APPEAL IN THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MICHAEL J. KELLY, JUDGE PRESIDING.
The Honorable Justice Wolfson delivered the opinion of the court: Braden, J., concurs. Campbell, P.j., dissenting.
The opinion of the court was delivered by: Wolfson
JUSTICE WOLFSON delivered the opinion of the court:
During the 1983-84 school year Daniel Giraldi attended the morning kindergarten session at Forest Elementary School in Des Plaines, within District 62. He was transported to school on a school bus owned by Septran, Inc. The bus was driven by James Lamson.
On May 14, 1986, Lamson pleaded guilty but mentally ill to a charge of "aggravated criminal sexual assault on Danny Giraldi" committed during the 1983-84 school year.
Daniel, by his father and next friend, Thomas Giraldi, brought suit against Lamson, Septran, and Community Consolidated School District 62. The lawsuit sought money damages against the defendants for Lamson's sexual abuse of Daniel.
There was a jury trial. This case concerns several trial court rulings that preceded a no liability verdict for the defendants. One of these rulings requires us to decide whether it was error to allow a defendant's lawyer to take the stand to attack the credibility of a plaintiff's witness.
We affirm the judgment entered for the defendants.
The complaint contained four counts: (1) that Septran failed to exercise reasonable care in the operation of its business and was careless and negligent in its hiring, investigation and supervision of Lamson; (2) that Septran was guilty of wilful and wanton misconduct in its hiring, investigation, and supervision of Lamson; (3) that Lamson, while employed as a school bus driver by Septran and in the course of his duties, physically and sexually abused Daniel during the 1983-84 school year; and (4) that District 62, owing Daniel a duty of reasonable care, carelessly and negligently entered into a contract for services with Septran, failed to investigate the bus drivers hired by Septran, failed to investigate Lamson, and failed to supervise Septran in the fulfillment of the contract.
On January 4, 1993, Lamson moved to sever the case against him from the other defendants based on a claim of undue hardship. Because an unopposed summary judgment had been entered against Lamson, the only issue remaining against him was the amount of damages to be assessed. Lamson (who was incarcerated) was without funds to pay an attorney to represent him during what promised to be a lengthy trial.
Later, Septran and District 62 also filed motions asking that Lamson be severed from the case. They argued that they would be unfairly prejudiced if Lamson's case were tried simultaneously with theirs. The motions were granted.
The case against Septran and District 62 was tried before a jury. At the close of the case, the trial court removed from the jury's consideration the issue of wilful and wanton misconduct by the defendants, as well as the issue of negligent hiring. After hearing closing argument and receiving instructions from the court, the jury found no liability on the part of either defendant.
On Mondays, Tuesdays, Wednesdays, and Fridays (Daniel's mom drove him to school on Thursdays, which was her day off), Daniel was taken to a babysitter's around 7:50 a.m., where he was picked up by the school bus, which was scheduled to arrive between 8:20 and 8:25 in the morning. Daniel was the first child to board the bus.
On two occasions the babysitter noticed Lamson hug Daniel when he entered the bus. This information was given to Mrs. Giraldi, who testified that she reported this to Daniel's teacher. The teacher, according to Mrs. Giraldi, assured her that it was nothing to worry about.
Mrs. Giraldi never pursued this lead any further. Even though, as she testified, she later discovered blood in Daniel's underwear on various occasions and Daniel expressed anxiety about attending school, she never made any further inquiries. She never brought the information she had to the attention of the principal, the school district, or the bus company. Mrs. Giraldi did not suspect that her son was molested until March 1985, when she saw Lamson's picture in the newspaper.
Daniel's school teacher, Mrs. Niles, testified that she did not recall Mrs. Giraldi telling her about Lamson "hugging" Daniel. In fact, she could not recall any specific instance of speaking with Mr. or Mrs. Giraldi. She indicated, however, that "hugging" would not have necessarily alerted her to a problem since five-year-olds often need reassurance. She often hugged the children she taught.
