Doe v. Rockdale School Dist., No. 84

• Decision Date: 01 April 1997
• Docket Number: No. 3-96-0597,3-96-0597
• Citation: 679 N.E.2d 771,223 Ill.Dec. 320,287 Ill.App.3d 791
• Parties: , 223 Ill.Dec. 320, 119 Ed. Law Rep. 567 Jane DOE, as Mother and Next Friend of John Doe, a Minor and Jane Doe, Individually, Plaintiffs-Appellees, v. ROCKDALE SCHOOL DISTRICT, NO. 84, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 771

679 N.E.2d 771

287 Ill.App.3d 791, 223 Ill.Dec. 320,

119 Ed. Law Rep. 567

Jane DOE, as Mother and Next Friend of John Doe, a Minor and Jane Doe, Individually, Plaintiffs-Appellees, v. ROCKDALE SCHOOL DISTRICT, NO. 84, Defendant-Appellant.

No. 3-96-0597.

Appellate Court of Illinois,

Third District.

April 1, 1997.

As Modified April 29, 1997.

[287 Ill.App.3d 792] [223 Ill.Dec. 321] E. Kent Ayers and Dinah Lennon Archambeault (argued), Spesia, Ayers, Ardaugh & Wunderlich, Joliet, for Rockdale School District No. 84, Defendant-Appellant.

David Andrew June (argued) and Steven J. Prodehl, June & Prodehl, Joliet, for Jane Doe and John Doe, Plaintiffs-Appellees.

OPINION

SLATER, Justice.

Plaintiff, Jane Doe, individually and as mother and next friend of John Doe, a minor, filed a complaint for negligence and wilful and wanton conduct against the defendant, Rockdale School District No. 84 (School District), seeking compensation for injuries allegedly sustained by John Doe when another student sexually assaulted him as he was being transported to school on the school bus. Defendant filed a motion to dismiss. The trial court denied the defendant's motion and certified the following question for appeal: whether the defendant providing transportation to students to and from special education classes out of county pursuant to contract with Crawford Bus Service, Inc. (Crawford), is operating as a common carrier for purposes of section 2-101(b) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act). 745 ILCS 10/2-101(b) (West 1992).

In her complaint, plaintiff alleged that the School District acted negligently and wilfully and wantonly in failing to supervise, to provide an aide, to keep the students separated, and to investigate the students who were transported on the school bus. Plaintiff further alleged that the transportation of special education students to out of county locations was provided by Crawford, a common carrier, pursuant to a contract with the School District.

The School District moved to dismiss those counts of plaintiff's complaint directed against it on the grounds that no agency relationship existed between it and Crawford, and that the School District was immune from suit under various sections of the Tort Immunity Act. 745 ILCS 10/1-101 et seq. (West 1992). Plaintiff conceded that the Tort Immunity Act immunized the School District from liability for negligence, but claimed that it did not immunize wilful and wanton behavior. Plaintiff later retracted this concession.

At a hearing on the defendant's motion to dismiss, the trial judge raised the issue of whether the "common carrier" exception to the Tort Immunity Act (745 ILCS 10/2- 101(b) (West 1992)) applied to a school district providing transportation to children out of county pursuant to contract. After considering supplementary briefs on this issue, the trial court denied defendant's motion to dismiss, and certified the issue for appeal.

Section 2-101 of the Tort Immunity Act (745 ILCS 10/2-101 (West 1992)) provides: "Nothing in this Act affects the liability, if any, of a local public entity or public employee, based on * * * (b) Operation as a common carrier." In other words, the Tort Immunity Act does not immunize public entities based on operation as common carriers. The Tort Immunity Act does not however, define the term "common carrier".

Longstanding 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 goods of such as choose to employ him for hire." Beatrice Creamery Co. v. Fisher, 291 Ill.App. 495, 499, 10 N.E.2d 220 (1937). See also, Transformer Corp. of America v. Hinchcliff, 279 Ill.App. 152 (1935); Illinois Highway Transportation Co. v. Hantel, 323 Ill.App. 364, 55 N.E.2d 710 (1944). 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. Hantel, 323 Ill.App. 364, 55 N.E.2d 710. Moreover, a common carrier may be liable for an unexcused refusal to carry all who apply. Meyer v. Rozran, 333 Ill.App. 301, 77 N.E.2d 454 (1948). 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. Beatrice Creamery Co., 291 Ill.App. 495, 10 N.E.2d 220; Rathbun v. Ocean Accident & Guarantee Corp., 299 Ill. 562, 132 N.E. 754 (1921); Long v. Illinois Power Co., 187 Ill.App.3d 614, 543 N.E.2d 525 (1989).

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. Long, 187 Ill.App.3d 614, 543 N.E.2d 525. 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. Meyer, 333 Ill.App. 301, 77 N.E.2d 454.

In the instant case, plaintiff alleged that Crawford was a common carrier, and that when the School District contracted with Crawford, the School District became Crawford's principal. Therefore, due to this agency relationship with a common carrier, the School District was operating as a common carrier when Crawford transported the School District's special education...