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November 30, 1995


Appeal from Circuit Court of Champaign County. No. 95L312. Honorable George S. Miller, Judge Presiding.

Released for Publication January 4, 1996. As Corrected January 9, 1996. Petition for Leave to Appeal Denied April 3, 1996.

The Honorable Justice Green delivered the opinion of the court: Knecht, P.j., and McCULLOUGH, J., concur.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

On March 2, 1995, a two-count complaint was filed in the circuit court of Champaign County on behalf of plaintiff Heather Hendricks, a minor, against defendant Champaign-Urbana Mass Transit District (District) to recover damages allegedly caused by the failure of a District bus driver to intervene in a criminal attack upon plaintiff when she was a passenger on a District bus on October 27, 1994. On May 17, 1995, the court granted defendant's motion pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1994)) to dismiss the complaint in bar of action.

Plaintiff has appealed. Count II was based upon a breach of the Local Governmental and Governmental Employees Tort Immunity Act (Immunity Act) (745 ILCS 10/1-101 et seq. (West 1994)). Plaintiff claims no error in its dismissal. Count I was based upon defendant's alleged common law duty to a passenger. The dismissal of that count was based upon the immunity provided by section 4 ofthe Local Mass Transit District Act (Transit Act), which was pleaded in defendant's section 2-619 motion and which states:

"Neither the District *** nor its officers or employees shall be held liable for failure to provide a security or police force or, if a security or police force is provided, for failure to provide adequate police protection or security, failure to prevent the commission of crimes by fellow passengers or other third persons or for the failure to apprehend criminals." 70 ILCS 3610/4 (West 1994).

Plaintiff maintains on appeal, as she did in the trial court, that section 4 of the Transit Act is subject to (1) a "special duty" exception which is applicable here and would nullify the immunity otherwise granted, and (2) a narrow construction which would negate immunity here, because the immunity granted by section 4 is in derogation of the common law. In regard to both of plaintiff's theories, she relies heavily upon the common law rule which requires carriers, such as the District, to exercise a high degree of care for its passengers. ( Hernandez v. Rapid Bus Co. (1994), 267 Ill. App. 3d 519, 524, 641 N.E.2d 886, 890, 204 Ill. Dec. 456; Cooper v. Bi-State Development Agency (1987), 158 Ill. App. 3d 19, 24-25, 510 N.E.2d 1288, 1292, 110 Ill. Dec. 257.) We hold that section 4 did provide immunity here, and we affirm.

In count I plaintiff alleged (1) she was a passenger on a bus operated by defendant; (2) by virtue of its relationship with plaintiff, defendant owed her a special duty consistent with its status as a common carrier to exercise "the highest duty of care in the circumstances"; (3) as defendant's bus stopped at a bus stop, plaintiff was attacked by a copassenger and a second copassenger who had gotten off the bus and then reentered the bus to join in the attack; (4) the attack consisted of numerous repeated blows to her head and face over a period of several minutes; (5) defendant was guilty of negligence because (a) it failed to protect plaintiff against unreasonable risk of physical harm, (b) failed to exercise reasonable care to secure the safety of plaintiff while within defendant's charge, and (c) it failed to lend reasonable assistance or aid to plaintiff when her plight became apparent to defendant; and (6) as a direct and proximate result of one or more of the foregoing negligent acts or omissions on the part of defendant, plaintiff was physically and financially harmed.

The "special duty" exception upon which plaintiff relies has been carved out of the immunity granted to municipalities and their employees under the Immunity Act. To establish the existence of this "special duty," a plaintiff, seeking to place liability upon an otherwise immune governmental unit, must demonstrate the following requisites: (1) the defendant must be uniquely aware of the particulardanger or risk; (2) the plaintiff must allege specific acts or omissions on the part of the defendant with respect to the danger; (3) the specific acts or omissions must be either affirmative or wilful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality. Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 508, 565 N.E.2d 654, 659, 152 Ill. Dec. 121, overruled on other grounds McCuen v. Peoria Park District (1994), 163 Ill. 2d 125, 129-30, 643 N.E.2d 778, 781, 205 Ill. Dec. 487; Rush v. City of Chicago (1987), 163 Ill. App. 3d 725, 727-28, 517 N.E.2d 17, 19, 115 Ill. Dec. 52.

The "special duty" or "special relationship" exception has been invoked in two basic factual situations. The first occurs where a plaintiff sues a municipality for failure to enforce a law or ordinance, and the second occurs when a plaintiff sues a municipality for injuries negligently caused by police officers or fire fighters while performing their official duties. ( Burdinie, 139 Ill. 2d at 507-09, 565 N.E.2d at 658-59.) In each case, the plaintiffs must demonstrate the municipalities owe them a special duty that is different from its duty to the general public. Burdinie, 139 Ill. 2d at 507-09, 565 N.E.2d at 658-69.

Any application of the "special duty" exception to the conduct of District bus drivers would have to arise from a theory that the common law duty of carriers to their passengers satisfies the direct and immediate control factor of the fourth prong of the Burdinie rule. If this were so, a "special duty" exception would virtually swallow and destroy any purpose for section 4 of the Transit Act, since the only people, other than their own employees, that transit districts could possibly have any duty to protect from criminal attack would be their passengers.

Plaintiff asserts that the brief history of section 4 of the Transit Act in the courts of review gives indication that the Supreme Court of Illinois may look favorably on her view that the "special duty" exception is applicable here. In Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 531 N.E.2d 1, 125 Ill. Dec. 822, that court upheld the constitutionality of section 27 of the Metropolitan Transit Authority Act (Metropolitan Act) (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 327), which contained the same immunity provision as section 4 of the Transit Act. In regard to the argument that section 27 was special legislation or denied equal protection because it granted immunity which other municipalities did not have because they were subject to the "special duty" exception, that court stated:

"We need not consider whether or not the common law duty of common carriers to protect passengers from criminal acts of third parties must be identified with and treated the same as the 'specialduty' exception to the immunity conferred on municipal entities in section 4-102 for failure to protect individuals from crime. Even if we assume, arguendo, that the common law duty of carriers and the 'special duty' exception are analogous, as the plaintiff puts it, and that section 27 provides the CTA with a broader immunity than other municipal entities enjoy under the Tort Immunity Act, we ...

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