Transit Bus Stops: Ownership, Liability, and Access (2008)

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3 TRANSIT BUS STOPS: OWNERSHIP, LIABILITY, AND ACCESS By Jocelyn K. Waite, Attorney Waite & Associates, Reno, Nevada I. INTRODUCTION A. Statement of the Problem Bus stops and bus shelters can create a myriad of le- gal issues1 associated with their ownership, mainte- nance, and accessibility. Accessibility issues arise both for persons with disabilities under the Americans with Disabilities Act of 1990 (ADA)2 and elderly persons whether or not they come under the ADA. Bus stop lo- cation and modifications may also have environmental law implications, particularly in the context of bus rapid transit. In addition, First Amendment issues may arise concerning advertising. 1. Purpose Dealing with the various legal issues requires an un- derstanding of the tort law of the transit agency’s juris- diction, both in terms of general tort liability and liabil- ity specific to bus stops and bus shelters; relevant state and local legislation/regulations; federal requirements; and potential federal and state constitutional issues. Numerous operational decisions may flow out of these legal issues, and these issues should be considered in drafting contracts with franchisees and contract opera- tors. This report is meant to provide transit agencies with a foundation for conducting more specific legal research to analyze legal liability in their own circum- stances. 2. Focus The report discusses the primary legal issues that are associated with ownership and/or responsibility for bus stops and bus shelters, including liability for personal injury and property damage; identifies common prob- lems regarding bus stops and bus shelters; and provides 1 The Transit Cooperative Research Program (TCRP) has already reported on operational considerations for locating and designing bus stops. TEXAS TRANSPORTATION INSTITUTE, TEXAS A&M RESEARCH FOUNDATION, TEXAS A&M UNIVERSITY, GUIDELINES FOR THE LOCATION AND DESIGN OF BUS STOPS (TCRP Report 19, Transit Cooperative Research Program, 1996) (hereinafter referred to as ” Texas Transportation Insti- tute”). The issue of placing and spacing bus stops is also ad- dressed in HOWARD P. BENN, BUS ROUTE EVALUATION STANDARDS (TCRP Synthesis 10, Transit Cooperative Research Program, 1995). Bus bulbs have also already been the subject of a TCRP Report: KAY FITZPATRICK, KEVIN M. HALL, STEPHEN FARNSWORTH, MELISA D. FINLEY, EVALUATION OF BUS BULBS (TCRP Report 65, Transit Cooperative Research Program, 2001). 2 42 U.S.C. §12101, et seq. information on possible ways of addressing such prob- lems, including major issues to cover in franchise agreements and service provider contracts. The report also discusses the type of government requirements generally associated with bus stops/bus shelters, includ- ing the importance of community input. Examples are provided throughout the report, not as best practices per se, but as potential models that can be modified as necessary for local conditions and to meet varying re- quirements in state and local law. 3. Scope Given that the focus of the report is on legal issues that relate to stand-alone bus stops and bus shelters, there are a number of topics related to bus stops that are beyond the scope of the report. These include bus terminals, the duty owed to persons parking near bus stops, and most actions of bus drivers, including the ADA issue of calling out bus stops.3 It is also beyond the scope of the report to consider measures, such as im- plementing intelligent transportation systems (ITS), which may have multiple benefits that include mitigat- ing disadvantages of certain bus stops.4 The report does discuss, however, the liability that may attach where a