NO. 5-95-0918
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
THERESA THOMAS, Individually and as ) Appeal from the
Next Friend and Mother of LATOSHA ) Circuit Court of
FRANKLIN, a/k/a LATOSHA THOMAS, a ) St. Clair County.
minor child, )
)
Plaintiff-Appellee, )
v. ) No. 90-L-1328
)
DERRICK GARNER, ) Honorable
) Milton S. Wharton,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
PRESIDING JUSTICE HOPKINS delivered the opinion of the court:
This case is on appeal pursuant to Supreme Court Rule 308.
155 Ill. 2d R. 308. On November 27, 1995, the trial court granted
defendant's oral motion for interlocutory appeal, finding, "[T]here
are questions of law as to which there [are] substantial grounds
for difference of opinion and *** resolution of two issues will
materially advance the litigation." The trial court certified the
following questions for appeal:
"1. Does the circuit court have jurisdiction of an
action against a state-employed bus driver for alleged
violation of a state statute requiring a school bus driver to
discharge passengers on a four-lane highway only at a place
where their residences are to the right of the highway,
pursuant to [section 11-1415 of the Illinois Vehicle Code (625
ILCS 5/11-1415 (West 1994))]?
2. Does the driver of a school bus owe a duty of care to
a plaintiff-pedestrian where the plaintiff-pedestrian is
struck by an automobile while crossing the street to pick up
a child passenger where the plaintiff-pedestrian alleges that
the bus driver negligently placed his passenger in a position
of peril, necessitating rescue by the plaintiff-pedestrian?"
On January 10, 1996, this court granted defendant's application for
leave to appeal from the above-certified questions.
A. PROCEDURAL HISTORY
On December 13, 1990, plaintiff, Theresa Thomas (Theresa),
individually and as the next friend and mother of Latosha Franklin,
a/k/a Latosha Thomas (Latosha), filed a one-count complaint against
defendant. The relevant allegations of plaintiff's complaint are
as follows. Latosha is a minor child, born November 23, 1979.
Theresa is her mother. Defendant was "the operator of a certain
school bus" and was charged with the responsibility of transporting
Joseph Franklin (Joseph), the younger brother of Latosha, "to and
from his residence and school facilities." On or about October 31,
1989, when defendant was transporting Joseph back to his residence,
Latosha "was struck while crossing the street as a direct and
proximate result of the negligent acts or omissions of the
Defendant."
In her complaint, Theresa alleged that defendant was negligent
in failing to exercise ordinary care, by permitting Joseph "to
alight from the bus across the street from his residence" and in
failing to transport Joseph to "a place from which he could have
walked to his home without crossing the street," thereby placing
him "in a position of peril that necessitated rescue by Latosha
Franklin." Plaintiff alleged that defendant "permitted or was
going to permit Joseph Franklin to leave the bus unassisted when he
knew or should have known that such a procedure would be likely to
result in an injury to Joseph Franklin and further that such a
procedure would necessitate the rescue of Joseph Franklin by such
other individuals as the Plaintiff."
On May 22, 1995, defendant filed a motion for summary judgment
on the grounds, inter alia, that defendant owed no duty to
plaintiff's child, who was not a bus passenger, and that it was not
reasonably foreseeable that a nonpassenger would run across the
street as the bus was stopped to drop off a passenger. On October
26, 1995, the trial court denied defendant's motion for summary
judgment.
In November 1995, defendant filed a motion to dismiss for want
of jurisdiction, on the ground that the doctrine of sovereign
immunity barred this suit against defendant in the circuit court
and thus the court of claims had exclusive jurisdiction. On
November 27, 1995, the trial court denied defendant's motion to
dismiss and certified the above questions for interlocutory appeal.
B. ANALYSIS
1. JURISDICTION
We now turn to the first certified question, whether the
circuit court is vested with jurisdiction of plaintiff's claim.
Defendant argues that this lawsuit is only nominally against him,
and that the real party in interest is the State of Illinois.
Where a lawsuit is nominally against a State employee, but where a
judgment in plaintiff's favor could operate to control the actions
of the State or subject it to liability, then the action is
regarded as against the State and must be brought in the court of
claims. Currie v. Lao, 148 Ill. 2d 151, 158 (1992); 705 ILCS 505/8
(West 1994). The determination of whether a case is against the
employee as an individual or against the State depends upon the
issues involved and the relief sought. Currie, 148 Ill. 2d at 158;
Healy v. Vaupel, 133 Ill. 2d 295 (1990).
Defendant argues that a plaintiff cannot evade the exclusive
jurisdiction of the court of claims by suing the employee when his
real claim is against the State itself. As a general rule,
defendant is correct. Healy, 133 Ill. 2d at 308. However, it is
equally true that a State employee such as defendant cannot evade
liability and "is not immunized by sovereign immunity for his own
acts of negligence merely because he was acting within the scope of
his employment." Currie, 148 Ill. 2d at 158.
