
2005)). The term “scope of liability” is used to distinguish between “those harms
that fall within this standard and, thus, for which the defendant is subject to
liability and, on the other hand, those harms for which the defendant is not liable.”
Restatement (Third) § 29 cmt. d, at 496.
To apply this rule requires consideration, “at an appropriate level of
generality,” of the risks that made the actor‟s conduct tortious and whether the
harm for which recovery is sought was a result of any of those risks. Id. Risk
consists of “harm occurring with some probability.” Id.
The magnitude of the risk is the severity of the harm discounted by
the probability that it will occur. For purposes of negligence, which
requires foreseeability, risk is evaluated by reference to the
foreseeable (if indefinite) probability of harm of a foreseeable
Id.; see also id. cmt. j, at 505 (discussing connection between the risk standard
and foreseeability test used in proximate cause determinations).
defendants, as here,
move for a determination that the plaintiff‟s harm is beyond the
scope of liability as a matter of law, courts must initially consider all
of the range of harms risked by the defendant‟s conduct that the
jury could find as the basis for determining that conduct tortious.
Then, the court can compare the plaintiff‟s harm with the range of
harms risked by the defendant to determine whether a reasonable
jury might find the former among the latter.
Id. cmt. d, at 496 (emphasis added).
The question we must decide is: At what level of generality should the
type of harm in this case be described?
The plaintiffs argue, “If the risk is
understood to be physical harm to Donnisha . . . then it is clear that everyone,
including the bus company, was aware of the danger of physical harm to
Donnisha.” First Student counters that
the identifiable risk at the time of the allegedly tortious conduct on
the part of First Student was that David Damm would make contact
with and sexually abuse Donnisha, not that he would hire a third
party to kidnap Donnisha, take her across state lines, and have her
We think this is a question that should have been submitted to and decided by
Comment i to section 29 provides:
The risk standard is defined with respect to risks of harm, while the
“type of harm” can be described at varying levels of generality. . . .
No rule can be provided about the appropriate level of
generality or specificity to employ in characterizing the type of harm
for purposes of this Section. . . .
In addition to the difficulty of determining the appropriate
level of generality with which to describe the type of harm, courts
also confront the problem that the risks that are encompassed
within the actor‟s tortious conduct may not be readily apparent. . . .
[T]he negligence standard is quite general in the risks that it
Thus, greater uncertainty and difficulty occur in
negligence cases in determining whether the harm that resulted
arose from the risks that made the actor‟s conduct unreasonable.
Many cases will pose straightforward or manageable
determinations of whether the type of harm that occurred was one
of those risked by the tortious conduct. Yet in others, there will be
contending plausible characterizations that lead to different
outcomes and require the drawing of an evaluative and somewhat
arbitrary line. Those cases are left to the community judgment and
common sense provided by the jury.
Id. § 29 cmt. i, at 504-05 (emphasis added).
This comment reflects the “fact-intensive nature of the scope-of-liability
issue.” Id. cmt. d, at 499; see also Thompson, 774 N.W.2d at 838.
In each case, the inquiry requires assessment, based on the
particular circumstances of the case, of the legally cognizable risks
that existed and that made the actor‟s acts or omissions with regard
to those risks tortious. In a negligence action, prior incidents or
other facts evidencing risks may make certain risks foreseeable
that otherwise were not, thereby changing the scope-of-liability
Restatement (Third) § 29 cmt. d, at 499 (emphasis added); see also Thompson,
774 N.W.2d at 836 (“Causation is a question for the jury, „save in very
exceptional cases where the facts are so clear and undisputed, and the relation
of cause and effect so apparent to every candid mind, that but one conclusion
may be fairly drawn therefrom.‟” (citation omitted) (emphasis in original)).
In finding the harm suffered by Donnisha was outside First Student‟s
scope of risk, the district court relied on the following illustration from section 29
of the third Restatement:
Richard, a hunter, finishes his day in the field and stops at a friend‟s
house while walking home. His friend‟s nine-year-old daughter,
Kim, greets Richard, who hands his loaded shotgun to her as he
enters the house. Kim drops the shotgun, which lands on her toe,
breaking it. Although Richard is negligent for giving Kim his
shotgun, the risk that makes Richard negligent is that Kim might
shoot someone with the gun, not that she would drop it and hurt
herself (the gun was neither especially heavy nor unwieldy). Kim‟s
broken toe is outside the scope of Richard‟s liability, even though
Richard‟s tortious conduct was a factual cause of Kim‟s harm.