bus driver stops at other than the designated bus stop. In the case of bus terminals, the terminal operator has both governmental and proprietary functions, and li- ability may differ depending on which function the claimed injury concerns.5 Although bus stops/bus shel- ters may be an important element in increasing bus ridership,6 a discussion of this operational aspect is also 3 See 49 C.F.R. 37.167, Other service requirements; Martin et al. v. Metro. Atlanta Rapid Transit Agency, 225 F. Supp. 2d 1362 (N.D. Ga. 2002) for discussion of requirement of announc- ing stops. See NATIONAL COUNCIL ON DISABILITY, THE CURRENT STATE OF TRANSPORTATION FOR PEOPLE WITH DISABILITIES IN THE UNITED STATES, at 26–30, 161, 177 (June 13, 2005) for discussion of this issue, www.ncd.gov/newsroom/publications/2005/pdf/current_state.pd f. 4 For example, providing accurate bus arrival information may allow passengers to avoid lingering at bus stops that they perceive as unsafe. See ITS & Public Safety: How Technology and Collaboration Can Save Lives, 80 n.9 PUBLIC MANAGEMENT A1(15) (1998). 5 See LARRY W. THOMAS, STATE LIMITATIONS ON TORT LIABILITY OF PUBLIC TRANSIT OPERATIONS 9-10 (Legal Re- search Digest No. 3, Transit Cooperative Research Program, 1994); § I.C., General Tort Liability Issues, infra this report. 6 E.g., South Lake Union Transportation Study, http://www.ci.seattle.wa.us/transportation/slureport/AppA3SL

4 beyond the scope of this report. School bus transporta- tion is generally beyond the scope of the report,7 al- though the report does touch on transportation of school children by transit agencies. For the most part, issues presented by paratransit door-to-door service are be- yond the scope of the report.8 Finally, the report does not cover transit agency liability for incidents that are not particular to bus stops, such as a bus striking an- other vehicle or a pedestrian. B. Description of Bus Stops and Bus Shelters In this report the term “bus stop” refers to a place along a curb or side of the road where a bus comes to a halt briefly to allow passengers to board or alight. The term does not include areas where buses may stop for transit layover/staging, characterized by lengthy stops made for purposes other than allowing passengers to board or alight. For purposes of discussion in this re- port, unless otherwise specified the term “bus stop” will be used to include bus stops that have bus shelters. Bus stops may be marked or unmarked. Signs mark- ing bus stops signal to the driver where to stop the bus and the passengers where to wait.9 A driver-created bus stop is one other than a predesignated location indicat- ing where a bus will stop. Bus stops may or may not have seating.10 Once the decision is made to install benches, design and location issues must be decided.11 Bus stops with benches have maintenance issues not present for bus stops without this type of street furni- ture. In this report the term “bus shelter” refers to a struc- ture that affords persons waiting at a bus stop protec- tion from the weather. A bus shelter may include seat- ing, lighting, or other amenities. UWorkSession1Summary.pdf; Rockland County Land Use Planning,http://www.co.rockland.ny.us/planning/goals.htm. 7 See Tracy A. Bateman, Annotation, Tort Liability of Public Schools and Institutions of Higher Learning for Accidents Asso- ciated with Transportation of Students, 23 A.L.R. 5th 1 (2007). See also Hunt v. Clarendon Nat’l Ins. Serv., 691 N.W.2d 904 (Wis. App. 2004) (additional safety procedures to assist alight- ing students may have been required to meet duty of exercising very high degree of care for the safety of passengers); Bassett v. Lakeside Inn, 44 Cal. Rptr. 3d 827, 140 Cal. App. 4th 863 (Cal. App. Dist. 3 2006) (California Education Code § 44808 limits school district’s liability for injuries suffered off school prop- erty, and such immunity extends beyond liability imposed un- der the Education Code). 