Green v. Carlinville Community Unit School District No. 1

887 N.E.2d 451, 381 Ill. App. 3d 207, 320 Ill. Dec. 307, 2008 Ill. App. LEXIS 253

• Court: Appellate Court of Illinois
• Decided: March 28, 2008
• Docket: 4-07-0297
• Status: Published

Opinions

JUSTICE STEIGMANN

delivered the opinion of the court:

In February 2005, plaintiff, Misty Green, sued defendants Carlin-ville Community Unit School District No. 1 (District) and Lucille Mansfield, based on Green’s allegation that Mansfield sexually abused her when Green was a minor. In July 2006, the District moved for summary judgment, and in November 2006, the trial court granted the District’s motion.

Green appeals, arguing that the trial court erred by granting the District’s motion for summary judgment. We affirm in part and reverse and remand in part with directions.

I. BACKGROUND

From August 1991 through May 1992, Green attended kindergarten at North Elementary, which was operated by the District. Green rode the District’s school bus to and from school. In September 1991, Green told her mother that Mansfield, a school bus driver employed by the District, had sexually molested her. In May 1992, Mansfield was convicted of three counts of child abuse and sentenced to four years in prison.

In September 1992, Green’s parents, along with six other families, collectively filed a complaint in federal district court against the District (case No. 92 — 3238). Their complaint alleged that over the course of several months, Mansfield sexually abused and assaulted their children. The District filed a motion to dismiss, arguing in part that it was not liable for the intentional torts of Mansfield because the District was not a common carrier. In July 1993, the federal court denied the District’s motion upon determining that Illinois courts had previously held that school districts that transport children by bus must be held to the same standard of care as common carriers. Hammann v. Carlinville Community Unit School District No. 1, No. 92—3238 (C.D. Ill. July 8, 1993). However, prior to trial, Green’s parents voluntarily withdrew their complaint, and the federal court dismissed their case without prejudice. Hammann v. Carlinville Community Unit School District No. 1, No. 92—3238 (C.D. Ill. April 8, 1994).

In February 2005, Green filed a complaint against the District and Mansfield. Green alleged that the District (1) engaged in intentional infliction of emotional distress (count I), (2) committed assault and battery (count III), (3) was negligent per se (count V), (4) negligently hired Mansfield (count VI), (5) engaged in negligent supervision (count VII), and (6) was a common carrier (count VIII). All of the counts against the District were primarily premised on count VUI’s allegation that the District was a common carrier and, thus, “had a nondel[ejgable duty of care towards its passengers, with such duty to retain direct and primary responsibility for operating the bus with the highest degree of care.” However, during the course of the trial court proceedings, Green also argued that the District owed its student bus passengers the highest degree of care, regardless of whether it was a common carrier.

In April 2005, the District filed a motion to dismiss Green’s complaint arguing, in part that (1) it was not a common carrier and (2) the complaint placed a greater duty on the District than that imposed by law.

Following an August 2005 hearing, the trial court denied the District’s motion upon determining that the 1992 federal court ruling denying the District’s motion to dismiss should be given great weight since Green was a party to the federal action at the time of the federal court’s ruling. The court also found that the District’s standard of care, rather than its status as a common carrier, governed the court’s review of the complaint.

In December 2005, the case was reassigned to another trial judge. In July 2006, prior to any District representative being deposed, the District filed a motion for summary judgment, arguing that (1) the District was not operating as a common carrier; (2) Mansfield was not acting within the scope of her employment when the alleged conduct occurred; (3) the statute mandating that school districts perform criminal-background checks before hiring an employee (105 ILCS 5/34 — 18.5 (West 2006)), which Green relied on in count V of her complaint, was not in effect when the District hired Mansfield; (4) the District had immunity over its hiring decisions, pursuant to section 2 — 201 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2 — 201 (West 2006)); and (5) no factual support existed that the District negligently supervised Mansfield when she was acting within the scope of her employment. The District’s affidavit in support of its motion stated that the purpose of the District’s buses was to transport registered District students to and from school and school-related activities.

