Garrett by Garrett v. Grant School Dist. No. 124

• Decision Date: 30 December 1985
• Docket Number: No. 2-84-1170,2-84-1170
• Citation: 93 Ill.Dec. 874,487 N.E.2d 699,139 Ill.App.3d 569
• Parties: , 93 Ill.Dec. 874, 29 Ed. Law Rep. 700 Deana GARRETT, a minor, by her mother and next friend, Barbara L. GARRETT, Plaintiff-Appellant, v. GRANT SCHOOL DISTRICT NO. 124, Defendant-Appellee, Chicago, Milwaukee, St. Paul and Pacific Railroad Company, Defendant.
• Court: United States Appellate Court of Illinois

Page 699

487 N.E.2d 699

139 Ill.App.3d 569, 93 Ill.Dec. 874,

29 Ed. Law Rep. 700

Deana GARRETT, a minor, by her mother and next friend Barbara L. GARRETT, Plaintiff-Appellant, v. GRANT SCHOOL DISTRICT NO. 124, Defendant-Appellee Chicago, Milwaukee, St. Paul and Pacific Railroad Company, Defendant.

No. 2-84-1170.

Appellate Court of Illinois Second District.

Dec. 30, 1985.

Baskin, Server, Berke & Weinstein, Robert A. Shipley, Chicago, for plaintiff-appellant.

Querrey, Harrow, Gulanick & Kennedy, Glen E. Amundsen, G. Scott Williams, Waukegan, for defendant-appellee.

UNVERZAGT, Justice:

Plaintiff, Deana Garrett, a minor, brought suit by her mother, Barbara L. Garrett, in the circuit court of Lake County against Grant School District No. 124 (the District) for injuries she sustained after alighting from the District's bus at Route 134 and Main Street in Long Lake, Illinois. The injury occurred when she tripped crossing the railroad right-of-way of the Chicago, Milwaukee, St. Paul and Pacific Railroad Company (the Milwaukee Road) after exiting the bus. She sustained a broken knee when she fell. Her suit filed against the Milwaukee Road in Cook County was transferred to and consolidated with her Lake County suit against the District. The District moved for summary judgment, and the trial court granted it, including in its judgment a Rule 304(a) finding. (Supreme Court Rule 304(a), as amended April 27, 1984, effective July 1, 1984.) Plaintiff appealed.

The facts presented by the pleadings and excerpts of depositions of the parties show that on November 14, 1980, plaintiff was a 14-year-old freshman at Grant Community High School in Fox Lake, Illinois. Plaintiff took a school bus home from school that day which was operated by the District. The driver stopped the bus near the intersection of Route 134 and Main Street in Long Lake, Illinois, to allow about 15 students, including plaintiff, to get off the bus and go on their way home. All of the students lived on the opposite, or north, side of the tracks. Parallel to and north of Route 134, intersecting Main Street, there was a railroad right-of-way and railroad tracks. The right-of-way and tracks were owned and maintained by the codefendant, the Milwaukee Road. There was no pedestrian sidewalk at the paved grade crossing which crossed the railroad tracks.

At the date of the accident, the District's bus stopped at the north edge of Route 134, facing west. As far as can be ascertained from the record, the bus was in a position perpendicular to and blocking Main Street, which T-intersected with Route 134 on the south side of the tracks. The plaintiff and the other students got off the bus at that point and stepped onto the north, gravelshoulder of Route 134. The place where plaintiff got off the bus was approximately 10 feet south of the railroad tracks. In plaintiff's deposition, after the students got off the bus "[i]t finished the U-turn. There is a stop sign there. And it gets back onto 134."

After she got off the bus, the plaintiff and the others walked north to the tracks and, as she attempted to cross the tracks, she fell. She caught her left foot on the top of the rail as she crossed. There was nothing unusual or defective about the rail she tripped on. There is nothing in the record identifying any defect in the rail or, if there was one, that the District knew or should have known it. At the point the plaintiff fell, she was approximately three feet west off the pavement of Main Street as it crossed the railroad tracks. She was crossing in the ungraded, unpaved area of the tracks. This was the place plaintiff crossed the right-of-way about 50% of the time. On days when there was no traffic, the plaintiff would cross on the paved portion of road. At the time of the accident, the plaintiff did not cross on the paved portion of Main Street because there were cars using the two-way pavement to cross the tracks.