8 Transit agencies must provide paratransit from the origin to the destination, but have discretion in deciding whether to provide door-to-door or curb-to-curb service. Federal Transit Administration, Origin-to-Destination Service, DEPARTMENT OF TRANSPORTATION DISABILITY LAW GUIDANCE, www.fta.dot.gov/civilrights/ada/civil_rights_3891.html. 9 BC Transit, Transit Stop Installation Checklist 6, (herein- after referred to as “BC Transit”), www.bctransit.com/corporate/resources/pdf/res-urban-22.pdf. 10 See TEXAS TRANSPORTATION INSTITUTE, supra note 1, at 74. 11 See BC Transit, supra note 9, for sample standards for in- stallation and location. A major distinction between a “bus stop” and a “bus shelter” as used in this report is that legal and opera- tional issues may arise due to the structural character- istics of bus shelters. The term “bus shelter” is gener- ally used in the report where the particular characteristics of a bus shelter raise issues not present for bus stops without shelters. Bus shelters do offer advantages. Providing accessible covered shelters improves accessibility to transit.12 “People are more likely to ride a bus if they don’t have to wait in the rain.”13 Beyond providing such basic pro- tection, bus shelters may be considered assets in at- tracting ridership.14 Bus shelter franchisees claim in- creases in ridership after shelters are installed.15 C. General Tort Liability Issues “To prove negligence, a plaintiff must establish the existence of a duty, a breach of that duty, resulting in- jury, and proximate causation between the breach of the duty and the resulting injury.”16 This subsection discusses general principles of tort liability relevant to bus stops. The intent of this discussion is to provide transit agencies with a basis for conducting their own legal research, not to provide an exhaustive analysis of the general principles. To that end, examples are pro- vided of the law in selected jurisdictions. Specific appli- cations of these principles will vary by jurisdiction. In addition, the focus is on the liability of public entities. The liability of service providers such as maintenance companies—generally governed by standard negligence principles—is not discussed. 1. Sovereign Immunity A threshold question is whether the transit agency is subject to tort liability at all, as some jurisdictions re- 12 Bicycle and Pedestrian Facility Design Best Practices, at 9 (Oct. 2005), www.sactaqc.org/Resources/Agreements/UniversalDesign.pdf. 13 OREGON DEPARTMENT OF TRANSPORTATION, HIGHWAY DIVISION, OREGON BICYCLE AND PEDESTRIAN PLAN 100 (1995), § II, Facility Design Standards, www.oregon.gov/ODOT//HWY/BIKEPED/docs/bp_plan_2_ii.pdf . 14 TriMet, 3 Revitalizing Portland’s Downtown Mall (Jan. 2003), www.trimet.org/pdfs/portlandmall/Revitalizing_Portlands%20_ Downtown_Mall%20Jan03.pdf. See also Seattle Office of Eco- nomic Development, Metro Bus Shelters, www.seattle.gov/economicdevelopment/biz_district_guidIde/biz _dist_pages/METRO_bus_shelters.htm. 15 Cemusa North America claimed customer surveys showed a 10 percent increase in ridership after Cemusa installed bus shelters for VIA Metropolitan Transit in San Antonio, Texas. Local Bus Ridership Up Since VIA Built Shelters, SAN ANTONIO BUSINESS JOURNAL, Nov. 20, 2006, http://www.sanantonio.bizjournals.com/sanantonio/stories/2006 /11/20/daily9.html. 16 Kuehn v. Snohomish County Pub. Transp. Benefit Area Corp., 109 Wash. App. 1046, 2001 Wash. App. LEXIS 2730, n.4 (Wash. App. Div. 1 2001), citing Schooley v. Pinch's Deli Mar- ket, 134 Wash. 2d 468, 474, 951 P.2d 749 (1998).

