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10/23/96 THERESA THOMAS v. DERRICK GARNER

October 23, 1996

THERESA THOMAS, INDIVIDUALLY AND AS NEXT FRIEND AND MOTHER OF LATOSHA FRANKLIN, A/K/A LATOSHA THOMAS, A MINOR CHILD, PLAINTIFF-APPELLEE,
v.
DERRICK GARNER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County. No. 90-L-1328. Honorable Milton S. Wharton, Judge, presiding.

Presiding Justice Hopkins delivered the opinion of the court. Chapman, J., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Hopkins

PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

This case is on appeal pursuant to Supreme Court Rule 308. 155 Ill. 2d R. 308. On November 27, 1995, the trial court granted defendant's oral motion for interlocutory appeal, finding, "Thereare questions of law as to which there [are] substantial grounds for difference of opinion and *** resolution of two issues will materially advance the litigation." The trial court certified the following questions for appeal:

"1. Does the circuit court have jurisdiction of an action against a state-employed bus driver for alleged violation of a state statute requiring a school bus driver to discharge passengers on a four-lane highway only at a place where their residences are to the right of the highway, pursuant to [section 11-1415 of the Illinois Vehicle Code (625 ILCS 5/11-1415 (West 1994))]?

2. Does the driver of a school bus owe a duty of care to a plaintiff-pedestrian where the plaintiff-pedestrian is struck by an automobile while crossing the street to pick up a child passenger where the plaintiff-pedestrian alleges that the bus driver negligently placed his passenger in a position of peril, necessitating rescue by the plaintiff-pedestrian?"

On January 10, 1996, this court granted defendant's application for leave to appeal from the above-certified questions.

A. PROCEDURAL HISTORY

On December 13, 1990, plaintiff, Theresa Thomas (Theresa), individually and as the next friend and mother of Latosha Franklin, a/k/a Latosha Thomas (Latosha), filed a one-count complaint against defendant. The relevant allegations of plaintiff's complaint are as follows. Latosha is a minor child, born November 23, 1979. Theresa is her mother. Defendant was "the operator of a certain school bus" and was charged with the responsibility of transporting Joseph Franklin (Joseph), the younger brother of Latosha, "to and from his residence and school facilities." On or about October 31, 1989, when defendant was transporting Joseph back to his residence, Latosha "was struck while crossing the street as a direct and proximate result of the negligent acts or omissions of the Defendant."

In her complaint, Theresa alleged that defendant was negligent in failing to exercise ordinary care, by permitting Joseph "to alight from the bus across the street from his residence" and in failing to transport Joseph to "a place from which he could have walked to his home without crossing the street," thereby placing him "in a position of peril that necessitated rescue by Latosha Franklin." Plaintiff alleged that defendant "permitted or was going to permit Joseph Franklin to leave the bus unassisted when he knew or should have known that such a procedure would be likely to result in an injury to Joseph Franklin and further that such a procedure would necessitate the rescue of Joseph Franklin by such other individuals as the Plaintiff."

On May 22, 1995, defendant filed a motion for summary judgmenton the grounds, inter alia, that defendant owed no duty to plaintiff's child, who was not a bus passenger, and that it was not reasonably foreseeable that a nonpassenger would run across the street as the bus was stopped to drop off a passenger. On October 26, 1995, the trial court denied defendant's motion for summary judgment.

In November 1995, defendant filed a motion to dismiss for want of jurisdiction, on the ground that the doctrine of sovereign immunity barred this suit against defendant in the circuit court and thus the court of claims had exclusive jurisdiction. On November 27, 1995, the trial court denied defendant's motion to dismiss and certified the above questions for interlocutory appeal.

B. ANALYSIS

1. ...


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