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Kohn v. Laidlaw Transit

April 12, 2004

[5] MORRIS KOHN, PLAINTIFF-APPELLANT,
v.
LAIDLAW TRANSIT, INC., MAYFLOWER CONTRACT SERVICES, INC., AND ALICE M. MILLENDER, DEFENDANTS-APPELLEES.



[6] Appeal from the Circuit Court of Madison County. No. 99-L-342 Honorable George J. Moran, Jr., Judge, presiding.

[7] The opinion of the court was delivered by: Presiding Justice Chapman

[8]  The plaintiff, Morris Kohn, appeals from an order granting a summary judgment in favor of the defendants. We affirm.

[9]  I. BACKGROUND

[10]   Kohn's amended complaint contains three nearly identical counts for negligence against the defendants, Laidlaw Transit, Inc., Mayflower Contract Services, Inc., and Alice M. Millender, a school bus driver. Kohn alleges that Millender was operating a school bus in a southerly direction on Washington Avenue in the City of Madison, where she stopped the bus to drop off a passenger (Tyrone Collins). He alleges that he collided with Tyrone as Tyrone attempted to cross Washington Avenue in front of the bus, because Millender failed to operate the mechanical arm and stop sign on the bus. Kohn further alleges that he was attacked by a number of bystanders and suffered serious and permanent injuries to his face and head when he attempted to render assistance to Tyrone. Kohn contends that Millender owed a duty to him to exercise reasonable care in using the arm and sign on the side of the bus to warn vehicles and prevent them from passing while passengers were departing. Kohn alleges that the defendants committed the following negligent acts or omissions which proximately caused his injuries:

[11]   "(A) Failed to operate, utilize, and extend the mechanical 'stop' sign and arm from the side of its bus so as to prevent the Plaintiff's vehicle from colliding with one of the bus' [sic] passengers;

[12]   (A) Failed to operate, utilize, and extend a mechanical 'stop' sign and arm from the side of said bus to warn the Plaintiff of the existence of departing bus passengers;

[13]   (B) Failed to render assistance to the Plaintiff as he was being assaulted, attacked, and battered by his assailants; and [sic]

[14]   (C) Failed to inform the angry mob which had gathered around the Plaintiff that the mechanical 'stop' sign and arm had not been extended from the side of said bus[;] [and]

[15]   (D) Negligently and carelessly made statements at the scene of the accident and deployed the mechanical 'stop' arm after the Plaintiff's vehicle struck the child[,] which inflamed the bystanders to take hostile actions against the Plaintiff."

[16]   The defendants stated in their renewed motion for a summary judgment that Millender was employed as a bus driver for Laidlaw Transit, Inc., and Mayflower Contract Services, Inc. Millender stopped the bus to drop off Tyrone and Jessica Collins. When Millender stopped the bus, she opened the door, which extended the mechanical arm and stop sign. Tyrone and Jessica's mother entered the bus to sign her children off the bus. Millender closed the door when they exited the bus, which automatically retracted the mechanical arm and stop sign.

[17]   The defendants' motion contains the following four arguments: (1) the defendants owed no duty to Kohn because Tyrone's mother signed Tyrone off the bus and had custody of him at the time of the incident, (2) the defendants fulfilled any duty imposed by Illinois law because Millender extended the arm and sign when Tyrone was exiting the bus, (3) the defendants did not owe Kohn a duty because he was the victim of a criminal attack by other people, and (4) the defendants' alleged negligence was not the proximate cause of Kohn's injuries because the attack constituted a subsequent independent act that broke the causal connection between Millender's acts or omissions and Kohn's injuries. Without explanation the trial court granted the defendants' renewed motion.

