P.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL P., a minor, by and

through his mother, ELIZABETH

A., and ELIZABETH A., CIVIL ACTION NO. 3:21-cv-00902

individually,

(SAPORITO, J.)

Plaintiffs,

v.

EAST STROUDSBURG AREA

SCHOOL DISTRICT,

Defendant.

MEMORANDUM

On June 5, 2019, Michael P., a minor with disabilities, was severely

injured when he allegedly “threw himself down the bus steps and landed

face-first on the pavement” causing himself significant brain injuries.

(Doc. 1, ¶ 3). On May 18, 2021, the plaintiffs, Michael P. and his parent

and natural guardian Elizabeth A., filed this action against the East

Stroudsburg Area School District (the “District”) asserting claims under

§ 504 of the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794, and the

Americans with Disabilities Action (“ADA”), 42 U.S.C. §§ 12131 .,

state-law negligence and recklessness claims, and a state-law breach of

fiduciary duty claim.1 ( ). The plaintiffs allege that the District’s bus

driver and Michael P.’s aide, a District employee, knew or should have

known of Michael P.’s disabilities and transportation safety needs

including dangerous issues with elopement, on the date of Michael’s

injuries. ( , ¶¶ 19―22). Now before the Court are both parties’ cross

motions for summary judgment. (Doc. 50; Doc. 51). The motions have

been fully briefed (Doc. 52; Docs. 56–61) and are ripe for review.

I. Background2

On September 27, 2017, Michael P. was enrolled in the East

Stroudsburg Area School District. Michael is diagnosed with Down

syndrome and holds an IQ of 52, placing him below the first percentile as

compared to other children at his age. Due to Michael’s disabilities, the

District educated him in a full-time life skills classroom for very low-

1 On September 20, 2022, the Court dismissed the plaintiffs’

recklessness subclaim within Count III and the plaintiffs’ breach of

fiduciary duty claim set out in Count IV. (Doc. 24). The plaintiffs’

remaining claims are as follows: (1) claims based upon Section 504 of the

Rehabilitation Act (Count I); (2) claims under the Americans with

Disabilities Act (Count II); and (3) state-law negligence claims (Count

III).

2 The facts included within this section are all undisputed and

taken from the parties’ statements of material facts. (Doc. 56-2; Doc.

57).

functioning students. Michael’s disabilities also required transportation

accommodations to and from school.

At the time of the events leading up to Michael P.’s injury on June

5, 2019, Michael P. was receiving specialized door-to-door transportation

service on a small vehicle with a booster seat that secured him during

transit. Michael P.’s individualized education program3, written in

January of 2019, noted the following: “Due to Michael’s limited ability to

understand and express language, sensory issues with noise and his lack

of safety awareness (including issues of elopement that could be

dangerous) the team feels it would benefit him to have specialized

transportation as stated within the related services of this document.”

Indeed, Michael P.’s parents had previously informed the District that

they “expressed concerns regarding the regular bus stop with regard to

Michael’s tendency to run (elope) and run into the road.” Moreover,

Michael P.’s bus driver had noted that Michael P. would sometimes jump

3 “An IEP consists of a specific statement of a student’s present

abilities, goals for improvement of the student’s abilities, services

designed to meet those goals, and a timetable for reaching the goals by

way of the services.” , 602 F.3d 553, 557 (3d

Cir. 2010) (quoting , 205 F.3d 583, 589

(3d Cir. 2000)) (citations omitted).

out of the bus into his father’s arms when arriving home at the end of the

day.

On June 5, 2019, the date of the injury, Michael P. arrived at the

District on his assigned bus.4 At some point, Michael P.’s bus driver

parked the vehicle on the curb of the school and began to fill out a form.

After completing the form, the bus driver walked over to Michael P. and

removed Michael P. from his booster seat harness. He then walked

Michael P. to the bus stairs. The parties disagree on what happens next.

