Thomas v. Garner

Procedural entryThis page is a short order in Thomas v. Garner. Read the opinion of the Court — 284 Ill. App. 3d 90
Appellate Court of Illinois·Decided October 23, 1996·No. 5-95-0918·Published

Opinion

                              NO. 5-95-0918

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT

_________________________________________________________________

THERESA THOMAS, Individually and as  )  Appeal from the

Next Friend and Mother of LATOSHA    )  Circuit Court of

FRANKLIN, a/k/a LATOSHA THOMAS, a    )  St. Clair County.  

minor child,                         )

                                    )               

    Plaintiff-Appellee,             )

v.                                   )  No. 90-L-1328

                                    )

DERRICK GARNER,                      )  Honorable

                                    )  Milton S. Wharton,

    Defendant-Appellant.            )  Judge, presiding.  

_________________________________________________________________

    PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

    This case is on appeal pursuant to Supreme Court Rule 308.

155 Ill. 2d R. 308.  On November 27, 1995, the trial court granted

defendant's oral motion for interlocutory appeal, finding, "[T]here

are questions of law as to which there [are] substantial grounds

for difference of opinion and *** resolution of two issues will

materially advance the litigation."  The trial court certified the

following questions for appeal:

         "1.  Does the circuit court have jurisdiction of an

    action against a state-employed bus driver for alleged

    violation of a state statute requiring a school bus driver to

    discharge passengers on a four-lane highway only at a place

    where their residences are to the right of the highway,

    pursuant to [section 11-1415 of the Illinois Vehicle Code (625

    ILCS 5/11-1415 (West 1994))]?

         2.  Does the driver of a school bus owe a duty of care to

    a plaintiff-pedestrian where the plaintiff-pedestrian is

    struck by an automobile while crossing the street to pick up

    a child passenger where the plaintiff-pedestrian alleges that

    the bus driver negligently placed his passenger in a position

    of peril, necessitating rescue by the plaintiff-pedestrian?"

On January 10, 1996, this court granted defendant's application for

leave to appeal from the above-certified questions.

                          A. PROCEDURAL HISTORY

    On December 13, 1990, plaintiff, Theresa Thomas (Theresa),

individually and as the next friend and mother of Latosha Franklin,

a/k/a Latosha Thomas (Latosha), filed a one-count complaint against

defendant.  The relevant allegations of plaintiff's complaint are

as follows.  Latosha is a minor child, born November 23, 1979.

Theresa is her mother.  Defendant was "the operator of a certain

school bus" and was charged with the responsibility of transporting

Joseph Franklin (Joseph), the younger brother of Latosha, "to and

from his residence and school facilities."  On or about October 31,

1989, when defendant was transporting Joseph back to his residence,

Latosha "was struck while crossing the street as a direct and

proximate result of the negligent acts or omissions of the

Defendant."  

    In her complaint, Theresa alleged that defendant was negligent

in failing to exercise ordinary care, by permitting Joseph "to

alight from the bus across the street from his residence" and in

failing to transport Joseph to "a place from which he could have

walked to his home without crossing the street," thereby placing

him "in a position of peril that necessitated rescue by Latosha

Franklin."  Plaintiff alleged that defendant "permitted or was

going to permit Joseph Franklin to leave the bus unassisted when he

knew or should have known that such a procedure would be likely to

result in an injury to Joseph Franklin and further that such a

procedure would necessitate the rescue of Joseph Franklin by such

other individuals as the Plaintiff."  

    On May 22, 1995, defendant filed a motion for summary judgment

on the grounds, inter alia, that defendant owed no duty to

plaintiff's child, who was not a bus passenger, and that it was not

reasonably foreseeable that a nonpassenger would run across the

street as the bus was stopped to drop off a passenger.  On October

26, 1995, the trial court denied defendant's motion for summary

judgment.

    In November 1995, defendant filed a motion to dismiss for want

of jurisdiction, on the ground that the doctrine of sovereign

immunity barred this suit against defendant in the circuit court

and thus the court of claims had exclusive jurisdiction.  On

November 27, 1995, the trial court denied defendant's motion to

dismiss and certified the above questions for interlocutory appeal.

                               B. ANALYSIS

                             1. JURISDICTION

    We now turn to the first certified question, whether the

circuit court is vested with jurisdiction of plaintiff's claim.

Defendant argues that this lawsuit is only nominally against him,

and that the real party in interest is the State of Illinois.

Where a lawsuit is nominally against a State employee, but where a

judgment in plaintiff's favor could operate to control the actions

of the State or subject it to liability, then the action is

regarded as against the State and must be brought in the court of

claims.  Currie v. Lao, 148 Ill. 2d 151, 158 (1992); 705 ILCS 505/8

(West 1994).  The determination of whether a case is against the

employee as an individual or against the State depends upon the

issues involved and the relief sought.  Currie, 148 Ill. 2d at 158;

Healy v. Vaupel, 133 Ill. 2d 295 (1990).

    Defendant argues that a plaintiff cannot evade the exclusive

jurisdiction of the court of claims by suing the employee when his

real claim is against the State itself.  As a general rule,

Free access — add to your briefcase to read the full text and ask questions with AI

Thomas v. Garner, (Ill. Ct. App. 1996).

Thomas v. Garner (Thomas v. Garner) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Seibutis v. Smith
404 N.E.2d 950 (Appellate Court of Illinois, 1980)
Janes v. Albergo
626 N.E.2d 1127 (Appellate Court of Illinois, 1993)
Bachman v. Sharon & Lo's Place, Inc.
541 N.E.2d 153 (Appellate Court of Illinois, 1989)
People v. Davis
410 N.E.2d 673 (Appellate Court of Illinois, 1980)
Koch v. Spalding
529 N.E.2d 19 (Appellate Court of Illinois, 1988)
Robb v. Sutton
498 N.E.2d 267 (Appellate Court of Illinois, 1986)
Healy v. Vaupel
549 N.E.2d 1240 (Illinois Supreme Court, 1990)
Currie v. Lao
592 N.E.2d 977 (Illinois Supreme Court, 1992)