5 tain sovereign immunity in general17 or have provided it to their transit agencies, at least under some circum- stances. For example, Dallas Area Rapid Transit is im- mune from suit unless immunity is waived, and such immunity is a bar to the court’s jurisdiction.18 Illinois has conferred immunity on the Chicago Metropolitan Transit Agency from liability “for failure to provide a security or police force or, if a security or police force is provided, for failure to provide adequate police protec- tion or security, failure to prevent the commission of crimes by fellow passengers or other third persons or for the failure to apprehend criminals.”19 The Washing- ton Metropolitan Area Transit Authority (WMATA) has immunity under the WMATA Compact and District of Columbia court decisions.20 While some states have retained sovereign immunity, it is more common for states to waive immunity via statute, although there are usually statutory exceptions to the waiver and limitations on the amounts that can be recovered. Whether common law immunity has been retained, waived via statute, or restated via statute, of course varies by jurisdiction. Each transit agency must ascertain its own legal status.21 In addition to being available to public transit agen- cies, the sovereign immunity defense may be available to a private corporation running a transit system on behalf of the state. Connecticut has articulated the fol- lowing criteria for allowing a private corporation to as- sert such a defense: …whether: (1) the state created the entity and expressed an intention in the enabling legislation that the entity be treated as a state agency; (2) the entity was created for a public purpose or to carry out a function integral to state government; (3) the entity is financially dependent on the state; (4) the entity's officers, directors or trustees are state functionaries; (5) the entity is operated by state em- ployees; (6) the state has the right to control the entity; (7) the entity's budget, expenditures and appropriations are closely monitored by the state; and (8) a judgment 17 For example, in California, all government tort liability must be based on statute. Rodriguez v. Inglewood Unified Sch. Dist., 186 Cal. App. 3d 707, 716, 230 Cal. Rptr. 823 (1986). And the intent of the California Tort Claims Act is “to confine po- tential governmental liability to rigidly delineated circum- stances.” Brown v. Poway Unified Sch. Dist. 4 Cal. 4th 820, 829, 843 P.2d 624 (1993). 18 Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). 19 Section 27 of the Metropolitan Transit Agency Act, 70 ILCS 3605/27, http://law.justia.com/illinois/codes/chapter15/982.html. See Hopkinson v. Chicago Transit Agency, 211 Ill. App. 3d 825, 570 N.E.2d 716 (Ill. 1st Dist. 1991). 20 See discussion at § I.C.2., Exceptions infra this report. 21 See THOMAS, supra note 5; STUART M. SPEISER, CHARLES F. KRAUSE, & ALFRED W. GANS, 5 THE AMERICAN LAW OF TORTS, at ch. 17, Tort Claims Acts; Liability of Public Sover- eignties or Bodies (1988). See §§ 17:23 and 17:24 for discussion of state tort claims acts in some 30 states. against the entity would have the same effect as a judg- ment against the state. (Footnotes omitted)22 In Gordon, supra, the private company that managed the transit system in question attempted to assert sov- ereign immunity against a claim that it should have obtained uninsured motorist coverage. The court held that the private company met five of the eight criteria, including operating a governmental function, and was entitled to assert sovereign immunity. Some state statutes provide that the purchase of li- ability insurance is deemed a waiver of sovereign im- munity.23 Since the effect of purchasing insurance will vary depending on the statute being interpreted, transit agencies should consult controlling state and local law on this issue. 2. Exceptions Where the transit agency may be subject to tort liabil- ity, exceptions generally apply. Perhaps the most im- portant exception is that for discretionary decisions. This exception is modeled on the Federal Tort Claims Act.24 A key analytical factor is the level of decision- making at which discretion is exercised.25 In general, driving a bus is considered ministerial, rather than dis- cretionary, and therefore not immune to suit.26 The Dis- trict of Columbia Circuit Court of Appeals has held that employees of WMATA “enjoy absolute immunity from state-law tort actions when the conduct at issue falls ‘within the scope of their official duties and the conduct is discretionary in nature.’”27 A less common distinction is that between govern- mental functions (immune) and proprietary functions (not immune).28 California, for example, long ago abro- gated the doctrine of governmental immunity,29 al- though the Muskopf rule was suspended legislatively and then partially reinstated, resulting in some limita- tions on governmental liability and some limitations on remedies.30 Where the exception is recognized, the con- trol and function of bus companies is generally consid- ered a governmental function.31 New York courts have held that absent a special relationship with an injured party, the New York City Transit agency cannot be held liable for an act or omission related to its governmental 22 Gordon v. H.N.S. Management Co., 861 A.2d 1160 (Conn. 2004). 23 18 McQuillin Mun. Corp. § 53.02.10, 53.02.30 (3d ed.). 24 28 U.S.C. §§ 2671 et seq. 25 THOMAS, supra note 5, at 5–6. 26 Id. at 6, citing Garza v. Salvatierra, 846 S.W.2d 17, 22 (Tex. App. San Antonio 1992). 27 Beebe v. WMATA, 129 F.3d 1283, 1289 (D.C. Cir. 1997). 28 NORMAN J. LANDAU & EDWARD C. MARTIN, 3 PREMISES LIABILITY LAW AND PRACTICE § 12.04[2][a] (2006). 29 Muskopf v. Corning Hospital Dist., 55 Cal. 2d 211, 216– 17, 359 P.2d 457, 460 (1961). See note 17, supra. 30 Heieck and Moran v. City of Modesto, 64 Cal. 2d 229, 231–32, 411 P.2d 105, 106–107 (1966). 31 8 McQuillin Mun. Corp. § 53.30, supra note 23.