[18]   A summary judgment is appropriate when the pleadings, depositions, affidavits, and admissions on file, viewed in the light most favorable to the nonmoving party, reveal that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349, 701 N.E.2d 493, 496 (1998). A summary judgment is a drastic remedy that is allowable only when the right of the moving party is clear and free from doubt. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291, 730 N.E.2d 1119, 1127 (2000). A motion for a summary judgment is reviewed de novo. ESM Development Corp. v. Dawson, 342 Ill. App. 3d 688, 692, 795 N.E.2d 397, 401 (2003). Our function on an appeal from the grant of a summary judgment is limited to determining whether the trial court correctly found that no genuine issue of material fact existed and, if that was the case, whether the trial court correctly entered a judgment as a matter of law. General Casualty Co. of Illinois v. Carroll Tiling Service, Inc., 342 Ill. App. 3d 883, 889, 796 N.E.2d 702, 707 (2003). The following evidence was before the trial court.

[19]   Morris Kohn's Testimony

[20]   Kohn testified as follows. Immediately preceding the incident, he had been on Third Street in Madison and turned right at a four-way stop onto Washington Avenue. When he turned onto Washington Avenue, a two-lane, two-way street, he noticed a bus parked about two short blocks ahead of him on the right. The bus's lights were not flashing and the mechanical arm and stop sign were not extended. He was traveling very slowly and approached a four-way stop at the end of the first block on Washington Avenue. A car was stopped at the same intersection to his left. He waved at the car to turn, and the car turned left onto Washington Avenue ahead of Kohn. After the stop sign, he continued to approach the bus, which was parked in the middle of the block on the south side of an alley. He was traveling about 5 to 10 miles per hour. Kohn saw the car that he had waved on park behind the bus on the north side of the alley. He observed that the car was white, had four doors, and contained four male African-American occupants (Kohn is Caucasian). The occupants exited the vehicle and walked toward some boxcar trailers on the right side of the street directly across from a housing project. He described the surrounding area as a "bad" area. A large crowd of people had gathered, and they were talking by the bus, which was parked at the curb and not occupying the entire traffic lane. As he approached the bus, he still did not see any flashing lights or the mechanical arm and stop sign extended. He approached the bus cautiously, and as the front end of his car reached the front end of the bus, Tyrone appeared. Kohn "stomped" on his brakes and he observed Tyrone run away crying. He does not know if he struck Tyrone. Tyrone did not hit the ground and he was not limping. (Tyrone returned to school two days later and had not filed suit against Kohn.)

[21]   The front end of Kohn's vehicle came to rest a few feet ahead of the front end of the bus, such that when he exited the vehicle to check on Tyrone, he stood directly across from the bus driver, who was sitting in her seat. When Kohn got out of his vehicle, a group of men surrounded him. They began yelling at Kohn, "What are you doing running around, running stop signs?" (referring to the mechanical arm and stop sign on the bus). The bus driver sat in the bus and never got out; she leaned and spoke out of her window. While Kohn was surrounded by this group of men, he said to the bus driver, "Lady, tell the people that the sign was not out." The bus driver said that the sign was out. She further stated: "I'm not lying. The sign was out." The group of men continued to accuse Kohn, saying, "Why are you trying to hurt that little boy?" Kohn replied that he was not trying to hurt anyone, that he had children of his own, and that the sign had not been out.

[22]   About 50 people had gathered around him at this point, including the four men he had waved through the intersection. Three or four men in particular were "on his case." One man, standing directly in front of him, was interrogating him. He observed one of the men who had been in the parked vehicle walk to the trunk of the vehicle and return with a tire iron. The man interrogating him took a step away from Kohn, and Kohn was struck from behind on the side of his head with what he believes was the tire iron. He fell to the ground and was beaten severely by the four men who had parked behind the bus, who he believed were intoxicated. He rose to his feet and was beaten down again. He heard police sirens as he rose a second time and suddenly found himself alone. He said to the bus driver: "I hope you're happy, Lady. Is this what you wanted?" The bus driver said: "I'm so sorry, sir. They should not have done that. You're right. The sign was not out." Kohn asked her to tell the police the truth and she said she would.

[23]   Kohn provided the police with descriptions of his attackers, including one who had a "bum" eye and scars. Although the police recognized the descriptions of Kohn's attackers, they have not been caught and their identities ...


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