BEVERLY — A judge has again rejected an argument by the lawyer for a school bus driver, who is charged with child endangerment, that his client's failure to check for children before he got off the bus was merely negligent, but not criminal child endangerment.
Judge Randy Chapman, in a nine-page ruling Wednesday, concluded that "the primary, if not sole, duty of a school bus driver is the safe transportation of students to and from school."
And under the totality of the circumstances in this case, Chapman concluded that David Boutros' "abdication of his responsibility in this matter establishes probable cause for the complaint for wanton or reckless endangerment of a child."
Boutros, 72, of Haverhill, was charged last year after he left 5-year-old Cove Elementary School kindergartener Ian Hyso on a bus on the morning of Sept. 7, 2018.
The child had gotten aboard the bus shortly after 7 a.m. and was supposed to be dropped off at the school, but forgot to get off.
The boy then rode on the bus while it continued its routes to the Saints' Academy and the middle school in Beverly. Boutros did not check for children after any of those morning runs, the judge noted.
Boutros insisted that he had checked the bus, but video surveillance found that was not the case.
"The video footage shows the defendant parked the bus and immediately exited," Chapman wrote. "He did not look back or check the bus for students."
That was a violation of protocols.
Boutros' lawyer, Jack Milgram, had argued that while negligent, it was not "wanton or reckless." He asked the judge to dismiss the charge.
Milgram had made, and lost, a similar argument earlier this year. But in light of a Supreme Judicial Court ruling in June in the case of a woman charged with child endangerment after failing to make sure her nephews were properly placed in car or booster seats before a fatal car accident, in which the court vacated those convictions, Milgram asked Chapman to reconsider.
Chapman said in his decision he does not fault Milgram for seeking reconsideration, but concluded that the circumstances of the Beverly incident were different.
"The defendant here was in the role of a caregiver and is alleged to have left or otherwise abandoned a child on a school bus," Chapman wrote. Because of that, he said he considered case law on child abandonment cases to be more relevant, and those cases require a judge to consider the specific facts and totality of the circumstances.
In the Boutros case, the judge said, there were a number of factors he took into account.
The child's age was one; Boutros "understood he was responsible for the care of very young children, who were incapable of caring for themselves independently."
Boutros left the child on the bus, in a depot, and was inaccessible to the child, and for an extended period of time, Chapman wrote. It was approximately 4 1/2 hours before the child, who had gotten off the bus and walked a significant distance alone, was struck by a car while crossing a parking lot.
The judge also found that Boutros made no effort to follow protocols — or common sense — and check the bus after each run.
"Abandoning the child on a bus in a bus yard for a protracted period of time exposed the child to a serious risk of harm," Chapman wrote. "The fact that the child was not seriously harmed is not determinative."
Instead, the judge found, the standard is whether Boutros or any other reasonable person under the same circumstances would have realized the potential danger.
"The court finds that a reasonable person in these circumstances would have realized that the child could be seriously harmed in a number of ways," Chapman said. Even getting off a bus in a bus yard is dangerous, he continued. It's reasonable to believe that a child would have wanted to go home. The yard was in a busy area, including major intersections and roadways, and the four-lane state highway (Route 62) where he was ultimately struck by a car.
"Plainly stated, it does not take a fertile imagination to envision any number of ways that the child could have suffered serious injury by being abandoned on a bus for hours," said the judge.
His conduct both before and after the incident was also considered by the judge; the boy's mother told police that Boutros had previously dropped off the child and left before making sure he was with an adult, and after the incident, Boutros "did not appear concerned about Ian."
Boutros is due back in court on Sept. 25.
Courts reporter Julie Manganis can be reached at 978-338-2521, by email at firstname.lastname@example.org or on Twitter at @SNJulieManganis.