Green v. Carlinville Community Unit School

• Decision Date: 28 March 2008
• Docket Number: No. 4-07-0297.,4-07-0297.
• Citation: 381 Ill. App.3d 207,887 N.E.2d 451
• Parties: Misty GREEN, Plaintiff-Appellant, v. CARLINVILLE COMMUNITY UNIT SCHOOL DISTRICT NO. 1, Defendant-Appellee, and Lucille Mansfield, Defendant.
• Court: United States Appellate Court of Illinois

887 N.E.2d 451

381 Ill. App.3d 207

Misty GREEN, Plaintiff-Appellant, v. CARLINVILLE COMMUNITY UNIT SCHOOL DISTRICT NO. 1, Defendant-Appellee, and Lucille Mansfield, Defendant.

No. 4-07-0297.

Appellate Court of Illinois, Fourth District.

March 28, 2008.

Justice STEIGMANN delivered the opinion of the court:

In February 2005, plaintiff, Misty Green, sued defendants Carlinville Community Unit School District No. 1 (District) and Lucille Mansfield, based on Green's allegation that Mansfield sexually abused her when Green was a minor. In July 2006, the District moved for summary judgment, and in November 2006, the trial court granted the District's motion.

Green appeals, arguing that the trial court erred by granting the District's motion for summary judgment. We affirm in part and reverse and remand in part with directions.

I. BACKGROUND

From August 1991 through May 1992, Green attended kindergarten at North Elementary, which was operated by the District. Green rode the District's school bus to and from school. In September 1991, Green told her mother that Mansfield, a school bus driver employed by the District, had sexually molested her. In May 1992, Mansfield was convicted of three counts of child abuse and sentenced to four years in prison.

In September 1992, Green's parents, along with six other families, collectively filed a complaint in federal district court against the District (case No. 92-3238). Their complaint alleged that over the course of several months, Mansfield sexually abused and assaulted their children. The District filed a motion to dismiss, arguing in part that it was not liable for the intentional torts of Mansfield because the District was not a common carrier. In July 1993, the federal court denied the District's motion upon determining that Illinois courts had previously held that school districts that transport children by bus must be held to the same standard of care as common carriers. Hammann v. Carlinville Community Unit School District No. 1, No. 92-3238 (C.D.Ill. July 8, 1993). However, prior to trial, Green's parents voluntarily withdrew their complaint, and the federal court dismissed their case without prejudice. Hammann v. Carlinville Community Unit School District No. 1, No. 92-3238 (C.D. Ill. April 8, 1994).

In February 2005, Green filed a complaint against the District and Mansfield. Green alleged that the District (1) engaged in intentional infliction of emotional distress (count I), (2) committed assault and battery (count III), (3) was negligent per se (count V), (4) negligently hired Mansfield (count VI), (5) engaged in negligent supervision (count VII), and (6) was a common carrier (count VIII). All of the counts against the District were primarily premised on count VIII's allegation that the District was a common carrier and, thus, "had a nondel[e]gable duty of care towards its passengers, with such duty to retain direct and primary responsibility for operating the bus with the highest degree of care." However, during the course of the trial court proceedings, Green also argued that the District owed its student bus passengers the highest degree of care, regardless of whether it was a common carrier.

In April 2005, the District filed a motion to dismiss Green's complaint arguing, in part that (1) it was not a common carrier and (2) the complaint placed a greater duty on the District than that imposed by law.

Following an August 2005 hearing, the trial court denied the District's motion upon determining that the 1992 federal court ruling denying the District's motion to dismiss should be given great weight since Green was a party to the federal action at the time of the federal court's ruling. The court also found that the District's standard of care, rather than its status as a common carrier, governed the court's review of the complaint.