The plaintiffs allege that Michael P. leaped from the top stairs of

the bus and landed face down on the pavement. (Doc. 57, ¶ 23)

(“Michael was entirely unattended as he leaped out of the bus and landed

face first on the pavement.); ( , ¶ 27) (“… and [Michael] jumped out of

the bus, injuring himself.”); ( , ¶ 41) (“… [Michael] jumped from the top

step with no one to help him and he landed face down on the

pavement….”). The District contends that Michael P. accidentally fell

after losing his balance. (Doc. 56-2, ¶ 92) (“There were no warning signs

4 The description of the events surrounding Michael’s injury are

based on two videos provided by both parties. (Doc. 51-8). The parties,

unsurprisingly, have two different interpretations of the events based on

those videos, and thus, we have included a neutral version of the events

within this section.

before Student fell….”); ( , ¶ 93) (“[I]t appears that Student either

stopped short or lost his balance causing him to fall.”). In either event,

Michael landed on the pavement and suffered significant brain injuries

due to his fall. These injuries include, according to the plaintiffs, “a

Traumatic Brain Injury (“TBI”), brain hemorrhage, orbital fracture,

frontal bone (forehead) fracture, long-term behavior changes, long-term

post-concussion syndrome, and other injuries and long-term

consequences.” (Doc. 1, ¶ 3).

As noted above, the plaintiffs allege that the District knew or

should have known of Michael P.’s disabilities and transportation safety

needs. They seek compensatory damages and reasonable attorneys’ fees

and costs under Section 504 of the Rehabilitation Act of 1973, the

Americans with Disabilities Act, and a state-law claim for negligence.

II. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure dictates summary

judgment should only be granted if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the outcome

of the case. , 477 U.S. 242, 248 (1986). A

dispute of material fact is “genuine” only if the evidence “is such that a

reasonable jury could return a verdict for the non-moving party.” at

248. In deciding a summary judgment motion, all inferences “should be

drawn in the light most favorable to the non-moving party, and where the

non-moving party’s evidence contradicts the movant’s, then the non-

movant’s must be taken as true.” , 24 F.3d

508, 512 (3d Cir. 1994).

Parties seeking summary judgment bear “the initial responsibility

of informing the district court of the basis for its motion,” and

demonstrating the absence of a genuine dispute of material fact.

, 477 U.S. 317, 323 (1986). If the movant makes such a

showing, the non-movant must set forth specific facts, supported by the

record, demonstrating that “the evidence presents a sufficient

disagreement to require submission to the jury.” , 477 U.S. at

251–52. A court must first determine if the moving party has made

showing that it is entitled to summary judgment when evaluating

such a motion. Fed. R. Civ. P. 56(a); , 477 U.S. at 331. Only

once that showing has been made does the burden shift to the

nonmoving party to demonstrate the existence of a genuine dispute of

material fact. Fed. R. Civ. P. 56(a); , 477 U.S. at 331.

Parties may cite to “particular parts of materials in the record,

including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for the

purposes of the motion only), admissions, interrogatory answers or other

materials.” Fed. R. Civ. P. 56(c)(1)(A). “An affidavit or declaration used to

support or oppose a motion must be made on personal knowledge, set out

facts that would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.” Fed. R. Civ. P.

56(c)(4). “Although evidence may be considered in a form which is

inadmissible at trial, the content of the evidence must be capable of

admission at trial.” , 994 F. Supp. 2d 593, 599

(M.D. Pa. 2014); , 192 F.3d

378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary

judgment, to consider evidence that is not admissible at trial).

III. Discussion

Both parties have moved for summary judgment concerning the

plaintiffs’ remaining three claims: (1) claims based upon Section 504 of

the Rehabilitation Act (Count I); (2) claims under the Americans with

Disabilities Act (Count II); and (3) a state-law negligence claim (Count

III).

A. The RA and ADA Claims

Section 504 of the Rehabilitation Act provides that “[n]o otherwise

qualified individual with a disability … shall, solely by reason of her or

his disability, be excluded from the participation in, be denied the

benefits of, or be subject to discrimination under any program or activity

receiving Federal financial assistance.” 29 U.S.C. § 794(a). Title II of the

ADA states that: “no qualified individual with a disability shall by reason

of such disability be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity or be

subjected to discrimination by any entity.” 42 U.S.C. § 12132.

