Browne v. SCR MEDICAL TRANSP. SERVICES

• Decision Date: 30 March 2005
• Docket Number: No. 1-04-0141.,1-04-0141.
• Citation: 356 Ill. App.3d 642,292 Ill.Dec. 594,826 N.E.2d 1030
• Parties: Aisha BROWNE, Plaintiff-Appellant, v. SCR MEDICAL TRANSPORTATION SERVICES, INC., a corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

826 N.E.2d 1030

356 Ill. App.3d 642

292 Ill.Dec. 594

Aisha BROWNE, Plaintiff-Appellant, v. SCR MEDICAL TRANSPORTATION SERVICES, INC., a corporation, Defendant-Appellee.

No. 1-04-0141.

Appellate Court of Illinois, First District, Third Division.

March 30, 2005.

Power Rogers & Smith, P.C. (Larry R. Rogers and Devon C. Bruce, of counsel), for Appellant.

Johnson & Bell, Ltd. (Jack T. Riley, Cecilio L. Franco IV, of counsel), for Appellees.

Presiding Justice KARNEZIS delivered the opinion of the court:

Plaintiff-appellant Aisha Browne (Browne) appeals from an order of the circuit court granting defendant-appellee SCR Medical Transportation Services, Inc.'s (SCR) motion for summary judgment. On appeal, Browne argues the circuit court erred in granting summary judgment because there were questions of fact as to whether SCR was a common carrier and whether SCR should have known that its employee, Robert Britton, posed a danger to its customers.

This lawsuit arose as the result of SCR's employee, Robert Britton, sexually assaulting Browne. SCR is a medical transport company that provides paratransit services to disabled persons. In 1995, SCR entered into a contract with the Chicago Transit Authority (CTA) to transport disabled persons who were unable to use the CTA's mainline services. On July 14, 1995, Browne, pursuant to SCR's contract with the CTA, was a passenger in a vehicle driven by Robert Britton. Browne, who has cerebral palsy and is disabled, accused Britton of sexually assaulting her while she was in the vehicle and again a second time, inside her home. Britton was arrested and later convicted of the crimes. Browne filed this lawsuit against SCR and other defendants alleging that SCR, as a common carrier, owed Browne a heightened standard of care. SCR filed a motion for summary judgment alleging that because SCR was not a common carrier it owed its customers an ordinary standard of care and was not liable for the intentional criminal acts of its employee. The circuit court agreed and granted SCR's motion for summary judgment. Browne now appeals.

BACKGROUND

The contract between SCR and the CTA provided that SCR would perform certain specialized transportation services for people with disabilities and the CTA would agree to provide a subsidy to SCR for each person transported "in accordance with the terms and conditions set forth herein." The contract limited service to "those people with disabilities who are properly certified and are enrolled in the Special Services Program."

According to SCR president, Pamela Rakestraw, since SCR's inception in 1986, it has provided paratransit services to disabled persons only pursuant to written contracts. SCR's services have never been available to the general public. Pursuant to SCR's contract with the CTA, SCR was to provide services only to disabled persons certified under the Americans with Disabilities Act of 1990, 42 U.S.C. § 1201, et seq., and who placed a reservation with SCR for a specific trip or arranged for a pre-scheduled subscription service. SCR would then subject each trip request to a screening process whereby an SCR employee would check the requesting rider's computer file before scheduling a trip to determine if the passenger was eligible not only for paratransit services but also for the specific ride requested. SCR could and did refuse requests for trips from disabled persons who were either not properly certified by the CTA, who were not enrolled in the CTA's Special Services Program, or who were not eligible for the specific ride requested. SCR also declined requests for the following reasons: (1) the form of payment was unacceptable; (2) SCR did not have the specific type of vehicle needed to transport the individual given the individual's specific disability, handicap and/or needs; (3) there were not enough vehicles in SCR's fleet to accommodate the request for the trip at the time it was made; (4) the pickup location or the destination was too far or was too inconvenient; or, (5) the individual made specific requests with regard to the manner or method of transport that SCR deemed to be unsafe.