In November 2006, the trial court granted the District’s motion for summary judgment. In so doing, the court determined that (1) each of Green’s counts against the District was premised on the allegation that the District was a common carrier, which imposes a heightened duty of care, (2) the District was not a common carrier, and (3) Green’s negligence per se allegations against the District failed because the statute Green relied on was not in effect when the District hired Mansfield. The court later found that no just reason existed to delay either enforcement or appeal of its ruling (210 Ill. 2d R. 304(a)).

This appeal followed.

II. ANALYSIS

A. Standard of Review

We review de novo a trial court’s decision to grant a motion for summary judgment. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291, 730 N.E.2d 1119, 1127 (2000). A party is entitled to summary judgment if the pleadings, depositions, and admissions on file, together with any affidavits, show that no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law (735 ILCS 5/2 — 1005 (West 2006)).

B. The Trial Court’s Grant of Summary Judgment as to Counts I, III, and VII

Green first argues that the trial court erred by granting summary judgment as to count I (intentional infliction of emotional distress), count III (assault and battery), and count VII (negligent supervision). Specifically, she contends that (1) the court erred by determining that the District was not acting as a common carrier, which imposes a heightened duty of care; and (2) even if the District was not acting as a common carrier, it should be held to the same standard as a common carrier. We agree with Green’s second contention.

1. The Trial Court’s Determination That the District Was Not Acting as a Common Carrier

In Doe v. Rockdale School District No. 84, 287 Ill. App. 3d 791, 793-94, 679 N.E.2d 771, 773 (1997), the Third District discussed the distinction between common and private carriers, as follows:

“Long-standing authority in Illinois has held that a common carrier is ‘one who undertakes for the public to transport from place to place such persons or the goods of such as choose to employ him for hire.’ [Citations.] A common carrier ‘undertakes for hire to carry all persons indifferently who may apply for passage so long as there is room and there is no legal excuse for refusal.’ [Citation.] Moreover, a common carrier may be liable for an unexcused refusal to carry all who apply. [Citation.] The definitive test to be employed to determine if a carrier is a common carrier is whether the carrier serves all of the public alike. [Citations.]

A private carrier, by contrast, undertakes by special agreement, in a particular instance only, to transport persons or property from one place to another either gratuitously or for hire. [Citation.] A private carrier makes no public profession to carry all who apply for carriage, transports only by special agreement, and is not bound to serve every person who may apply.”

In Doe, the plaintiff sued the Rockdale School District, alleging that another student sexually assaulted her son on a school bus while traveling to school. After denying the Rockdale School District’s motion to dismiss, the trial court presented the following certified question to the appellate court: “whether the defendant providing transportation to students to and from specialHeducation classes out of county pursuant to contract with Crawford Bus Service, Inc. (Crawford), is operating as a common carrier.” Doe, 287 Ill. App. 3d at 793, 679 N.E.2d at 772.

The Third District concluded that the contract between the Rock-dale School District and Crawford did not provide for the transportation of any additional passengers or cargo by Crawford other than the school district’s special-education students. Accordingly, the court stated the following:

“Given the total absence of any allegation that Crawford either held itself out to, or in fact did, serve the general public or any members thereof except those students it contracted to carry, we are compelled to agree that Crawford, and by extension any principal of Crawford [i.e., Rockdale], was acting as a private carrier [and not a common carrier] when the alleged injury occurred.” Doe, 287 Ill. App. 3d at 795, 679 N.E.2d at 774.

In this case, Green did not allege that the District (1) advertised its bus services to members of the general public or (2) transported all members of the general public in an indiscriminate manner. Further, according to the District’s unrebutted affidavit, the District only transported its students to and from school and school-related activities. Thus, we conclude that the trial court did not err by determining that the District was not acting as a common carrier.

