Doe v. Sanchez

• Decision Date: 31 March 2016
• Docket Number: No. 2–15–0554.,2–15–0554.
• Citation: 402 Ill.Dec. 697,52 N.E.3d 618
• Parties: Jane DOE, as Next Best Friend of J.D., a Minor, Plaintiff–Appellee, v. Peter A. SANCHEZ, Defendant (First Student, Inc., Defendant–Appellant).
• Court: United States Appellate Court of Illinois

52 N.E.3d 618

402 Ill.Dec. 697

Jane DOE, as Next Best Friend of J.D., a Minor, Plaintiff–Appellee

v. Peter A. SANCHEZ, Defendant(First Student, Inc., Defendant–Appellant).

No. 2–15–0554.

Appellate Court of Illinois, Second District.

March 31, 2016.

Amy M. Kunzer and John W. Patton, Jr., both of Patton & Ryan LLC, Chicago, for appellant.

Nathan Reyes, of Bruning & Associates, P.C., of Crystal Lake, for appellee.

OPINION

Justice SPENCE

delivered the judgment of the court, with opinion.

¶ 1 This appeal presents two certified questions concerning what duty a private contractor owes the students it transports and whether it may be liable for the misconduct of an employee committed outside the scope of employment.

¶ 2 Plaintiff, Jane Doe, brought suit against Peter Sanchez and his employer, First Student, Inc., alleging that Sanchez inappropriately touched her daughter, J.D., a minor, during the course of his duty as J.D.'s school bus driver. First Student filed a combined motion to dismiss the counts against it. It argued, in pertinent part, that it could not be held vicariously liable for Sanchez's alleged misconduct, because the conduct was committed outside the scope of his employment. It also argued that it was not acting as a common carrier and that therefore its duty of care toward J.D. was not heightened.

¶ 3 The trial court denied First Student's motion to dismiss, holding, in pertinent part, that First Student owed J.D. a standard of care as if it were operating as a common carrier and that it could be vicariously liable for the misconduct of Sanchez, even for misconduct committed outside the scope of employment. First Student filed a motion to certify two questions for appeal pursuant to Illinois Supreme Court Rule 308

(eff. Jan. 1, 2015), and the trial court granted its motion. In short, the questions were whether First Student should be held to the same standard of care as a common carrier and whether it could be vicariously liable for the actions of its employee committed outside the scope of employment. We allowed the interlocutory appeal.

¶ 4 For the reasons herein, we answer both certified questions in the affirmative.

¶ 5 I. BACKGROUND

¶ 6 Plaintiff filed her complaint against Sanchez and First Student on July 15, 2014. The complaint alleged that Sanchez was an employee of First Student, which was hired by Prairie Hill School District (Prairie District) to provide bus transportation services for students in the district. The complaint continued that J.D. was a student in Prairie District and that, between April 14 and May 23, 2014, Sanchez touched J.D.'s genitals and buttocks without consent while she was riding on the bus that Sanchez was operating. Plaintiff alleged that the touching occurred during the course of Sanchez's duty as a bus driver and that First Student was responsible for ensuring the students' safety on the bus.

¶ 7 The complaint alleged six counts against Sanchez, for battery, assault, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, and a violation of the Illinois Gender Violence Act (740 ILCS 82/5 (West 2014)

). It alleged the same six claims against First Student (counts VII through XII) plus a claim for negligence (count XIII).

¶ 8 On August 21, 2014, First Student filed a combined motion to dismiss plaintiff's complaint under sections 2–615

and 2–619 of the Code of Civil Procedure

(Code) (735 ILCS 5/2–615

, 2–619 (West 2014)). First Student argued that sexual assault is, by its nature, personally motivated and therefore is an act outside the scope of employment. Accordingly, First Student argued, Sanchez's alleged sexual assault was outside the scope of his employment and, therefore, First Student could not be vicariously liable for it.

¶ 9 First Student also argued that it was not acting as a common carrier. It argued that the relevant test was whether it served all of the public alike. Doe v. Rockdale School District, 287 Ill.App.3d 791, 794, 223 Ill.Dec. 320, 679 N.E.2d 771 (1997)

. It continued that, because it transported only students for Prairie District, not all members of the general public, it was not acting as a common carrier. In any event, First Student contended, a common carrier is not vicariously liable for the intentional torts and criminal acts of its employees outside the scope of employment.

¶ 10 On November 24, 2014, the trial court held a hearing on First Student's combined motion to dismiss. At the hearing, the trial court was particularly concerned about whether to impose on a private carrier a standard of care normally reserved for a common carrier.