6 authority.32 Some jurisdictions provide immunity under both discretionary and governmental theories: In addi- tion to case law providing WMATA with immunity for discretionary actions,33 the WMATA Compact provides immunity to WMATA for torts committed in the exer- cise of governmental functions.34 Application of the distinction between governmental and proprietary functions is not always clear. For ex- ample, failure to lock a subway gate has been held to be a governmental function,35 while allegations that transit employees had seen an assault on a passenger but not called police have been held to relate to proprietary functions.36 Notably, numerous New York courts have declined to hold that lapses in proper maintenance, in- cluding adequate lighting, involve proprietary func- tions. Several of these courts have held that lack of il- lumination at a subway exit involved security, a governmental function, and the transit agency was therefore not subject to liability absent a showing of a special relationship between the transit agency and the injured party.37 In addition, it is important to determine whether the jurisdiction in question has provided a statutory waiver of the immunity for exercises of governmental func- tions. For example, as noted supra, under Texas law transit service is a governmental function with immu- nity from suit, absent an express statutory waiver.38 However, there is such a waiver for personal injury and death caused by a condition or use of tangible personal or real property if the governmental unit would, were it 32 Weiner v Metro. Transp. Auth., 55 N.Y.2d 175, 433 N.E.2d 124 (N.Y. 1982); Clinger v. N.Y. City Tr. Auth., 85 N.Y.2d 957, 650 N.E.2d 855 (N.Y. 1995). 33 Beebe v. WMATA, 129 F.3d 1283, 1289 (D.C. Cir. 1997). 34 WMATA Compact § 80, Liability for Contracts and Torts: The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agents com- mitted in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on con- flict of laws), but shall not be liable for any torts occurring in the performance of a governmental function. The exclusive rem- edy for such breach of contracts and torts for which the Author- ity shall be liable, as herein provided, shall be by suit against the Authority. Nothing contained in this Title shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties and cities within the Zone of any immunity from suit. www.wmata.com/about/board_gm/compact.cfm#Contracts. 35 Calero v. N.Y. Transit Agency, 563 N.Y.S.2d 109, 110, 168 A.2d 659 (N.Y. App. 1990). 36 Crosland v. N.Y. City Transit Agency, 110 A.D. 2d 148, 149, 493 N.Y.S.2d 474, 476, 480 (N.Y. App. 1985). 37 Rivera v. N.Y. City Transit Agency, 585 N.Y.S.2d 367, 184 A.D. 2d 417 (N.Y. .App. 1st Dep’t 1992). 38 Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. App. 2002); Dallas Area Rapid Transit v. Thomas, 168 S.W.3d 322, 325 (Tex. App. 5th Dist. 2005), citing TEX. TRANSP. CODE ANN. § 452.052(c) (Vernon 1999). a private person, be liable to the claimant according to Texas law.39 Where the public entity may be liable for injury re- lated to its proprietary function, premises liability prin- ciples will be applied.40 In such cases, where there is an allegation of a premises defect, the duty owed may vary depending on whether it is owed to a licensee (lower standard of care) or invitee (higher standard of care).41 Where there is a government mandate, the transit agency cannot claim governmental immunity when it fails to follow the mandate.42 3. Public Duty Rule The public duty rule may also come into play in as- sessing municipal liability. Under that rule, subscribed to by the majority of jurisdictions,43 where the munici- pality has a duty to the general public, as opposed to a particular individual, breach of the duty does not result in individual tort liability.44 The duty to provide police protection is generally held to be a public duty.45 Ohio has applied the public duty rule to regional transit agencies, holding transit agencies not liable for assaults committed at transit agency stations.46 In Drexler v. Greater Cleveland Regional Transit Agency, the court 39 Id., citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (Vernon 2005). 