Id. cmt. d, illus. 3, at 496-97. But in relying on this illustration, the court failed to
consider facts particular to this case evidencing risks making certain risks
foreseeable that otherwise were not. Id. cmt. d, at 499.
The plaintiffs presented evidence that First Student was aware Donnisha‟s
bus route was changed for her overall safety in general, not just to prevent
further sexual abuse.
See Brokaw, 788 N.W.2d at 392-393 (“The risk is
sufficiently foreseeable to provide a basis for liability when „the actor [has]
sufficient knowledge of the immediate circumstances or the general character of
the third party to foresee that party‟s misconduct.‟” (quoting Restatement (Third)
§ 19 cmt. f, at 220)).
Donnisha‟s mother testified,
I changed the bus route specifically to be able to see my daughter
get on and off of her school bus safely so I didn‟t have to worry
about her being out of eyesight from the bus to [home] in the
morning and the afternoon.
I wanted to make sure that, you know, she did not have any
contact with David Damm and just, you know, just wanted to be
able to see her from point A to point B as much as I could.
The school district‟s message from Leneaka regarding the bus route change
reflected the same concern: “Daughter was sexually abused by a neighbor and
wants location closer to home so Mom can see her.”
A dispatcher for First Student testified,
Donnisha‟s mom and I spoke—I don‟t know exactly how long but it
was at some length—and she . . . told me that there were problems
going on and wanted the stop changed and we needed to do
The dispatcher continued, testifying that she knew
there was a serious situation going on and that she needed to be
let off the bus somewhere other than her normal stop because
there was something serious going on. We didn‟t—did not get into
detail. I just knew from the conversation from Mom and from Cora
Turner that something needed to change because there was some
type of danger.
She recalled being informed that if Donnisha did get on the wrong bus, the police
were to be called immediately.
The driver of Donnisha‟s new school bus route knew more specifics than
the dispatcher because of a personal relationship with the family. She, in fact,
foresaw Donnisha‟s murder as a possibility after Donnisha got off the bus stop
near Damm‟s dealership, stating, “That man‟s gonna kill her.” While the district
court discounted that statement as simply a premonition, in reviewing a motion
for directed verdict we must “view the facts in a light most favorable to the
Royal Indem., 786 N.W.2d at 849.
We also consider
evidence that Donnisha expressed fear of Damm before her murder, telling a
detective that “if she did not do what he said she would be scared of what he
might do to her. . . . She thought he might hurt her.”
Based on these facts, we believe reasonable minds could differ as to
whether the type of harm suffered by Donnisha was among the harms whose
risks made First Student‟s conduct tortious. See Restatement (Third) § 29 cmt.
q, at 511 (stating it is the function of the jury in such cases “to determine whether
the harm is within the defendant‟s scope of liability”). The foregoing facts also
distinguish this case from the gun illustration in comment d to section 29 because
the risk that made First Student negligent was the general risk that Donnisha
would come in contact with and be physically harmed by Damm.2 We do not
read the Restatement as requiring the splitting of hairs employed by the trial
court here. However, these Restatement provisions seem as clear as mud to us
and other courts. See, e.g., United States v. Monzel, 746 F.Supp.2d 76, 86 n.16
(D.D.C. 2010) (“Despite the well-established reputation of the ALI, the Court has
strong concerns about whether the second prong of its causation analysis, which
addresses the scope of liability, is going to be any easier or clearer for judges,
who must write appropriate instructions on causation, or for jurors, who must
We must also consider the district court‟s determinations that the
bus company‟s negligence, if any, was not a proximate cause of
Donnisha Hill‟s death because it would not have been a substantial
factor in bringing about her death.
Here, Damm‟s actions facilitated Donnisha‟s murder. If Burt had murdered
Donnisha independent of Damm, dropping Donnisha off at the wrong location would
likely not be in First Student‟s scope of liability. Similarly, had Donnisha been attacked
by some unforeseen angry dog, dropping Donnisha off at the wrong location would likely
not be in First Student‟s scope of liability.
Finally . . . First Student‟s negligence, if any, was not a
proximate cause of Donnisha Hill‟s death because, after she safely
alighted from the bus, the decision she made to go west and south
to Eastside Motors to meet David Damm, instead of north and east
to her mother‟s home, was her own independent decision and
cannot be attributed to any negligence on the part of First Student,
Inc. See Burton v. Des Moines Metropolitan Transit Auth., 530
N.W.2d 696, 702-03 (Iowa 1995).
