dissenting:
I respectfully dissent. I would affirm the decision of the trial court, granting summary judgment on counts I, III, V, VI, VII, and VIII.
A. Vicarious Liability — Counts I (Intentional Infliction of Emotional Distress) and III (Assault and Battery)
The majority concludes that the District, in the operation of its school bus program, was not acting as a common carrier because it did not hold itself out to serve or, in fact, serve the general public. The majority goes on, however, to create a new “common carrier” rule that would apply to school districts. One problem with that approach is that even common carriers are not vicariously liable for the intentional or criminal acts of their employees unless those acts are within the scope of employment, clearly not the case here. Common carriers, unlike other actors, have a duty to come to the aid or protection of others, but that duty is not the same as vicarious liability. The majority improperly equates the vicarious liability of employers with common-carrier liability.
Under the theory of respondeat superior, an employer can be vicariously liable for the torts of an employee, but only for those torts that are committed within the scope of employment. The employer’s vicarious liability extends even to the intentional or criminal acts of its employees when such acts are committed within the scope of employment. Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 163-64, 862 N.E.2d 985, 991 (2007). Conduct is within the scope of employment only if it is actuated, at least in part, by a purpose to serve the master. Restatement (Second) of Agency §228, at 504 (1958). Summary judgment was appropriate in Bagent where no reasonable person could conclude that an employee was acting within the scope of employment. Bagent, 224 Ill. 2d at 170-71, 862 N.E.2d at 995 (hospital employee disclosed medical information to patient’s sister in a tavern).
Common carriers have duties that others do not have. Generally speaking, Illinois law does not impose a duty to protect another from a criminal attack by a third person unless the attack is reasonably foreseeable and the parties stand in one of four “special relationships,” namely: (1) common carrier and passenger, (2) innkeeper and guest, (3) business invitor and invitee, and (4) voluntary custodian and protectee. Hernandez v. Rapid Bus Co., 267 Ill. App. 3d 519, 524, 641 N.E.2d 886, 890 (1994), citing Restatement (Second) of Torts §314A (1965). In Hernandez, a student was raped by a special-education student as she walked unescorted from a bus to the school. The First District reversed summary judgment for the bus company because the company may have been aware that some of the special-education students riding its bus with this student had propensities toward violent and criminal behavior. The common-carrier relationship did not apply in Hernandez because the student had exited the bus safely, but the court applied a similar rule that applied to voluntary undertakings. Hernandez, 267 Ill. App. 3d at 524-25, 641 N.E.2d at 890-91.
The majority cites an 1882 case, Flexman, for the proposition that an employer is vicariously liable for the intentional acts of its employees outside the scope of employment, if the employer is a common carrier. 381 Ill. App. 3d at 212-13. The employee in Flexman may have been acting within the scope of employment, helping a passenger look for his watch, when an altercation developed. Flexman, 103 Ill. at 548-49. Even intentional torts may be so reasonably connected with the employment as to be within its “scope.” W. Keeton, Prosser & Keeton on Torts §70, at 505 (5th ed. 1984). An employer will be held liable where his bus driver crowds a competitor’s bus into a ditch or assaults a trespasser to eject him from the bus. A railway ticket agent who assaults, arrests, or slanders a passenger, in the belief that he has been given a counterfeit bill for a ticket, is within the scope of his employment. But if the employee acts from purely personal motives, he is considered in the ordinary case to have departed from his employment, and the master is not liable. W. Keeton, Prosser & Keeton on Torts §70, at 506 (5th ed. 1984). Whatever the holding in Flexman, Illinois now follows the Restatement, which would not impose vicarious liability for acts outside the scope of employment. Bagent, 224 Ill. 2d at 163-65, 862 N.E.2d at 991-92.
The majority cites Garrett, which stated that a school district engaged in the transportation of students by bus would be held to the same standard of care as that imposed on a private party operating as a common carrier. Garrett, 139 Ill. App. 3d at 575, 487 N.E.2d at 702. Garrett did not, however, address the vicarious liability of a school district for the actions of its driver. Garrett instead addressed the carrier’s duty to protect passengers, despite the general rule that there is no duty to act for the protection of others, a duty which does not terminate until the passenger has had a reasonable opportunity to reach a place of safety. Garrett, 139 Ill. App. 3d at 575-78, 487 N.E.2d at 702-05; see Restatement (Second) of Torts §314A(l)(a) (1965). The complaint in Garrett was that the bus driver had dropped the student off near a railroad track, where she eventually fell. The question did not concern the actions of the bus driver but the actions of the district, which had a duty to select a discharge point that did not “ ‘needlessly expose the pupils to any serious hazards to safety exceeding those which normally attend school bus operations.’ ” Garrett, 139 Ill. App. 3d at 576, 487 N.E.2d at 703, quoting Posteher v. Pana Community Unit School District No. 8, 96 Ill. App. 3d 709, 713, 421 N.E.2d 1049, 1052 (1981).