Claims under the ADA and the RA are generally subject to the same

substantive standard. , 729

F.3d 248, 260 (3d Cir. 2013);

522 F. Supp. 3d 78, 103 (M.D. Pa. 2021). A student

alleging that he has been discriminated against by a school under the

ADA and the RA must prove that he “(1) has a disability; (2) was

otherwise qualified to participate in a school program; and (3) was denied

the benefits of the program or was otherwise subject to discrimination

because of [his] disability.” ,

587 F.3d 176, 189 (3d Cir. 2009). Although claims under the RA and the

ADA are otherwise generally the same, the causation elements of the RA

and the ADA differ in that the “RA allows a plaintiff to recover if he or

she were deprived of an opportunity to participate in a program on

the basis of disability, while the ADA covers discrimination on the basis

of disability, even if there is another cause as well.”

, 734 F.3d 229, 235―36 (3d Cir. 2013) (emphasis added). Both

statutes require plaintiffs to prove “that they were treated differently

based on the protected characteristic, namely the existence of their

disability.” at 237. A claim under the RA also requires that the school

or board of education receives federal financial assistance.

, 191 F. Supp. 3d 375, 389 (M.D. Pa. 2016).

To obtain compensatory monetary damages under § 504 of the RA

and the ADA, however, the Third Circuit requires a plaintiff to prove

intentional discrimination, which is analyzed under a deliberate

indifference standard. , 729 F.3d at 261, 263 (“[A] showing of

deliberate indifference may satisfy a claim for compensatory damages

under § 504 of the RA [and the ADA.]”);

, 765 F.3d 260, 269 (3d Cir. 2014). To satisfy the deliberate

indifference standard:

A plaintiff “must present evidence that shows both: (1)

knowledge that a federally protected right is

substantially likely to be violated…, and (2) failure to

act despite that knowledge.” at 265 (citing

, 260 F.3d 1124, 1139 (9th Cir. 2001)).

“Deliberate indifference does not require a showing of

personal ill will or animosity toward the disabled

person.” at 263 (quoting

, 639 F.3d 384, 389 (8th Cir. 2011) (internal

quotation marks omitted)). It does, however, require a

“‘deliberate choice, rather than negligence or

bureaucratic inaction.’” (quoting

, 582 F.3d 268, 276 (2d Cir. 2009)).

, 765 F.3d at 269.

Here, the plaintiffs have alleged similar claims under the RA and

the ADA against the District. In essence, the plaintiffs argue that the

District discriminated against Michael P. and denied him the equal

benefits of his transportation program by failing to provide him with safe

and properly supervised transportation free from injury and bodily harm.

(Doc. 1, ¶¶ 39, 41―43, 47―48, 49―50, 60―63). Specifically, the plaintiffs

contend that the District showed deliberate indifference to Michael P.’s

federally protected rights because Michael P. had a “long-standing and

specific habit of rushing off the bus and leaping from the top step” and

that the District failed to assist him during the transportation process

despite its awareness of Michael’s disabilities causing him to jump

dangerously off the bus. (Doc. 52, at 11). Indeed, both parties’ cross

motions for summary judgment concern the dispute about whether the

District had knowledge of Michael P.’s propensity to jump. The plaintiffs

have moved for summary judgment on the basis that the District had

adequate awareness of Michael P.’s tendency to jump from the bus; the

District moves for summary judgment on the basis that it never had that

awareness. Nonetheless, upon review of the record, there remains a

genuine dispute of material fact about the District’s awareness of Michael

P.’s propensity to leap that precludes the granting of either party’s

motion.

There is no dispute that Michael P.’s Down syndrome diagnosis

required transportation-related safety measures while riding the bus.