Although characterized as proximate-cause determinations, we believe the court
was referring to the factual-causation component of the plaintiffs‟ negligence
Section 26 of the third Restatement provides, “Tortious conduct must be a
factual cause of harm for liability to be imposed. Conduct is a factual cause of
harm when the harm would not have occurred absent the conduct.” Restatement
(Third) § 26, at 346. The comments elaborate that an “actor‟s tortious conduct
need only be a factual cause of the other‟s harm.” Id. cmt. c, at 347.
The existence of other causes of the harm does not affect whether
specified tortious conduct was a necessary condition for the harm
to occur. Those other causes may be innocent or tortious, known
or unknown, influenced by the tortious conduct or independent of it,
but so long as the harm would not have occurred absent the
tortious conduct, the tortious conduct is a factual cause.
Id. The “substantial factor” test as the routine test for factual cause is no longer
used by the new Restatement. See id. cmt. j, at 353 (stating the substantialfactor test has not “withstood the test of time, as it has proved confusing and
been misused”); see also id. § 29 cmt. a, at 493 (“Because the rules in this
Chapter address the grounds for limiting liability with greater precision than the
substantial-factor standard, this Restatement does not use that term.”).
As to the second part of the court‟s ruling quoted above, we do not agree
that Donnisha‟s decision to go to Damm‟s dealership unquestionably absolves
First Student of liability. The plaintiffs presented evidence that First Student‟s
decision to let Donnisha exit the school bus at a stop away from her home where
her mother was watching for her brought her to a location where she was
exposed to harm from Damm.
See id. § 19 cmt. e, at 218.
The fact that
Donnisha acted to her own detriment in meeting Damm does not negate First
Student‟s potential negligence. See id. cmt. b, at 216 (“In many situations, the
foreseeable risk that renders the defendant‟s conduct negligent is the risk that
potential victims will act in ways that unreasonably imperil their own safety.”).
Donnisha‟s mother testified that had Donnisha been dropped off at her new bus
stop near her home, she could have seen her exit the school bus. Donnisha
would have therefore been unable to meet with Damm as she was able to when
dropped off near his dealership. See id. § 26 cmt. e, at 349 (“The requirement
that the actor‟s tortious conduct be necessary for the harm to occur requires a
counterfactual inquiry. One must ask what would have occurred if the actor had
not engaged in the tortious conduct.”).
Finally, we believe this case is distinguishable from the case relied on by
the district court, which involved a commercial carrier as opposed to a school bus
driver. See Burton, 530 N.W.2d at 697. “The general law among American
jurisdictions holds that a carrier has an affirmative duty to discharge a passenger
in a reasonably safe place.” Id. at 699. Once the passenger safely alights, the
relationship ends and the carrier‟s duty to the passenger resulting from the
relationship ceases. Id. Courts have accordingly been reluctant to hold common
carriers liable for injuries to passengers caused after the passenger exits the
vehicle. Id. The reasons for this rule are that “after alighting, the passenger‟s
individual choice directs where he or she will walk,” and “the passenger is in a
better position to guard against the dangers of moving vehicles.” Id.
By contrast, the “law has established some specific duties owed by a
school bus driver to pupil/passengers.” Id. at 700. When such a relationship
exists, “the driver must use the care that „an ordinarily prudent bus operator
would exercise in looking after the safety of a child in his charge of the age of the
pupil involved.‟” Id. (citation omitted); see also Johnson v. Svoboda, 260 N.W.2d
530, 534 (Iowa 1977) (“[T]he relationship continues not only during the ride and
until the pupil has alighted at the point of disembarkation but also, if the pupil
must cross the road to the opposite side, until he has done so.”). A full reading of
Burton thus shows school bus drivers‟ duty to their passengers is greater than
that owed by normal commercial carriers. See Burton, 530 N.W.2d at 700 (“The
duties of a school bus driver are defined by the duties imposed by the law on
school districts, not the duties imposed on common carriers. The law charges
school districts with the care and control of children and requires the school
district to exercise the same standard of care toward the children that a parent of
ordinary prudence would observe in comparable circumstances.” (citation
In the end, we believe this case should have been submitted to the jury
because reasonable minds could differ on the issues presented when viewing the
facts in a light most favorable to the nonmoving party. See Royal Indem., 786
N.W.2d at 849.
We accordingly reverse the district court‟s grant of First
Student‟s motion for directed verdict as to First District, as well as to Damm and
Burt, and remand the case for a new trial.
REVERSED AND REMANDED.