Appeal from the Circuit Court of Lake County; the Hon. Fred
Geiger, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Plaintiff, Deana Garrett, a minor, brought suit by her mother, Barbara L. Garrett, in the circuit court of Lake County against Grant School District No. 124 (the district) for injuries she sustained after alighting from the district's bus at Route 134 and Main Street in Long Lake. The injury occurred when she tripped crossing the railroad right-of-way of the Chicago, Milwaukee, St. Paul and Pacific Railroad Company (the Milwaukee Road) after exiting the bus. She sustained a broken knee when she fell. Her suit filed against the Milwaukee Road in Cook County was transferred to and consolidated with her Lake County suit against the district. The district moved for summary judgment, and the trial court granted it, including in its judgment a Rule 304(a) finding. (Supreme Court Rule 304(a), as amended April 27, 1984, effective July 1, 1984.) Plaintiff appealed.
The facts presented by the pleadings and excerpts of depositions of the parties show that on November 14, 1980, plaintiff was a 14-year-old freshman at Grant Community High School in Fox Lake. Plaintiff took a school bus home from school that day which was operated by the district. The driver stopped the bus near the intersection of Route 134 and Main Street in Long Lake to allow about 15 students, including plaintiff, to get off the bus and go on their way home. All of the students lived on the opposite, or north, side of the tracks. Parallel to and north of Route 134, intersecting Main Street, there was a railroad right-of-way and railroad tracks. The right-of-way and tracks were owned and maintained by the co-defendant, the Milwaukee Road. There was no pedestrian sidewalk at the paved grade crossing which crossed the railroad tracks.
On the date of the accident, the district's bus stopped at the north edge of Route 134, facing west. As far as can be ascertained from the record, the bus was in a position perpendicular to and blocking Main Street, which T-intersected with Route 134 on the south side of the tracks. The plaintiff and the other students got off the bus at that point and stepped onto the north, gravel shoulder of Route 134. The place where plaintiff got off the bus was approximately 10 feet south of the railroad tracks. In plaintiff's deposition, after the students got off the bus "[i]t finished the U-turn. There is a stop sign there. And it gets back onto 134."
After she got off the bus, the plaintiff and the others walked north to the tracks and, as she attempted to cross the tracks, she fell. She caught her left foot on the top of the rail as she crossed. There was nothing unusual or defective about the rail she tripped on. There is nothing in the record identifying any defect in the rail or, if there was one, that the district knew or should have known it. At the point the plaintiff fell, she was approximately three feet west of the pavement of Main Street as it crossed the railroad tracks. She was crossing in the ungraded, unpaved area of the tracks. This was the place plaintiff crossed the right-of-way about 50% of the time. On days when there was no traffic, the plaintiff would cross on the paved portion of the road. At the time of the accident, the plaintiff did not cross on the paved portion of Main Street because there were cars using the two-way pavement to cross the tracks.
Plaintiff's two-count suit filed against the district alleged in count I that the plaintiff was a passenger on the bus owned and operated by the district; that on the date in question the operator of the bus, defendant's employee or agent, stopped the bus south of the railroad tracks; that the operator knew plaintiff and the other students had to cross the railroad tracks in order to reach their homes; that the operator knew there was no sidewalk or other suitable crossing area which permitted pedestrians to safely cross the railroad tracks; that it was the defendant's duty to exercise the highest degree of care and caution in the ownership, operation and control of its school buses in order to avoid injury to its student passengers and to provide plaintiff with a safe place to alight from the bus. Despite that duty, plaintiff alleged, defendant or its agent was guilty of one or more of the following acts or omissions:
"(a) Carelessly and negligently owned, operated, managed and maintained its school bus so that, as a direct and proximate result thereof, the Plaintiff was seriously injured.
(b) Carelessly and negligently required Plaintiff to deboard and/or alight from its school bus at a place which Defendant knew, or should have known, was unsafe and which presented a special risk of injury to Plaintiff.
(c) Carelessly and negligently required Plaintiff to deboard and/or alight from its school bus at a place which Defendant knew, or should have known, required Plaintiff to cross an unreasonably dangerous railroad crossing in order to reach a place of safety.
(d) Carelessly and negligently routed the said school bus so as to deboard Plaintiff south of the said railroad tracks.
(e) Carelessly and negligently failed to provide Plaintiff with a safe place to alight from the said school bus.
(f) Carelessly and negligently failed to deboard Plaintiff from the said school bus on the north side of the aforesaid railroad tracks."
Count II charged the defendant was guilty of wilful and wanton misconduct in that it deboarded plaintiff and other children at a place which it knew, or should have known, was unsafe and that it wilfully and wantonly chose a place of discharging passengers which was unsafe and required its passengers to cross an ungraded railroad crossing.
The suit filed by the plaintiff against the Milwaukee Road alleged in essence that the Milwaukee Road should have constructed or maintained a sidewalk for pedestrians to cross the tracks, and it failed to provide a level area suitable for safe crossing.
The district moved for summary judgment on the grounds that it did not owe any further duty to the plaintiff once she had been safely deposited off the bus and that her fall was attributable, if at all, to the intervening conduct of the co-defendant's maintenance of its property. As noted, the instant appeal is taken from the circuit court's order granting that motion for summary judgment. In the order, the trial court specifically found that the district's duty to the plaintiff was discharged when she was let off the bus in a safe manner and place. The court's order further noted that the alleged defects and the maintenance of the tracks by the co-defendant was an intervening cause. The court denied the Milwaukee Road's summary judgment motion, but specifically found it had no duty to construct or ...