Plaintiff's two-count suit filed against the District alleged in Count I that the plaintiff was a passenger on the bus owned and operated by the District; that on the date in question the operator of the bus, defendant's employee or agent, stopped the bus south of the railroad tracks; that the operator knew plaintiff and the other students had to cross the railroad tracks in order to reach their homes; that the operator knew there was no sidewalk or other suitable crossing area which permitted pedestrians to safely cross the railroad tracks; that it was the defendant's duty to exercise the highest degree of care and caution in the ownership, operation and control of its school buses in order to avoid injury to its student passengers and to provide plaintiff with a safe place to alight from the bus. Despite that duty, plaintiff alleged, defendant or its agent was guilty of one or more of the following acts or omissions:

"(a) Carelessly and negligently owned, operated, managed and maintained its school bus so that, as a direct and proximate result thereof, the Plaintiff was seriously injured.

(b) Carelessly and negligently required Plaintiff to deboard and/or alight from its school bus at a place which Defendant knew, or should have known, was unsafe and which presented a special risk of injury to Plaintiff.

(c) Carelessly and negligently required Plaintiff to deboard and/or alight from its school bus at a place which Defendant knew, or should have known, required Plaintiff to cross an unreasonably dangerous railroad crossing in order to reach a place of safety.

(d) Carelessly and negligently routed the said school bus so as to deboard Plaintiff south of the said railroad tracks.

(e) Carelessly and negligently failed to provide Plaintiff with a safe place to alight from the said school bus.

(f) Carelessly and negligently failed to deboard Plaintiff from the said school bus on the north side of the aforesaid railroad tracks."

Count II charged the defendant was guilty of wilful and wanton misconduct in that it deboarded plaintiff and other children at a place which it knew, or should have known, was unsafe and that it wilfully and wantonly chose a place of discharging passengers which was unsafe and required its passengers to cross an ungraded railroad crossing.

The suit filed by the plaintiff against the Milwaukee Road alleged in essence that the Milwaukee Road should have constructed or maintained a sidewalk for pedestrians to cross the tracks, and it failed to provide a level area suitable for safe crossing.

The District moved for summary judgment on the grounds that it did not owe any further duty to the plaintiff once she had been safely deposited off the bus and that her fall was attributable, if at all, to the intervening conduct of the codefendant's maintenance of its property. As noted, the instant appeal is taken from the circuit court's order granting that motion for summary judgment. In the order, the trial court specifically found that the District's duty to the plaintiff was discharged when she was let off the bus in a safe manner and place. The court's order further noted that the alleged defects and the maintenance of the tracks by the codefendant was an intervening cause. The court denied the Milwaukee Road's summary judgment motion, but specifically found it had no duty to construct or maintain a pedestrian crosswalk over its right-of-way. Application by plaintiff for leave to appeal from that particular portion of the court's order pursuant to Supreme Court Rule 308 was denied by this court.

The overriding issue framed by this appeal is whether summary judgment was properly granted. Specific issues raised are (1) whether defendant's conduct satisfied the duty it owed to plaintiff, and (2) whether defendant's conduct proximately caused plaintiff's injury.

Plaintiff contends the pleadings and depositions on file raised a genuine issue of material fact; i.e., whether the bus would have been able to cross the tracks, let the students off on the north side of the tracks, and then turn around and go back out onto Route 134. Such a deboarding point, plaintiff argues, would have obviated the need for the students to cross the tracks and would have satisfied the "highest degree of care" duty which the District as a common carrier owed the students, including plaintiff. Consequently, plaintiff asserts that it was error for the court to grant the District's motion for summary judgment.

The District contends, and the court so found, that it fulfilled the duty it owed plaintiff when she safely disembarked on the south side of the tracks. Further, the District contends that it owed her no duty to have dropped her off on the north side of the railroad tracks.

The District attempts to distinguish itself and the degree of duty it owed to plaintiff on the basis the bus company in the case cited by plaintiff in support of her position, Van Cleave v. Illini Coach Co. (1951), 344 Ill.App. 127, 100 N.E.2d 398, was a private business. However, the Van Cleave court did not consider whether the defendant there was a common or private carrier to be controlling, and determined that it was "the duty of the defendant to operate the bus with the highest degree of care consistent with the practical operation of the bus." (344 Ill.App. 127, 129, 100 N.E.2d 398.) In Comastro v. Village of Rosemont (1984), 122 Ill.App.3d 405, 78 Ill.Dec. 32, 461 N.E.2d 616, the court noted that a municipal corporation engaged in a nongovernmental function such as, inter alia, the operation of a public transportation system, would be held to the same standard of care as that imposed on a private party. (122 Ill.App.3d 405, 408, 78 Ill.Dec. 32, 461 N.E.2d 616.) By the same token, we believe, a school district engaged in the transportation of students by bus would likewise be held to the same standards of care as that imposed on a private party operating as a common carrier.

As noted in Comastro, a particular standard of care is imposed on those involved...