2. Green’s Claim That the District Should Be Held to the Same Standard of Care as a Common Carrier

Besides not being a common carrier, the District argues that Green cannot overcome the fact that under Illinois law an employer is not vicariously liable for acts of its employees that were not within the scope of their employment or performed for their employer’s benefit. Ordinarily, employers are not liable for the acts of their employees if the employee’s acts were not committed within the scope of his or her employment. Pyne v. Witmer, 129 Ill. 2d 351, 359, 543 N.E.2d 1304, 1308 (1989). “In the context of respondeat superior liability, the term ‘scope of employment’ excludes conduct by an employee that is solely for the benefit of the employee.” Deloney v. Board of Education of Thornton Township, 281 Ill. App. 3d 775, 784, 666 N.E.2d 792, 798 (1996). “[Gjenerally, acts of sexual assault are outside the scope of employment.” Deloney, 281 Ill. App. 3d at 783, 666 N.E.2d at 798.

Exceptions to this general rule do exist, and one such exception involves common-carrier liability. Our supreme court has long held that if an employee of a common carrier intentionally injures a passenger, the common carrier is hable for the passenger’s injuries, even if the employee’s actions were not in his actual or apparent scope of authority. Chicago & Eastern R.R. Co. v. Flexman, 103 Ill. 546, 552 (1882). Thus, a common carrier can be liable for the intentional acts of its employees even if the intentional act is outside the employee’s scope of employment and does not benefit the employer. Under this long-standing Supreme Court of Illinois precedent, a common carrier could be liable for the sexual assault of one of its passengers by one of its employees.

As we previously stated, a school district that operates buses to transport its students is not a common carrier. However, it is performing the same basic function, transporting individuals. Like a passenger on a common carrier, a student on a school bus cannot ensure his or her own personal safety but must rely on the school district to provide fit employees to do so. Accordingly, we conclude that school districts that operate school buses owe their students the highest degree of care to the same extent common carriers owe their passengers the highest degree of care. To hold that adults on public transportation buses are entitled to more protection than the most vulnerable members of our society — namely, children on a school bus — is ludicrous. In fact, holding a school district that buses children to such a high standard is more compelling than holding a common carrier to the same standard.

We are not the first Illinois court to hold that a school district that transports its students by bus owes the student passengers the highest degree of care. In Garrett v. Grant School District No. 124, 139 Ill. App. 3d 569, 575, 487 N.E.2d 699, 702 (1985), the Second District held that a school district that transports its students by bus should be held “to the same standards of care as that imposed on a private party operating as a common carrier.”

The District suggests that this court should not follow Garrett because (1) Doe somehow overruled Garrett and (2) Garrett dealt with a negligent act, not an intentional one, as in this case. We are unpersuaded.

We first note that we would have reached the same decision based on the reasons stated above even if Garrett had never been decided. Further, we are not persuaded that Doe overruled Garrett. The sole question answered in Doe was whether a school district that provided transportation to and from classes was a common carrier (Doe, 287 Ill. App. 3d at 793, 679 N.E.2d at 772), not what standard of care applies to a school district operating a bus for its students. In addition, whether the school bus passenger suffered his injury as a result of negligence or an intentional act is irrelevant.

The District also contends that it should be treated differently than a private party because it is a public, governmental entity. In this regard, the District points out that the duty it owes to students being transported on its school buses is a public-policy decision better left to the Illinois General Assembly.

While common-law rules may not impose liability on a public entity where the Tort Immunity Act applies (Floyd v. Rockford Park District, 355 Ill. App. 3d 695, 704, 823 N.E.2d 1004, 1012 (2005)), that is not the issue before us. Here, this court has a duty to determine what common-law duty a school district owes to its student passengers when they are being transported on the school district’s bus.

Defendant is free to argue on remand that it has immunity as a public body, regardless of its common-law duty, or to lobby the General Assembly, the policymaking body of the State, to specifically make school districts immune from future claims of this type. The legislature may determine, for sound policy reasons, that school districts should not be held to this standard of care. However, as we decide the case before us, we must do so in the context of the law as it now stands, not as policymakers may change it.

