dissenting:
I respectfully dissent.
The majority opinion acknowledges that the defendants were transporting children and owed those children the duty to operate its buses with the highest degree of care. 279 Ill. App. 3d at 692, citing Garrett v. Grant School District, 139 Ill. App. 3d 569, 487 N.E.2d 699 (1985). However, the majority "can find no basis for holding defendants to a higher degree of care” to this minor plaintiff because they were not being sued on a theory of respondeat superior. 279 Ill. App. 3d at 692.
A school district transporting students by bus is to be held to the same standards of care as are imposed on a private party operating as a common carrier. Garrett, 139 Ill. App. 3d at 574-75, 487 N.E.2d at 702. It has long been held that a carrier of passengers is obligated to use the highest standard of care in regard to its employment practices. See Chicago & Alton R.R. Co. v. Pillsbury, 123 Ill. 9, 21, 14 N.E. 22, 23 (1887). This high standard of care is imposed because the passenger must rely solely on the carrier to provide fit employees and cannot insure his or her personal safety. Pillsbury, 123 Ill. at 22, 14 N.E. at 23-24. Thus, a carrier must use reasonable care to discover and prevent danger to a passenger at all times and under all circumstances; this includes protection from foreseeable dangerous and violent conduct of fellow passengers or others. See, e.g., Pillsbury, 123 Ill. at 22, 14 N.E. at 24.
It is not the precise pattern of events that must be foreseeable; rather, it is the risk of harm or danger to the one to whom the duty is owed. Slager v. Commonwealth Edison Co., 230 Ill. App. 3d 894, 904, 595 N.E.2d 1097, 1103 (1992); see Neering v. Illinois Central R.R. Co., 383 Ill. 366, 380, 50 N.E.2d 497, 503 (1943). In a negligent hiring or supervision case, even a noncarrier employer must exercise that degree of care as a reasonably prudent person would exercise in view of the consequences that might reasonably be expected to result if an incompetent, careless, or reckless agent was employed. See Western Stone Co. v. Whalen, 151 Ill. 472, 485, 38 N.E. 241, 244 (1894); Malorney v. B&L Motor Freight, Inc., 146 Ill. App. 3d 265, 268, 496 N.E.2d 1086, 1088-89 (1986).
As the majority opinion notes, a bus driver’s permit will not issue unless the applicant has no convictions for a number of criminal offenses, including rape and deviate sexual conduct. See 625 ILCS 5/6 — 106.1 (West 1992); 279 Ill. App. 3d at 685. Our legislature foresaw the type of danger at issue in this case; the statute supports the public policy reasons for imposing the high standard of care announced in Pillsbury. Also, the reasonably foreseeable consequences of the negligent supervision are grave.
In sum, there is ample basis in the law for holding the defendants to the highest standard of care in this case. The trial court erred in refusing to allow the minor plaintiff to amend his complaint. See 735 ILCS 5/2 — 616(a) (West 1992). The trial court committed reversible error by failing to instruct the jury on the proper duty owed by the defendants. Palmer v. Mount Vernon Township High School District 201, 269 Ill. App. 3d 1056, 647 N.E.2d 1043 (1995).
The majority opinion also holds that the trial court did not err in severing Lamson from the case and excluding evidence of the factual basis for Lamson’s plea of guilty but mentally ill (GBMI) to the charge of aggravated criminal sexual assault. An action may not be severed when it prejudices a substantial right of the plaintiff. See 735 ILCS 5/2 — 1006 (West 1992). The plaintiff has a right to introduce evidence to prove its theory of the case. Sanchez v. Black Brothers Co., 98 Ill. App. 3d 264, 266, 423 N.E.2d 1309, 1311 (1981).
The gravamen of negligent supervision is that the defendant breached a duty to control a supervised person who committed a wrong against the plaintiff. See Oakley Transport, Inc. v. Zurich Insurance Co., 271 Ill. App. 3d 716, 724-25, 648 N.E.2d 1099, 1106 (1995). The negligence of the supervisor is, by definition, derivative of the wrongdoing of the supervisee. Oakley Transport, Inc., 271 Ill. App. 3d at 725, 648 N.E.2d at 1106. Thus, evidence of Lamson’s wrongdoing is relevant not only to the claim against Lamson, but also to the claim against Septran and District 62 on the elements of causation and damages. The majority’s contrary conclusion that such evidence would have only "slight relevance” as to Lamson is unsupported.
That conclusion rests in part on the majority opinion’s prior unsupported assertion that the factual basis for Lamson’s GBMI plea is not an admission by Lamson. The prosecutor’s statement was that "[i]t would be stipulated that these events occurred *** on the date and time in question, as alleged in the indictment.” Moreover, a GBMI plea admits every material fact alleged in an indictment and all elements of a charged offense. See People v. McLain, 226 Ill. App. 3d 892, 897, 589 N.E.2d 1116, 1120 (1992). Even if the prosecutor’s statement was not Lamson’s, his silence could be deemed an admission of the truth of the prosecutor’s statement which would have been admissible if he had not been severed from the case. See, e.g., Friedland v. Allis Chalmers Co. of Canada, 159 Ill. App. 3d 1, 7, 511 N.E.2d 1199, 1204 (1987); see also Mayol v. Summers, Watson & Kimpel, 223 Ill. App. 3d 794, 807, 585 N.E.2d 1176, 1184 (1992) (admission of party opponent is substantive evidence).
The majority opinion concludes that the prosecutor’s statement is hearsay as to Septran and District 62 because Lamson was not their agent when the statement was made. The majority opinion relies on Fakhoury v. Vapor Corp., 218 Ill. App. 3d 20, 578 N.E.2d 121 (1991), and Beccue v. Rockford Park District, 94 Ill. App. 2d 179, 236 N.E.2d 105 (1968), neither of which involves a guilty plea. Federal courts have held that a third-party guilty plea is admissible to prove any fact essential to the judgment. E.g., Rozier v. Ford Motor Co., 573 F.2d 1332, 1347 (5th Cir. 1978); Estate of Chlopek v. Jarmusz, 877 F. Supp. 1189, 1194 (N.D. Ill. 1995). I am persuaded that the trial court erred in barring the use of the GBMI plea to prove every material fact alleged in the indictment.
Finally, like the trial court, the majority opinion holds that it was proper to sever Lamson and exclude the prosecutor’s statement and the basis for the medical opinion on the ground that the details of the sexual assaults were more prejudicial than probative. As explained above, these facts were completely probative on the issues of causation and damages. The material facts alleged in the indictment are quite prejudicial, but not unfairly so. Moreover, it should be noted that the trial court believed this evidence was more prejudicial than probative, but permitted the unnecessary impeachment testimony of the defense attorney, despite the trial court’s statement that the latter "would be devastating testimony to the Plaintiff’s case.” The contrast in the evidentiary rulings is stark and undeniable.
A similar attitude is suggested by the majority opinion’s attempt to place at least part of the blame for the severance with plaintiff. 279 Ill. App. 3d at 688. Minor litigants are entitled to special protection by the courts; their rights are protected even from the neglect of their representative in order to do substantial justice. E.g., Kim v. Evanston Hospital, 240 Ill. App. 3d 881, 888, 608 N.E.2d 371, 376 (1992). The minor litigant in this case was not given special protection by the courts; substantial justice was not done. I cannot put an imprimatur upon these proceedings. Accordingly, I dissent.