"The issue of when a State employee's on-the-job negligence is
immunized has been the focus of numerous divergent, and
sometimes contradictory, approaches in the case law. After
careful study of these approaches, we conclude that the proper
inquiry is to analyze the source of the duty the employee is
charged with breaching in committing the allegedly negligent
act. Where the charged act of negligence arose out of the
State employee's breach of a duty that is imposed on him
solely by virtue of his State employment, sovereign immunity
will bar maintenance of the action in circuit court. [Cita-
tions.] Conversely, where the employee is charged with
breaching a duty imposed on him independently of his State
employment, sovereign immunity will not attach and a negli-
gence claim may be maintained against him in circuit court.
[Citations.] In other words, where an employee of the State,
although acting within the scope of his employment, is charged
with breaching a duty that arose independently of his State
employment, a suit against him will not be shielded by
sovereign immunity." (Emphasis added.) Currie, 148 Ill. 2d
at 159.
In the first question certified to this court, we are asked to
presume that defendant is employed by the State and that he is
alleged to have violated "a statute requiring school bus drivers to
discharge their passengers on a four-lane highway only at a place
where their residences are to the right of the highway." We find
that the duty defendant allegedly breached is a duty that every
school bus driver owes to his minor passengers.
The duty alleged as breached is not unique to defendant's
State employment but is independent of that employment. "School
bus drivers are required to transport children safely between the
school and home[.]" People v. Davis, 88 Ill. App. 3d 728, 732
(1980). As a general rule, bus drivers, whether they are employed
by the State, a local school district, a private school, or a
private company, are under a duty to operate their buses "in a safe
and reasonable manner to protect the safety of the children on the
bus as well as the general public on the road." Board of Education
of School District U-46 v. Illinois Educational Labor Relations
Board, 216 Ill. App. 3d 990 (1991).
The statute defendant is alleged to have breached is part of
the Illinois Vehicle Code (the Vehicle Code). 625 ILCS 5/1-100 et
seq. (West 1992). The statute regulates the manner in which school
buses are allowed to stop in order to load and discharge passen-
gers. 625 ILCS 5/11-1415 (West 1992). The Vehicle Code defines a
school bus as follows:
"every motor vehicle *** owned or operated by or for any of
the following entities for the transportation of persons
regularly enrolled as students in grade 12 or below in
connection with any activity of such entity:
Any public or private primary or secondary school;
Any primary or secondary school operated by a religious
institution; or
Any public, private or religious nursery school." 625
ILCS 5/1-182 (West 1992).
Defendant, who is employed by the State of Illinois, is
alleged to have breached a duty imposed upon him under the statutes
of this State, a duty that applies to all school bus drivers.
Since a school bus driver is by statutory definition one who drives
a school bus for any public, private, or religious preschool or
grade school, we fail to see how defendant's employment with the
State operates to insulate him from liability for an alleged
violation of a statute that applies to all school bus drivers,
regardless of who employs them. Thus, under the source-of-duty
rule as defined in Currie, the defendant in the case at bar,
although acting within the scope of his employment at the time of
Latosha's accident, is charged with breaching a duty that arose
independently of his State employment, and he is not shielded by
sovereign immunity from the jurisdiction of the circuit court.
In addition to the rule set forth in Currie regarding the
source of the duty, the courts have developed a three-part test to
use in determining whether a case must be brought in the court of
claims. The test for determining when an action is against the
State and must be brought in the court of claims has been stated as
follows:
"[W]hen `there are (1) no allegations that an agent or
employee of the State acted beyond the scope of his authority
through wrongful acts; (2) the duty alleged to have been
breached was not owed to the public generally independent of
the fact of State employment; and (3) where the complained-of
actions involve matters ordinarily within that employee's
normal and official functions of the State, then the cause of
action is only nominally against the employee.'" Healy, 133
Ill. 2d at 309, quoting from Robb v. Sutton, 147 Ill. App. 3d
710, 716 (1986).
We interpret the test as allowing the case to be heard in the
circuit court if any of the three conditions are not met, rather
than requiring dismissal for want of jurisdiction if one of the
conditions is met. Healy, 133 Ill. 2d at 309; Janes v. Albergo,
254 Ill. App. 3d 951, 958 (1993).
Under the three-part test adopted in Healy, we find that the
court of claims does not have exclusive jurisdiction of this
lawsuit. As we have previously stated, the duty that defendant is
alleged to have breached is one owed to the public generally,
independent of defendant's employment with the State. Therefore,
we do not find that the three-part test set forth in Healy requires
this case to be tried exclusively in the court of claims.