Mrs. Niles remembered Daniel as a pleasant, average student. He got along with the other students, she said, and his behavior was age appropriate. Based on her observations of Daniel's progress that year, along with his scores in a "readiness test" administered by the school, Daniel was promoted to first grade. Attendance records for the 1983-84 school year also showed that Daniel had been absent seven days that year, but never was tardy.
Mrs. Johnson, the principal at Forest Elementary, and Sheryl Anderson, the bus monitor who supervised the arrival and departure of school buses at Forest Elementary, testified that they did not remember Lamson's bus as being unusually late during the 1983-84 school year. Lamson was occasionally late, but this was not an uncommon event for school buses.
According to their testimony, whenever any school bus was late the school called Septran. Septran would then contact the bus, which was equipped with a radio. Once Septran discovered the reason for the bus running late, Septran would call the school back to report what the problem had been. In their opinion, inquiries about latenesswere always adequately explained. No records were kept regarding the number of times buses were late throughout the 1983-84 school year.
Evelyn Markowski, the Septran employee who hired Lamson, and Sergeant Wolter, the police officer who investigated Lamson's criminal case, both testified that Lamson had no criminal background and no history of psychological problems. Markowski further noted that when Lamson was hired by Septran in 1983, he already possessed a valid school bus drivers' permit. Holding such a permit meant that he had fulfilled all of the State's statutory requirements for the issuance of such a permit.
By statute, a school bus driver's permit will not be issued unless the applicant has passed a written test and a driving test; has a class B or C driver's license; passes a physical examination to check physical and mental health; has had a course in first aid and driving safety; has had no more than two moving traffic offenses within the past year; has no record of reckless driving while intoxicated, manslaughter, or reckless homicide; has no convictions for a number of criminal offenses including murder, rape, and deviate sexual conduct; has no history of repeated violations of traffic laws and ordinances; has never caused an accident resulting in the death of another; and has never been adjudged to be afflicted with mental disability or disease. The permit must be renewed annually.
When Lamson applied for a job, Markowski made sure that his bus driver's permit was valid. She also checked Lamson's employment history. Davidsmeyer, Lamson's previous employer, was contacted. Davidsmeyer confirmed that Lamson had been driving a school bus for special education children for the past four years. There were no reported problems.
Lamson was let go, Davidsmeyer said, because of lateness and tardiness. It was explained, however, that Lamson had a second job, which sometimes caused him to be late. Also, Lamson had a tendency to run late on the bus route because he was friendly with the parents of the children and stopped to speak with them.
At the time he applied with Septran, Lamson had also maintained a job with Best Western for five years. Markowski contacted this employer, too. No negative reports were obtained.
Markowski admitted that Septran received three complaints about Lamson during the 1983-84 school year. These complaints, according to Markowski, pertained solely to the bus being late along its route. This was a common complaint regarding school buses, she explained.
In response to the first complaint against Lamson, Markowskispoke with Lamson directly. After the second complaint, she placed a person on Lamson's bus for two days to supervise his driving and to determine whether he was driving the route properly. After the third complaint, she had someone "tail" Lamson's bus without his knowledge. In each instance it was determined that Lamson was driving the bus route correctly.
The plaintiff called Lamson as a witness. He testified that he drove a school bus for Septran during the 1983-84 school year and admitted that Daniel was on his route. Lamson further admitted that on May 14, 1986, he pleaded guilty but mentally ill, to "aggravated criminal sexual assault on Danny Giraldi." He testified, however, that he did so to avoid trial. He denied hugging, kissing, or fondling Daniel.
The most controversial evidence came from Nancy Levin, the mother of two children who boarded Lamson's school bus immediately after Daniel's stop.
Levin testified that she was told by another Septran bus driver that Lamson's bus was parked along the street. This bus driver suggested that Levin call Septran to complain. Levin said that this information prompted her to call Septran.
Levin testified that she told Septran about the bus being parked. In her deposition, however, Levin said she called about the bus being late. She did not say in her deposition that she told Septran about the bus being parked. In that deposition she never was asked directly whether she told Septran about the bus being parked.
Defense counsel impeached Levin with her statements in the deposition. In addition, counsel was allowed to impeach Levin with a conversation she had with him in the ...