No. 3--96--0597
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
JANE DOE, as Mother and ) Appeal from the Circuit Court
Next Friend of JOHN DOE, ) of the 12th Judicial Circuit,
a Minor and JANE DOE, ) Will County, Illinois,
Individually, )
)
Plaintiffs-Appellees, )
)
v. ) No. 94--L--11310
)
ROCKDALE SCHOOL DISTRICT, )
NO. 84, ) Honorable
) Martin Rudman,
Defendant-Appellant, ) Judge, Presiding.
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OPINION
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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; 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
students. It is important to note that the precise question
before us is not whether Crawford was a common carrier, but
whether the School District as Crawford's alleged principal, was
operating as a common carrier in rendering the service during the
course of which the plaintiff's child was allegedly injured. See
Rathbun, 299 Ill. 562, 132 N.E. 754.
Under the terms of the agreement between the School District
and Crawford, Crawford agreed to transport the School District's
special education students at an agreed upon rate and for an
agreed upon period of time. The contract did not provide for the
transportation of any additional passengers or cargo. It is not
alleged that other passengers or cargo were in fact transported
by the defendant or Crawford. Plaintiff made no allegation that
either Crawford or the School District held itself out to the
public as available to transport all applicants who might apply
for transportation. The allegation is merely that Crawford was a
common carrier, and as agent of the School District did transport
special education students to and from SMA therapeutic school and
their homes.
Based on these facts, the School District argues that
neither it nor its alleged agent was operating as a common
carrier while transporting John Doe to and from school. The
defendant argues that the instant case is closely analogous to
Hantel, 323 Ill. App. 364, 55 N.E.2d 710, and that under the
facts herein Crawford was operating as a private carrier. In
Hantel, the defendant transported a group of Caterpillar
employees between various pickup points and the Caterpillar
plant. The bus service was confined to individuals with whom
specific arrangements had been made. Defendant did not advertise
the bus service to the general public, nor transport
indiscriminately all members of the general public. Based on
these findings, the Hantel court determined that in operating
this bus service, the defendant was acting as a private carrier.
Similarly, in the instant case, there is no allegation that
either Crawford or the School District advertised its service to
the general public, nor that either transported indiscriminately
all members of the general public who applied. Rather, by
specific agreement, Crawford transported only special education
students between home and school. Crawford, like the defendant
in Hantel, provided a specific service to a specific group of
people, namely the School District's special education students.
Therefore, defendant concludes that Crawford, and by extension
its alleged principal, the School District, were acting as
private carriers.
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, was acting as a private
carrier when the alleged injury occurred.
We find that the School District was not operating as a
common carrier for the purposes of the "common carrier" exception
to the Tort Immunity Act.
Certified question answered.
SLATER, J., with LYTTON, P.J., and HOLDRIDGE, J.,
concurring.