Our holding that the circuit court has jurisdiction to decide
plaintiff's claim comports with the rationale underlying the
extension of sovereign immunity to a limited group of State
employees. "The rationale behind extending the immunity to State
employees in certain situations is that a suit against that
employee could operate to control the action of the State, thereby
allowing the State's immunity to be circumvented." (Emphasis in
original.) Currie, 148 Ill. 2d at 159.
Defendant argues that a judgment in favor of plaintiff will
operate to control the actions of the State because State law
currently specifies the procedure a school bus driver must follow
in discharging his passengers and thus a judgment in plaintiff's
favor would operate to control the State in establishing these
procedures. We disagree. Any judgment plaintiff succeeds in
obtaining against defendant will apply only to defendant's actions,
not other State employees and not the State as an entity itself.
The rules as set forth in the Vehicle Code will remain the same.
If we were to accept defendant's argument, we would have to grant
sovereign immunity to every State employee charged with a violation
of a State statute, an absurd result that the law does not permit.
Currie, 148 Ill. 2d 151.
Defendant makes several additional arguments that are beyond
the scope of either certified question. When deciding a case such
as this under Rule 308, the court of review will not consider
issues outside the scope of the certified question. Bachman v.
Sharon & Lo's Place, Inc., 185 Ill. App. 3d 40 (1989); Koch v.
Spalding, 174 Ill. App. 3d 692 (1988). While defendant's arguments
may have some bearing on the ultimate outcome of this case, they do
not convince us that the circuit court lacks jurisdiction to
consider this case.
For all of these reasons, we answer the first certified
question affirmatively.
2. RESCUE DOCTRINE
Under the second certified question, we are asked to consider
whether the driver of a school bus owes a plaintiff-pedestrian a
duty of care under the rescue doctrine. We answer this question
affirmatively for two reasons: We are bound by the procedural
history of the case and by the terms of the certified question
itself.
"A rescuer is someone who voluntarily attempts to save
the life or secure the safety of another who is in a position
of peril. [Citation.] Often, when a rescuer comes to the aid
of another, the rescuer knowingly subjects himself to imminent
peril. Because of this and because of the public policy
interests in promoting rescue, the rescue doctrine was long
ago recognized and established. The rescue doctrine arises
when a plaintiff brings an action based on negligence against
a defendant whose negligence has placed a third party in a
position of peril. If the plaintiff is injured in the attempt
to rescue that third party, then he is allowed to negate a
presumption that his intentional act of rescue is the super-
seding cause of his injuries, thereby allowing him to prove
that defendant's negligence is the proximate cause of his
injuries." Seibutis v. Smith, 83 Ill. App. 3d 1010, 1015-16
(1980).
Thus, the second certified question must be answered affirma-
tively under the case law of Illinois. Although we find no case
law specifically applying the rescue doctrine to a plaintiff-
pedestrian and a defendant-school bus driver, we do not find
anything about this factual scenario that prevents the application
of the rescue doctrine as a matter of law.
Finally, we note that defendant conceded in oral argument
that, as worded, the second certified question requires an
affirmative answer unless this court will review the underlying
facts of the case. However, we have already determined that we are
bound by both the procedural history of the case and the terms of
the certified question. Therefore, we decline defendant's
invitation to review the facts to determine whether Latosha was
entitled to rescue Joseph and whether defendant's negligence was
the proximate cause of Latosha's injuries.
C. CONCLUSION
For all of the reasons stated, we answer both certified
questions in the affirmative and remand the case to the trial court
for further proceedings consistent with this opinion.
Certified questions answered; cause remanded.
CHAPMAN, J., and GOLDENHERSH, J., concur.
NO. 5-95-0918
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
THERESA THOMAS, Individually and as ) Appeal from the
Next Friend and Mother of LATOSHA ) Circuit Court of
FRANKLIN, a/k/a LATOSHA THOMAS, a ) St. Clair County.
minor child, )
)
Plaintiff-Appellee, )
v. ) No. 90-L-1328
)
DERRICK GARNER, ) Honorable
) Milton S. Wharton,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________
Opinion Filed: October 23, 1996
___________________________________________________________________________
Justices: Honorable Terrence J. Hopkins, P.J.
Honorable Charles W. Chapman, J., and
Honorable Richard P. Goldenhersh, J.,
Concur
___________________________________________________________________________
Attorneys James E. Ryan, Attorney General, State of Illinois,
for Barbara A. Preiner, Solicitor General,
Appellant A. Benjamin Goldgar, Assistant Attorney General,
100 West Randolph Street, 12th Floor, Chicago, IL 60601
___________________________________________________________________________
Attorneys John Malec, Martin and Malec, 1007 Olive Street, 5th Floor,
for St. Louis, MO 63101
Appellee
___________________________________________________________________________