40 See generally LANDAU ET AL, supra note 28. 41 See, e.g., Thomas, 168 S.W.3d at 325–26: The duty owed by a governmental entity to a licensee is not to injure the licensee by willful, wanton, or grossly negligent con- duct, and to use ordinary care either to warn the licensee of, or make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). If the claim- ant pays for the use of the premises, the limitation of duty under section 101.022 does not apply and the governmental entity owes the claimant the duty owed to an invitee. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a) (Vernon 2005). A govern- mental entity has the duty to warn an invitee of dangerous con- ditions of which the government has knowledge or which the government would have discovered in the exercise of ordinary care. City of San Antonio v. Hartman, 155 S.W.3d 460, 465 (Tex. App.-San Antonio 2004, pet. filed) (citing Payne, 838 S.W.2d at 237). That duty also requires the owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by the condition. Hartman, 155 S.W.3d at 465. 42 See THOMAS, supra note 5, at 12. 43 18 McQuillin, supra note 23, § 53.24. 44 Id. § 53.04.25. 45 Id. § 53.04.50. 46 Shelton v. Greater Cleveland Reg’l Transit Agency, 65 Ohio App. 3d 665, 584 N.E.2d 1323, 1331 (Ohio 8th Dist. 1989); Drexler v. Greater Cleveland Reg’l Transit Agency, 80 Ohio App. 3d 367, 609 N.E.2d 231, 233–234 (Ohio App. 8th Dist. 1992). The court also found that even though R.C. 2744.01(G)(2)(c) includes the establishment, maintenance, and operation of a transit company within the definition of a pro- prietary function, given that provision or nonprovision of police services is a governmental function immune from liability un- der R.C. 2744(C)(2)(a), the transit agency was also entitled to summary judgment under R.C. Chapter 2744. 609 N.E.2d 234- 35.

7 found that the complaint could only be characterized as failure to provide police protection, not a premises li- ability case against a common carrier.47 4. Procedural Limitations Even those states that allow tort actions against transit agencies may impose procedural limitations or cap the damages that are recoverable.48 Such damage caps have been generally,49 but not always,50 upheld. In any event, even where damages against transit agen- cies are allowed, punitive damages are often—but not always51—disallowed, either by statute52 or case law.53 In addition, some states may specify statutory reme- dies that must be pursued for recovery. For example, where a debarking passenger was injured by an ob- struction in the right-of-way, the Connecticut Supreme Court held that the condition that caused his injuries was, as a matter of law, a highway defect and that therefore the plaintiff’s exclusive remedy was under the state’s defective highway statute.54 D. Applied in Bus Stop Context Assuming that an agency can have tort liability as a general matter, it is important to consider whether any 47 Id. 48 THOMAS, supra note 5, at 9–11. 49 Lienhard v. State, 417 N.W.2d 119 (Minn. App. 1987; Lyles v. Commonwealth, Dep’t of Transp., 512 Pa. 322, 516 A.2d 701 (Pa. 1986) (holding that provision of Pennsylvania Sovereign Immunity Act limiting tort liability of Common- wealth party to $250,000 did not violate the equal protection provisions of the federal or Pennsylvania constitutions); Schu- man v. Chicago Transit Agency, 407 Ill. 313, 95 N.E.2d 447 (Ill. 1950) (rejecting a constitutional challenge to the notice of claim requirement and the reduced statute of limitations for personal injury suits against CTA). 50 Gladon v. Greater Cleveland Reg’l Transit Agency, 75 Ohio St. 3d 312, 662 N.E.2d 287 (Ohio 1996). 51 Magaw v. Mass. Bay Transp. Auth., 21 Mass. App. Ct. 129, 485 N.E.2d 695 (Mass. App. 1985) (stating that any limi- tation on the transportation authority's tort liability is for the legislature). 