In December 2005, the case was reassigned to another trial judge. In July 2006, prior to any District representative being deposed, the District filed a motion for summary judgment, arguing that (1) the District was not operating as a common carrier; (2) Mansfield was not acting within the scope of her employment when the alleged conduct occurred; (3) the statute mandating that school districts perform criminal-background checks before hiring an employee (105 ILCS 5/34-18.5 (West 2006)), which Green relied on in count V of her complaint, was not in effect when the District hired Mansfield; (4) the District had immunity over its hiring decisions, pursuant to section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-201 (West 2006)); and (5) no factual support existed that the District negligently supervised Mansfield when she was acting within the scope of her employment. The District's affidavit in support of its motion stated that the purpose of the District's buses was to transport registered District students to and from school and school-related activities.

In November 2006, the trial court granted the District's motion for summary judgment. In so doing, the court determined that (1) each of Green's counts against the District was premised on the allegation that the District was a common carrier, which imposes a heightened duty of care, (2) the District was not a common carrier, and (3) Green's negligence per se allegations against the District failed because the statute Green relied on was not in effect when the District hired Mansfield. The court later found that no just reason existed to delay either enforcement or appeal of its ruling (210 Ill.2d R. 304(a)).

This appeal followed.

II. ANALYSIS

A. Standard of Review

We review de novo a trial court's decision to grant a motion for summary judgment. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill.2d 278, 291, 246 Ill.Dec. 654, 730 N.E.2d 1119, 1127 (2000). A party is entitled to summary judgment if the pleadings, depositions, and admissions on file, together with any affidavits, show that no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law (735 ILCS 5/2-1005 (West 2006)).

B. The Trial Court's Grant of Summary Judgment as to Counts I, III, and VII

Green first argues that the trial court erred by granting summary judgment as to count I (intentional infliction of emotional distress), count III (assault and battery), and count VII (negligent supervision). Specifically, she contends that (1) the court erred by determining that the District was not acting as a common carrier, which imposes a heightened duty of care; and (2) even if the District was not acting as a common carrier, it should be held to the same standard as a common carrier. We agree with Green's second contention.

1. The Trial Court's Determination That the District Was Not Acting as a Common Carrier

In Doe v. Rockdale School District No. 84, 287 Ill.App.3d 791, 793-94, 223 Ill.Dec. 320, 679 N.E.2d 771, 773 (1997), the Third District discussed the distinction between common and private carriers, as follows:

"Long-standing 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 the goods of such as choose to employ him for hire.' [Citations.] 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.' [Citation.] Moreover, a common carrier may be liable for an unexcused refusal to carry all who apply. [Citation.] 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. [Citations.]

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. [Citation.] 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."

In Doe, the plaintiff sued the Rockdale School District, alleging that another student sexually assaulted her son on a school bus while traveling to school. After denying the Rockdale School District's motion to dismiss, the trial court presented the following certified question to the appellate court: "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." Doe, 287 Ill.App.3d at 793, 223 Ill.Dec. 320, 679 N.E.2d at 772.

The Third District concluded that the contract between the Rockdale School District and Crawford did not provide for the transportation of any additional passengers or cargo by Crawford other than the school district's special-education students. Accordingly, the court stated the following:

"Given the total absence of any allegation that Crawford either held itself out to, or in fact did, serve the general public or any members thereof except those students it contracted to carry, we are compelled to agree that Crawford, and by extension any principal of Crawford [i.e., Rockdale], was acting as a private carrier [and not a common carrier] when the alleged injury occurred." Doe, 287 Ill.App.3d at 795, 223 Ill.Dec. 320, 679 N.E.2d at 774.

In this case, Green did not allege that the District (1) advertised its bus services to members of the general public or (2) transported all members of the general public in a indiscriminate manner. Further, according to the District's unrebutted affidavit, the District only transported its students to and from school and school-related activities. Thus, we conclude that the trial court did not err by determining that the District was not acting as a common carrier.

2. Green's Claim That the District Should Be Held to the Same Standard of Care as a Common Carrier

Besides not being a...