(Doc. 56-2, ¶ 33); (Doc. 57, ¶ 4). At the time of the injury, the District had

provided Michael P. transportation accommodations consisting of “curb-

to-curb transportation on a small vehicle [with] a booster seat.” (Doc. 56-

2, ¶¶ 33, 34); (Doc. 57, ¶ 11). One of those reasons for the

accommodations, as the District concedes, is that Michael P. had a

“tendency to run (elope) and run into the road.” (Doc. 57, ¶ 13); (Doc. 58,

¶ 13). Michael P.’s most recent individualized education program noted

that “[d]ue to Michael’s limited ability to understand and express

language, sensory issues with noise and his lack of safety awareness

including [issues with] elopement that could be dangerous), the team

feels it would benefit him to have specialized transportation….” (Doc. 56-

2, ¶ 39) (emphasis included); (Doc. 57, ¶ 10). Moreover, the District also

concedes that Michael P. would sometimes jump into his father’s arms

when dropped off at home after school. (Doc. 56-2, ¶ 54); (Doc. 57, ¶¶

19―21). Therefore, it would appear that the District had knowledge of

both Michael P.’s propensity to elope into the street and jump into his

father’s arms upon arrival of his home. The plaintiffs have moved for

summary judgment arguing that the District should have been aware

that there was a substantial risk that Michael P. could leap out of the bus

causing himself injuries based in part on these prior tendencies and his

disabilities. But the plaintiffs’ categorization of the events occurring on

June 5, 2019, are not that simple. Many of the plaintiffs’ interpretations

of facts are disputed by the District and are better left to be determined

by a factfinder. , 477 U.S. at 255 (“Credibility

determinations, the weighing of evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge, whether

he is ruling on a motion for summary judgment or for a directed verdict.”).

First, there is a genuine dispute of material fact about whether the

District had, or should have had, awareness that Michael P. would jump

from the top of the bus onto the pavement. As noted above, the District

concedes that it had awareness that Michael P. had a propensity to run

into the road or jump into his father’s arms at the end of the school day.

But the District notes that on June 5, 2019, Michael P. did not jump into

his father’s arms upon arrival to his home but rather when the bus

arrived at school. (Doc. 56-2, ¶ 55). According to the District, “[f]rom his

time at Pocono Mountain School District, to his start at the School

District in fall 2017, through June 4, 2019 (and arguably June 5),

[Michael] never once jumped from the top of the bus steps, or eloped from

the bus, while being dropped off at school.” ( ). Moreover, the District

contends that Michael P. never had any prior problems with navigating

the bus stairs throughout the years. (Doc. 56, at 10) (“Ms. Thompson[, a

classroom aid,] never shared any concerns about Student’s ability to get

off the bus, and specifically, never mentioned issues with navigating the

stairs or jumping.”). Therefore, the determination of whether the District

had prior knowledge that Michael P. could jump from the bus steps on

June 5, 2019, upon arrival to the school remains better left to a jury.

Second, there remains a question about whether Michael P. actually

jumped from the bus or whether he fell inadvertently. The District argues

that Michael P. “either stopped short or lost his balance causing him to

fall.” (Doc. 56-2, ¶ 93). Moreover, it contends that “[t]here were no

warning signs before Student fell, and … that because it happened so

fast… [no one] could have done anything else to stop the fall.” ( , ¶ 92).

The plaintiffs argue that “Michael leaped head-first from the top step of

his school bus.” (Doc. 52, at 2). This issue, again, is better left to the

determination of a factfinder.

For these reasons, there are genuine disputes as to the material

facts whether the District was aware of Michael P.’s propensity to jump

and whether Michael P. did in fact jump that prevents the Court from

granting either party’s motion for summary judgment for the plaintiffs’

RA and ADA claims.5

B. The Negligence Claim

The plaintiffs also allege that the District and its employees had a

duty, under applicable law, to appropriately supervise and transport

Michael P. safely and free from unreasonable and foreseeable risks of

harm; to hire, train, and supervise employees that would transport him

safely; and to refrain from taking unreasonable actions that would cause

him injury. (Doc. 1, ¶ 66). They further allege that the District breached

its duties, and its negligence caused injuries to Michael P. ( , ¶¶ 68―70).

Here, the District has moved for summary judgment by asserting that

the Political Subdivision Torts Claim Act (“PSTCA”) bars the plaintiffs’

negligence claim, and it argues that the “vehicle liability” exception

under 42 Pa. Cons. Stat. Ann. § 8542(b)(1) does not apply to this action

because Michael P.’s injuries did not arise from the of the bus.

The Commonwealth of Pennsylvania and its agencies, officials, and

5 While the plaintiffs argue that the undisputed facts show that the

District had awareness of Michael’s propensity to jump from the steps,

the District contends that those same facts prove that the District had no

awareness. Our analysis applies equally to both parties’ arguments that

there remains a genuine dispute of material fact as to the District’s

awareness.

employees are generally immune from suits for damages when acting

within the scope of their duties.

, 320 A.3d 872, 876 (Pa. Commw.