Robert Britton was hired in 1994 by a company known as Labor Leasing to become a driver for SCR. On January 5, 1995, Britton became an employee of SCR when the service agreement between Labor Leasing and SCR terminated. Pursuant to SCR's contract with the CTA, any driver in the Special Services Program must be pre-certified by the CTA. Prior to certification, SCR had to show that it applied for a criminal background check on the driver. SCR submitted Britton's name to the Illinois State Police for a background check, but did not submit his fingerprints. Pamela Rakestraw stated in her deposition that she was unaware of any law that required SCR to submit Britton's fingerprints with his background check. The background check indicated Britton had no prior convictions. Specifically, the letter stated:

"Based upon the information contained in your request, no conviction information was identified. This response is not a guarantee that conviction information on this individual does not exist under other personal identities. It is common for criminals to use false names and dates of birth which will not be identified by a non-fingerprint request for conviction information."

Britton's record from the City of Chicago, Department of Police, which was made part of the record on appeal, indicates that Britton had a long criminal history of arrests, but no prior convictions before the July 1995 assault of Browne. The report also indicates that Britton used the alias "Robert Vaughn."

At Britton's discovery deposition, Britton stated he never told SCR that he had previously used the name Robert Vaughn. He further stated he had no prior convictions before he was hired by SCR or before the alleged assault of Browne.

Nancy Isaac, the CTA's general manager for paratransit operations, stated in her deposition that after the CTA received the results of Britton's background check, he was certified by the CTA. She also stated that prior arrests would not warrant decertification by the CTA, but prior convictions would.

Several months prior to the incident involving Browne, one of SCR's customers, Esperanza Banda, accused an SCR driver of exposing himself to her and attempting to kiss her. Britton was suspected because he was the driver of the vehicle that was transporting Banda at the time of the alleged incident. Britton denied the allegations and Banda was unable to identify Britton in a lineup. Both Pamela and Stanley Rakestraw went to Banda's treatment center from where she had been picked up and spoke with one of Banda's therapists. The therapist indicated that Banda had a boyfriend at the center, which was not looked upon with favor and Banda tried to hide this from her mother. The therapist suggested that Banda might have thought she would get into trouble because she had been seen kissing her boyfriend, so she fabricated a story that Britton tried to kiss her. Stanley Rakestraw also stated in his deposition that when he informed SCR's other drivers about Banda's allegations, they indicated that they would sometimes have to pull over and separate Banda and another individual because they were "making out" in the vehicle.

ANALYSIS

Browne maintains on appeal that the circuit court erred in granting summary judgment because there was a question of fact as to whether SCR was a common carrier and whether SCR should have known that Britton was unfit to transport disabled individuals.

Summary judgment is proper if the pleadings, depositions, affidavits, admissions, and other matters on file demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Smith v. Armor Plus Co., Inc., 248 Ill. App.3d 831, 839, 187 Ill.Dec. 625, 617 N.E.2d 1346 (1993). The court should construe the evidence strictly against the movant and liberally in favor of the opponent. Richter v. Burton Investment Properties, Inc., 240 Ill.App.3d 998, 1001, 181 Ill.Dec. 780, 608 N.E.2d 1254 (1993). If reasonable persons could draw different inferences from undisputed facts, an issue of fact exists. Armor, 248 Ill.App.3d at 839, 187 Ill.Dec. 625, 617 N.E.2d 1346. Appellate review of an order granting summary judgment is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992).

Common Carrier

Browne argues the circuit court's order granting summary judgment was in error because there was a question of fact as to whether SCR was a common carrier. Browne advances three arguments in support of her contention. Browne's arguments are based on: (1) The Americans with Disabilities Act; (2) defendant's contractual relationship with the CTA; and, (3) defendant's agency relationship with the CTA. Before addressing Browne's contentions, we set forth some background on the distinction between common carriers and private carriers.

In Illinois, a common carrier is "one who undertakes for the...