We thus conclude that the trial court erred by granting summary judgment on count I (intentional infliction of emotional distress), count III (assault and battery), and count VII (negligent supervision), based on its determination that because the District was not a common carrier, it did not owe Green the highest degree of care that a common carrier would have owed her.

3. Scope of Our Holding on This Issue

Our holding on this issue is limited to the common-law duty school districts owe student passengers while the students are being transported on a school bus. It neither enhances nor weakens the duties school districts already owe their students in other circumstances.

C. The Trial Court’s Rulings on Counts V, VI, and VIII

1. Count V — Negligence Per Se

Green also argues that the trial court erred by granting summary judgment as to count V We agree.

Count V alleged that the District negligently and carelessly failed to perform proper criminal, child abuse, and neglect investigations of Mansfield, pursuant to section 34 — 18.5 of the School Code (105 ILCS 5/34 — 18.5 (West 2002)). In its memorandum in support of its motion for summary judgment, the District argued that Mansfield was hired in 1987 before this statute took effect. However, the trial court stated the District hired Mansfield many years before the statute became effective in 1985. Thus, a question of fact remains regarding when the District hired Mansfield — before 1985 or in 1987.

2. Count VI — Negligent Hiring

Green also argues that the trial court erred by granting summary judgment as to count VI (negligent hiring). The District responds that it has immunity under section 2 — 201 of the Tort Immunity Act (745 ILCS 10/2 — 201 (West 2006)). We agree with Green.

Section 2 — 201 provides as follows:

“Except as otherwise provided by [s]tatute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.” 745 ILCS 10/2 — 201 (West 2006).

The District claims that because its decision to hire Mansfield was discretionary, it has immunity under section 2 — 201. See Johnson v. Mers, 279 Ill. App. 3d 372, 380, 664 N.E.2d 668, 675 (1996) (village’s decision to hire a police officer was discretionary).

Green cites Mueller v. Community Consolidated School District 54, 287 Ill. App. 3d 337, 678 N.E.2d 660 (1997), for the proposition the Tort Immunity Act does not apply to the negligent hiring claim alleged in count VI. In Mueller, the First District stated as follows:

“[S]ection 2 — 201 gives governmental entities immunity from liability for injuries resulting from exercise of discretionary authority. Here the School District’s discretion is fettered by the criminal-background-check statute. The statute provides that the School District ‘shall not knowingly employ a person for whom a criminal background investigation has not been initiated.’ 105 ILCS 5/34— 18.5(d) (West 1994). Given the statute’s mandatory language, we find that it requires the School District to at least commence an investigation of employment applicants before it is vested with the discretionary authority to hire. We therefore conclude that the School District’s failure to comply with the statutorily imposed condition precedent vitiates any immunity it might otherwise have enjoyed under section 2 — 201 of the Tort Immunity Act for hiring [its employee].” Mueller, 287 Ill. App. 3d at 346, 678 N.E.2d at 666.

We agree with Mueller. However, as stated earlier, a question of fact remains as to when the District hired Mansfield. Thus, we cannot determine whether the District would have immunity under the Tort Immunity Act. Accordingly, we conclude that the trial court erred by granting the District’s motion for summary judgment as to count VI.

3. Count VIII — Common Carrier

Last, Green argues that the trial court erred by granting summary judgment as to count VIII. We disagree.

The trial court did not err by granting summary judgment as to this count, in which Green alleged a separate cause of action based on the District’s status. First, as earlier discussed, the District was not operating as a common carrier. Second, even if the District was so operating, this only created a heightened duty of care for its passengers, not a separate cause of action based merely on that status.

III. CONCLUSION

For the reasons stated above, we affirm the trial court’s judgment as to count VIII, reverse as to counts I, III, V VI, and VII, and remand for further proceedings. We also direct the trial court to allow Green to amend her complaint, ehminating all references to the District being a common carrier.

Affirmed in part and reversed in part; cause remanded with directions.

KNECHT, J., concurs.