The trial court properly entered summary judgment on counts I and III. Even assuming the District was a common carrier, the District could only be held liable for acts of its employee that were within the scope of employment. No reasonable person could conclude the acts here were within the scope of employment.
B. Direct Liability — Counts VI (Negligent Hiring) and VII (Negligent Supervision)
Apart from vicarious liability, the school district may be responsible for its own negligence if it knew or should have known of the necessity and opportunity for controlling its servant to prevent the servant from intentionally harming others. Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210, 229, 745 N.E.2d 1166, 1179 (2000), quoting Restatement (Second) of Torts §317 (1965). To establish this claim of direct negligence, plaintiffs do not have to show that the attack was committed within the scope of employment. Plaintiffs must show, however, that the employer knew or had reason to know of the need to control the servant and negligently failed to act on that information. Hills, 195 Ill. 2d at 231-32, 745 N.E.2d at 1180. “Under a theory of negligent hiring or retention, the proximate cause of the plaintiffs injury is the employer’s negligence in hiring or retaining the employee, rather than the employee’s wrongful act.” Van Horne v. Muller, 185 Ill. 2d 299, 311, 705 N.E.2d 898, 905 (1998). In a case where a kindergarten student was sexually abused by a school bus driver, a directed verdict in favor of the bus company was affirmed where there was no evidence the company knew or should have known the hiring would create a danger of harm to third persons. Giraldi v. Community Consolidated School District No. 62, 279 Ill. App. 3d 679, 692, 665 N.E.2d 332, 340 (1996) (First District).
The trial court here properly dismissed counts VI and VII because there are no allegations that the District had any knowledge that the bus driver had any propensity to commit these acts or that there was a danger of harm to students.
C. Negligence per se — Count V
Count V alleges negligence as a matter of law arising from a statutory violation. Count V alleges that the District failed to perform a criminal background investigation as required by section 34 — 18.5. However, that section does not apply to the District. The section is contained within article 34 of the School Code, which only applies to cities of over 500,000 inhabitants (105 ILCS 5/34 — 1 through 34 — 129 (West 2006)). The section that does apply to the District, section 10— 21.9(a), excepts school bus driver applicants, at least after its 1995 amendment. 105 ILCS 5/10 — 21.9(a) (West 2006). Another paragraph, section 10 — 21.9(f), was amended effective January 1, 1990, to add the following words:
“After January 1, 1990[,] the provisions of this Section shall apply to all employees of persons or firms holding contracts with any school district including, but not limited to, food service workers, school bus drivers and other transportation employees, who have direct, daily contact with the pupils of any school in such district.” Pub. Act 86 — 411, §1, eff. January 1, 1990 (1990 Ill. Laws 2549, 2552).
Section 10 — 21.9(a) was then amended, effective July 1, 1995, to add the words “except school bus driver applicants.” Pub. Act 88 — 612, §5, eff. July 1, 1995 (1995 Ill. Laws 1325, 1326).
In any event, even though there is no question there has been a breach of duty in a negligence per se action, a plaintiff must still show that the defendant’s violation of the statute proximately caused the injury. Price v. Hickory Point Bank & Trust, 362 Ill. App. 3d 1211, 1216-17, 841 N.E.2d 1084, 1089 (2006). No evidence in this case suggests that a criminal background check of the bus driver would have disclosed any information that would have placed the District on notice. See Browne v. SCR Medical Transportation Services, Inc., 356 Ill. App. 3d 642, 649, 826 N.E.2d 1030, 1036 (2005) (even if the transportation company had complied with the statute, the company would not have learned of the driver’s prior arrests); Giraldi, 279 Ill. App. 3d at 692, 665 N.E.2d at 340 (only thing which could have been known was that driver had a tendency to be late; failure to investigate not a proximate cause of sexual attack on a student).