2016 IL App (2d) 150554
Ill. App. Ct.2016Background
- J.D., a minor student, alleged that her school bus driver, Peter Sanchez (employed by First Student, Inc.), sexually assaulted her on the bus between April and May 2014.
- Plaintiff sued Sanchez and First Student for battery, assault, false imprisonment, IIED, NIED, violation of the Illinois Gender Violence Act, and negligence against First Student.
- First Student moved to dismiss, arguing (1) it was not a common carrier and therefore did not owe a heightened duty, and (2) it could not be vicariously liable for Sanchez’s intentional torts because those acts were outside the scope of employment.
- The trial court denied the motion, concluding a private student-busing contractor owes the same duty as a common carrier and may be vicariously liable for employee misconduct outside the scope of employment; it certified two questions under Ill. S. Ct. R. 308.
- The appellate court accepted the interlocutory appeal and answered both certified questions affirmatively: (1) private student-busing contractors owe the common-carrier (highest) duty of care to students; and (2) such contractors may be liable for employee intentional torts outside the scope of employment because the duty is nondelegable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a private contractor transporting students owes the same elevated duty as a common carrier | Transporters of students (public or private) exercise unique control over children and thus should owe the highest duty of care | First Student: it is not a common carrier (serves only district students) and Green/Garrett do not control private contractors | Yes. Private student-busing contractors owe the common-carrier (highest) duty of care to their student passengers |
| Whether the contractor may be vicariously liable for employee intentional torts committed outside the scope of employment | Common-carrier liability historically extends to employee intentional torts outside scope; nondelegable duty supports employer liability | Employer: sexual assault is personally motivated and outside scope; Restatement and precedent disfavor imputing liability for such acts | Yes. Because the transporter owes a nondelegable duty, it may be liable for employee sexual assault on the bus even if outside the scope of employment |
Key Cases Cited
- Krywin v. Chicago Transit Authority, 238 Ill. 2d 215 (Ill. 2010) (common carrier owes passengers the highest degree of care)
- Green v. Carlinville Cmty. Unit Sch. Dist., 381 Ill. App. 3d 207 (Ill. App. 2008) (school district transporting students owes the same high duty as a common carrier and can be liable for employee intentional acts outside scope)
- Garrett v. Grant Sch. Dist. No. 124, 139 Ill. App. 3d 569 (Ill. App. 1985) (transporters of students should be held to common-carrier standard)
- Van Cleave v. Illini Coach Co., 344 Ill. App. 127 (Ill. App. 1951) (those transporting school children must exercise the highest degree of care regardless of carrier status)
- Chicago & Eastern R. Co. v. Flexman, 103 Ill. 546 (Ill. 1882) (common carrier liability can attach for employee intentional torts outside employment)
- Mueller v. Community Consol. Sch. Dist. 54, 287 Ill. App. 3d 337 (Ill. App. 1997) (distinguishes assaults occurring off the bus after transportation from those occurring during transport)