¶ 11 On January 21, 2015, the trial court issued its memorandum opinion and order on the combined motion to dismiss. In its memorandum, the trial court recognized that First Student did not meet the definition of a common carrier in Illinois. A common carrier was one that would serve all of the public alike (Illinois Highway Transportation Co. v. Hantel, 323 Ill.App. 364, 375, 55 N.E.2d 710 (1944)

), whereas a private carrier would serve only certain persons by special agreement in particular instances (Rockdale School District, 287 Ill.App.3d at 794, 223 Ill.Dec. 320, 679 N.E.2d 771 ). However, it continued to examine whether First Student owed the same high duty of care regardless. It reviewed Green v. Carlinville Community Unit School District, 381 Ill.App.3d 207, 213, 320 Ill.Dec. 307, 887 N.E.2d 451 (2008), where the court held that the school district, although not a common carrier, owed its students the same standard of care that a common carrier would.

¶ 12 According to the trial court, it “certainly makes no difference to the child whether the driver is employed by the school, or by a contractor hired by the school.” Yet, the court noted, it had to exercise caution because, while the rationale of Green appeared applicable, the facts were not directly on point. The court therefore posed two questions: (1) whether there was authority for imposing a heightened standard of care on a private provider of school bus services; and (2) if so, whether there was authority that a private employer could be vicariously liable for the criminal actions of its employee.

¶ 13 The trial court answered its first question in the affirmative, finding that under Garrett v. Grant School District No. 124, 139 Ill.App.3d 569, 93 Ill.Dec. 874, 487 N.E.2d 699 (1985)

, First Student owed J.D. a heightened standard of care. The court reasoned that the conclusion in Garrett, although “difficult to unwind,” was that all parties transporting students owed the students the same duty of care. Regardless of whether a party was a public school district or a private entity, the party owed the students the highest duty of care, the same as if it were operating as a common carrier.

¶ 14 Next, the trial court answered its second question in the affirmative, finding that First Student could be vicariously liable for Sanchez's misconduct outside the scope of his employment. It relied on Green, 381 Ill.App.3d at 212–13, 320 Ill.Dec. 307, 887 N.E.2d 451

, and Dennis v.

Pace Suburban Bus Service,

2014 IL App (4th) 132397, ¶ 18, 385 Ill.Dec. 527, 19 N.E.3d 85, to hold that, when common carrier liability is imposed, an employer may be liable for its employee's actions outside the scope of employment.

¶ 15 Nevertheless, the trial court had concerns. In particular, it noted a lack of controlling authority precisely on point with the facts of this case. It explained that, while the protection of school children is a well-recognized public policy concern, Illinois statutory law generally makes it more difficult for plaintiffs to recover in negligence cases against public schools. See 745 ILCS 10/1–101 et seq.

(West 2014). For example, the court noted, under Green, a school district may be liable for the criminal misconduct of a bus driver but not necessarily for the misconduct of a teacher or other employee who cares for the children during the school day. Finally, the court noted that, even if the common-carrier duty applies to a private entity such as First Student, vicarious liability does not necessarily follow. In other words, a heightened standard of care for conduct within the scope of employment does not necessarily equate to liability for misconduct outside the scope of employment. The court then suggested that the parties file a motion for a Rule 308 appeal.

¶ 16 On May 13, 2015, First Student filed a timely motion to certify the following two questions for Rule 308

appeal:

“(1) If a privately contracted provider of student busing services owes the same elevated duty of a common carrier which would be imposed on a school district providing the same services, then,

(2) Does this quasi-common carrier standard of care necessarily require that common carriers be held vicariously liable for their employee's intentional torts, such as sexual assaults, that are committed outside the scope of their employment, without regard to whether they have any knowledge of any such propensity?”

¶ 17 On May 15, 2015, the trial court granted First Student's motion, certifying the two questions therein verbatim. It found that its January 21, 2015, order involved questions of law as to which there were substantial grounds for difference of opinion and that an immediate appeal could materially advance the ultimate termination of the litigation.

¶ 18 II. ANALYSIS

¶ 19 Our review of certified questions on permissive interlocutory appeal is governed by Rule 308

. See Barbara's Sales, Inc. v. Intel Corp., 227 Ill.2d 45, 56–57, 316 Ill.Dec. 522, 879 N.E.2d 910 (2007). Rule 308 permits an appeal of an interlocutory order where the trial court finds that the order involved a question of law on which there are substantial grounds for difference of opinion and that an immediate appeal from the order could materially advance the ultimate termination of the litigation. Walker v. Carnival Cruise Lines, Inc., 383 Ill.App.3d 129, 133, 321...