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Posteher v. Pana Community Unit Sch. Dist.





APPEAL from the Circuit Court of Christian County; the Hon. DONALD BEAN, Judge, presiding.


On March 30, 1979, petitioners, Philip and Joyce Posteher, individually and as next friends of their children, Jean and Tara Posteher, filed a petition for a writ of mandamus and for a declaratory judgment in the circuit court of Christian County seeking a bus route other than that adopted by respondent school district. The basis for plaintiffs' action, as stated in their complaint, is that the plaintiffs' children are compelled to walk an unsafe route in order to board the bus at the designated pickup point, that plaintiffs' children could be required to walk a distance greater than the majority of bus-riding children in order to board the bus and that the route selected by the defendant Board is not the safest available for plaintiffs' children.

An evidentiary hearing on the petition was held on March 17, 1980. Following the hearing the court dismissed the petition and entered judgment for respondent. Petitioners appeal.

At the evidentiary hearing it was undisputed that respondent had complied with its statutory duty to provide petitioners' children with free bus transportation to the parochial school they attended (Ill. Rev. Stat. 1979, ch. 122, pars. 29-3 and 29-4). It is petitioners' position on appeal, however, that the duty of the defendant Board extends beyond a bare compliance with the statute. They maintain that respondent has an inherent duty to provide the safest possible route and that respondent has failed in that duty. Petitioners have not cited, nor have we found, any authority which imposes such a standard on a school board in its selection of bus routes.

The locality of the dispute involves Route 51 to the east and north of Pana in Christian County. As it is concerned in this case Route 51 extends in a northerly direction from Route 16 in Christian County. In the northeast quadrant of the intersection made by these two highways is the Rosebud Motel and Cafe. To the north approximately one mile is an east-west county road which crosses Route 51. Petitioners' home fronts upon that county road 173 feet east of Route 51, and its driveway affords access to the county road and not Route 51. North on Route 51, approximately one-fourth of a mile from the intersection of the county road, a railroad track crosses the highway. The area is described as somewhat hilly. There are hills on Route 51 both to the north and to the south of the intersection of the county road. One traveling north on Route 51 from Route 16 would crest a hill, descend to the valley and start upgrade on the next hill before coming to the intersection of the county road. If one travels east from Route 51 to petitioners' residence he must also go upgrade. The driveway for petitioners' home is at the crest of this hill.

The route traveled by the bus that picks up the petitioners' children, as finally selected by the respondent District, approaches Route 51 from the west upon the county road. Upon reaching Route 51 the bus turns to the right (south) and travels to the Rosebud Motel for a 180-degree turnaround and then proceeds north on Route 51. The bus stops and picks up petitioner's children on Route 51, where it intersects with the county road. After picking up the petitioners' children, the bus proceeds north on Route 51 to complete its route.

Respondent presented evidence to show that it had considered several alternatives for picking up petitioners' children and that safety problems existed with each potential route. Transportation supervisor, Donald Rakers, testified that he believed the school bus should not pick up petitioners' children at their home because to cross Route 51 while traveling from west to east at that point would be unsafe since the bus would be required to stop at Route 51 and necessarily would present a slow-moving broadside target for fast-moving automobiles coming from both directions on Route 51. Rakers acknowledged, however, that in past years the bus had passed in front of petitioners' home.

Petitioners had been tendered an alternate route by the defendant Board in which the children would be required to walk east along the county road approximately one mile to board the bus at Kater Corner. Although this route would have been in compliance with the statute, for obvious reasons it was unsatisfactory to petitioners. The objections of petitioners to the bus route and pickup selected by the Board for their children are addressed to the Route 51 pickup as we have described it. Petitioners consider a pickup of children while the bus is stopped on Route 51 dangerous because of the speed at which autos and trucks travel upon that highway. As described by petitioner Philip Posteher, there are 300 to 400 feet of visibility to the bus pickup as northbound cars crest the hill to the south, with approximately the same visibility to the bus pickup as southbound cars crest the hill to the north.

The position of petitioners seems to be that the safest and most feasible route for them would be one in which the bus travels from west to east along the county road, crosses Route 51 and picks up petitioners' children at their driveway.

The petition for mandamus alleged that the bus route and pickup point selected by the District for petitioners' children were unsafe and hazardous. To give consequence to the factual assertion, petitioners' brief asserts that the respondent-District has the duty to provide the safest bus route and pickup point available.

The question of the duty owed by a school district to its bus-riding students in the selection of bus routes and pickup points appears to be one of first impression in Illinois. If the duty is not so extensive as that for which petitioners contend, then is there any other duty? If so, what is its source and what is its extent?

When we speak of "duty," our use is synonymous with the term "legal duty" and denotes that which the law requires to be done or forborne to a determinate person or to the public at large and is correlative to a right vested in such determinate person or in the public. People v. McGreal (1971), 4 Ill. App.3d 312, 278 N.E.2d 504; Pennsylvania Co. v. Frana (1883), 13 Ill. App. 91; 28 C.J.S. Duty (1941).

Sections 29-3 and 29-4 of the School Code (Ill. Rev. Stat. 1979, ch. 122, pars. 29-3 and 29-4) impose upon school districts a duty to transport pupils residing 1 1/2 miles or more from the attendance center to which they are assigned, unless public transportation is available. Transportation is also required to be furnished to pupils residing less than 1 1/2 miles from their attendance center if walking constitutes a serious hazard to the safety of the pupil. The statutes say nothing with regard to the selection of bus routes or pickup points or the standards which are to be applied in the bus route selection process. The duty imposed by the statute, then, does not extend beyond that which it prescribes, and it is obvious and conceded that the respondent District has complied with the duty imposed by the statutes.

However, the duty the petitioners ask this court to declare goes beyond the requirements of the statute. It is obvious that a school district or its officers cannot select bus routes and pickup points with impunity, they cannot act arbitrarily or capriciously, they cannot act with disregard for the safety, comfort and well-being of their pupils. More is required by law. After consideration of the matter we must agree with petitioners that a duty reaching beyond compliance with the bare statutory requirements does attend the selection of bus routes and pickup points. That is to say, the law does impose a duty upon school districts, their officials and employees, in ...

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