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10/06/94 ROSALINDA HERNANDEZ v. RAPID BUS COMPANY

October 6, 1994

ROSALINDA HERNANDEZ, INDIVIDUALLY AND AS MOTHER OF B.H., A MINOR, PLAINTIFF-APPELLANT,
v.
RAPID BUS COMPANY, A CORPORATION, DEFENDANT-APPELLEE, AND CHICAGO BOARD OF EDUCATION AND STEVEN HOLLYWOOD A/K/A STEVEN HOLCOMB, DEFENDANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JACQUELINE P. COX, JUDGE PRESIDING.

Hoffman, Johnson, Cahill

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Rosalinda Hernandez, individually and as mother and next friend of B.H., appeals from an order of the circuit court of Cook County granting summary judgment in favor of the defendant, Rapid Bus Company (Rapid). For the reasons which follow, we reverse the judgment of the trial court.

According to count I of the plaintiff's second-amended complaint, B.H. was attacked and raped by a fellow student as she walked unescorted from one of Rapid's buses to the Mary Lyons School on April 25, 1985. The plaintiff alleged that Rapid voluntarily provided attendants who rode its buses and escorted special education students into school and that she relied upon the continuation of that escort service for the benefit of her daughter. The complaint also alleges that although Rapid was aware that a number of the special education students riding its bus with B.H. had a propensity toward violent and criminal behavior, on the day that B.H. was raped, its bus driver failed to either escort the students into school or observe them until they had safely entered the school. Instead, the driver merely drove off after the students had exited the bus. The complaint charges that Rapid was negligent in failing to ensure B.H. was safely escorted into the school building and in failing to warn the plaintiff that her daughter would not be escorted into school.

Rapid moved for summary judgment arguing that it did not have a duty to escort B.H. from its bus into the school building or to protect her from a criminal attack by a fellow student. Rapid contended that contrary to the plaintiff's allegations, it merely provided transportation services for the students and that the Chicago Board of Education (Board) had assumed an obligation to escort special education students from its bus to the school building. Rapid relied upon the depositions of Kenneth Deiml, the principal of Mary Lyons School, Conception Ocampo, a teacher's aide, and B.H. Rapid argued the testimony of Deiml and B.H. established that Gertrude Frye, a Board employee charged with the responsibility of escorting the special education students into the school building, was present on its bus when it arrived at Mary Lyons School on the day that B.H. was raped.

The plaintiff's response to Rapid's motion was supported by Frye's deposition, who denied being present on the bus when it arrived at Mary Lyons School on the day B.H. was raped. She testified that Rapid changed its route some time prior to that day, and it required her to exit the bus at Scammon School leaving B.H. and the other special education students who remained on the bus without an escort to Mary Lyons School. Frye testified that when she was informed of the route change, she told a supervisor at Rapid's garage that she could not be responsible for the Mary Lyons students who remained on the bus after she was required to exit at Scammon School. According to her, Rapid's supervisor stated that the bus driver would take the remaining children to Mary Lyons School. Subsequently, the bus driver told Frye that she made sure the students went into the school building. Based upon this testimony, the plaintiff argued that there were questions of fact as to whether Frye was present on Rapid's bus when it arrived at Mary Lyons School on the day in question, and whether Rapid voluntarily undertook to escort B.H. and the other special education students attending Mary Lyons School into the school building.

In its reply memorandum, Rapid argued that even if a question of fact existed on the issue of whether Frye was on its bus when it arrived at Mary Lyons School, summary judgment was still appropriate because it did not have a duty to escort B.H. from the bus to the school entrance or to protect her from an unforeseen attack by a fellow student.

The plaintiff filed a sur-reply contending that questions of fact existed on the issues of whether Rapid should have foreseen that one of the special education students might be harmed if they were not escorted from the bus to the school entrance and whether Rapid was on notice of the violent propensities of B.H.'s assailant when it discharged both of them from its bus unescorted.

In granting summary judgment in favor of Rapid, the circuit court found that there was no genuine issue of fact as to Rapid's prior knowledge of the assailant's violent propensities. As a result, the rape of B.H. was unforeseeable and Rapid had no duty to protect her from it. The plaintiff now appeals.

Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (735 ILCS 5/2-1005(c); Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) In ruling on a motion for summary judgment, the court must construe the pleadings and evidentiary material on file strictly against the movant. ( Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397, 47 Ill. Dec. 392.) If the evidentiary material before the court could lead to more than one reasonable Conclusion or inference, the court must adopt the Conclusion or inference that is the most favorable to the opponent of the motion. Lapidot v. Memorial Medical Center (1986), 144 Ill. App. 3d 141, 494 N.E.2d 838, 98 Ill. Dec. 716.

In urging reversal of the summary judgment, the plaintiff argues that by changing its bus route, Rapid prevented Frye from escorting the Mary Lyons students from the time they exited its bus until they were safely in the school and thereby undertook a duty to protect B.H. until she entered the school. The plaintiff's argument rests upon the proposition that Rapid negligently interfered with B.H.'s opportunity of obtaining assistance, thus rendering it liable for the foreseeable consequences of its actions including the criminal behavior of B.H.'s assailant. See Houren v. Chicago, Milwaukee & St. Paul Ry. Co. (1908), 236 Ill. 620, 86 N.E. 611; W. Keeton, Prosser & Keeton on The Law of Torts § 56 at 382 (5th ed. 1984).

Rapid counters that it owed no duty to B.H. under the circumstances of this case for three reasons: first, it never undertook a duty to escort children from its buses into their schools; second, B.H. was raped on the Board's property over which Rapid had no duty of maintenance or management; and third, it was unforeseeable that B.H. would be raped by a fellow student.

Because the trial court held that Rapid did not owe a duty to protect B.H. from a criminal act by a fellow student, we focus our review on whether Rapid had such a duty under the circumstances of this case. While the duty question presented by this appeal is essentially one of law ( Rowe v. State Bank (1988), 125 Ill. 2d 203, 531 N.E.2d 1358, 126 Ill. Dec. 519), it cannot be decided in a factual vacuum. The legal determination of whether a duty exists upon which tort liability can be predicated is dependent upon the factual circumstances giving rise to the litigation. ( Robinson v. Suitery, Ltd. (1988), 172 Ill. App. 3d 359, 526 N.E.2d 566, 122 Ill. Dec. 307.) When, as in this case, such a determination is made in a summary judgment proceeding, the facts taken from the pleadings and evidentiary material on file must be viewed in their light most favorable to the plaintiff. ( Rowe, 125 Ill. 2d 203, 531 N.E.2d 1358, 126 Ill. Dec. 519.) Consequently, we base ...


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