Ct. 2024). “The Judicial Code lists exceptions to sovereign immunity,

which apply to ‘damages arising out of a negligent act where the damages

would be recoverable under the common law or a statute creating a cause

of action if the injury were caused by a person not having available the

defense of sovereign immunity.’” (quoting 42 Pa. Cons. Stat. Ann. §

8522(a)). One of these exceptions is known as the “vehicle liability”

exception. 42 Pa. Cons. Stat. Ann. § 8542. The vehicle liability

exception provides that liability may be imposed on a local agency where

injury is caused by the “operation of any motor vehicle in the possession

or control of the local agency.”6 42 Pa. Cons. Stat. Ann. § 8542(b)(1).

Pennsylvania courts have defined “operation” as follows:

The process of operating a vehicle encompasses more

than simply moving the vehicle. When a person

“operates” a vehicle, he makes a series of decisions and

actions, taken together, which transport the individual

from one place to another. The decisions of where and

whether to park, where and whether to turn, whether to

6 The dispute between the parties lies solely on the definition and

application of the word “operation” in the statute. Neither party contests

whether it was in the “possession or control of the local agency.”

engage brake lights, whether to use appropriate signals,

whether to turn lights on or off, and the like, are all part

of the “operation” of a vehicle.

, 191 A.3d 799, 810 (Pa. 2018).7

Courts have also articulated that the term “operation” includes failures

to act. , 320 A.3d at 873 (holding that a failure to engage

attachments, such as a handicap ramp, constitutes the “operation” of a

public bus). But here, upon review of the record, there is still a dispute of

material fact as to whether Michael P.’s accident arose from any

“operation” of the bus, preventing the Court from granting either party’s

motion for summary judgment.

The plaintiffs argue that sovereign immunity is inapplicable in this

action because Michael P.’s injuries resulted from the District’s failure to

act and thus, fall outside the scope of the vehicle liability exception. (Doc.

52, at 12). In support, they cite , where the court found that

a driver’s refusal (and failure) to lower a handicapped ramp for a plaintiff

weakened by cancer fell under the definition of “operation” for purposes

7 In , the Pennsylvania Supreme Court adopted the

definition of “operation” as previously articulated by former Justice

Sandra Schultz Newman in a dissenting opinion in

, 739 A.2d 127 (Pa. 1999) (Newman, J., dissenting).

of sovereign immunity. ( , at 13) (citing , 320 A.3d at 874,

879). The court in articulated that a party’s “failure to act”

in the context of the vehicle liability exception must concern a “failure to

engage attachments [of the vehicle], such as a handicap ramp” rather

than a general negligent act that may indirectly involve the vehicle.

at 879. Here, the plaintiffs allege that the bus driver’s negligent use of

the bus doors contributed to Michael P.’s injuries, (Doc. 1, ¶¶ 18, 68), and

upon review of the evidence provided to the Court (Doc. 51-8), we find

that a reasonable factfinder could conclude that Michael P.’s injuries

could have arisen from the bus driver’s “operation” of the bus doors. Much

like the decisions of “where and whether to park, where and whether to

turn, [and] whether to engage brake lights…,” the decision of whether to

open and close bus doors constitutes an “operation” of a vehicle.

, 191 A.3d at 810. But, “a plaintiff must demonstrate that their

injury was by the negligent operation of a sovereign party’s

vehicle” to invoke the vehicle liability exception.

, 779 F. Supp. 3d 509, 536 (E.D. Pa. 2025)

(emphasis added). Indeed, while a factfinder could determine the opening

of the doors played no role in Michael P.’s injuries, a reasonable factfinder

could equally conclude that the opening of the bus doors served as a

potential catalyst to Michael P. jumping out of the bus, or at the very

least, contributed to the extent of Michael P.’s injuries. Therefore, the

determination of whether the bus driver’s operation of the vehicle’s bus

doors contributed to Michael P.’s injury is better suited for the jury rather

than this Court. We will deny both parties’ motions for summary

judgment as to the plaintiffs’ negligence claim.

IV. Conclusion

For the foregoing reasons, the parties’ cross motions for summary

judgment will be denied.

An appropriate order follows.

Dated: January 9, 2026

JOSEPH F. SAPORITO, JR.

United States District Judge