52 E.g., CAL. GOVT’ CODE § 818 (West 1980) (no exemplary damages); FLA. STAT. ANN. § 768.28 (5) (West 1986) (no puni- tive damages); TEX. GOV’T CODE ANN. § 101.024 (West 1986) (same); 42 PA. CONS. STAT. § 8521(c) (West 1982) (omitting punitive damages from categories of recoverable damages). 53 Thomas, supra note 5, at 11–12, citing Teart v. Washing- ton Metro. Area Transit Agency, 686 F. Supp. 12, 14 (D.D.C. 1988) (refusing to grant punitive damages in the absence of an express statutory grant); Metro. Atlanta Rapid Transit Agency v. Boswell, 261 Ga. 427, 405 S.E.2d 869 (Ga. 1991); George v. Chicago Transit Agency, 374 N.E.2d 679 (Ill. App. Ct. 1978). See also Boyles v. Greater Peoria Mass Transit Dist., 58 Ill. App. 3d. 692, 113 Ill. 2d 545, 101 Ill. Dec. 847, 499 N.E.2d 435 (1986) (former employee of mass transit district was precluded from recovering punitive damages under Local Governmental and Governmental Employees Tort Immunity Act). 54 Ferreira v. Pringle, 255 Conn. 360, 766 A.2d 400 (Conn. 2001). exceptions apply, and if not, whether the transit agency has breached a duty of care resulting in injury proxi- mately caused by the breach. Even if these elements are met, a claim may be derailed on procedural grounds.55 1. Exceptions Two common situations where exceptions to sover- eign immunity are likely to come into play are driver- created bus stops and design immunity. In the case of driver-created bus stops, the analysis is likely to draw the distinction between the type of deci- sion-making that is involved in changing bus routes or formally designating bus stops, and that involved in deciding where to stop at a particular intersection. When faced with this question, a Tennessee court held that the decision to change a school bus route was a planning decision within the discretionary function ex- ception, involving balancing factors, assessing priori- ties, and allocating resources, and was therefore the type of decision meant to be immune from liability. However, since there is reasonably specific guidance on stopping the bus, the bus driver’s decision about where to stop at a specific intersection was held to be an op- erational act not within the discretionary function ex- ception to governmental immunity.56 California has also held a bus driver’s decision as to exactly where to stop a bus to be an operational act not entitled to immunity.57 However, a Texas court held the act of discharging stu- dents from a school bus to be discretionary, finding the state guide on guiding students across the street to con- stitute a recommendation, not a mandate.58 Design immunity is intended to prevent a jury from second-guessing a public entity’s decision regarding the plan or design of a public construction project or other public improvement.59 The statutory basis for such im- munity may vary, as may the defenses against it. In California, for example, in order to raise a design im- munity defense, the public entity must show “(1) a causal relationship between the plan or design and the accident, (2) discretionary approval of the plan or de- sign prior to construction and (3) the existence of sub- stantial evidence supporting the reasonableness of the adoption of the plan or design.”60 The immunity may be lost where a public entity had actual or constructive 55 See discussion under § I.D.2., Procedural Issues, infra this report. 56 Bowers v. City of Chattanooga, 826 S.W.2d 427, 429 (Tenn. 1992). 57 Bonanno v. Central Contra Costa Transit Agency, 30 Cal. 4th 139, 65 P.3d 807 (Cal. 2003). See discussion of Bonanno in §§ II.A.2, Duty to Whom, II.B.1, Description/Extent of Duty, II.B.2, Duty Owed By, and II.C.1, Description/Extent of Duty, infra this report. 58 Cortez v. Weatherford Indep. Sch. Dist., 925 S.W.2d 144 (Tex. App. 2d Dist. 1996). 59 Baldwin v. State of Cal., 6 Cal. 3d 424, 432, 491 P.2d 1121, 1126, 1127–1128 n.7, 434 (1972). 60 Higgins v. State of Cal., 54 Cal. App .4th 177, 185, 62 Cal. Rptr. 2d 459, 464 (1997).