Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County. No. 12 L 3868. The Honorable Kathy Flanagan, Judge, presiding.
In an action arising from an incident in which defendant bus driver took plaintiff, an intoxicated passenger on his bus, to his residence after his shift ended and allegedly sexually assaulted her, the trial court erred in dismissing the counts of plaintiff's complaint against defendant bus company alleging battery based on sexual assault and false imprisonment, both under a theory of respondeat superior and on the bus company's status as a common carrier, but the count against the bus company alleging negligent supervision was properly dismissed.
For Appellant: Jeffrey S. Deutschman, Deutschman & Associates, P.C.
For Appellee: Jeffrey G. Chrones, Garrett L. Boehm, Jr., James V. Tomaska, Johnson & Bell, Ltd.
PRESIDING JUSTICE PALMER delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Taylor concurred in the judgment and opinion.
[¶1] Plaintiff brought this action to recover damages for injuries she sustained when she was allegedly sexually assaulted by defendant Jeffrey Moore (Moore), a bus driver employed by Pace. Plaintiff asserted claims against Moore and Pace. Pace filed a motion to dismiss counts I through III, all of which were directed solely at Pace. The circuit court granted Pace's motion and dismissed those counts with prejudice.
[¶2] In her third amended complaint, plaintiff first asserted a claim for " battery (sexual assault)" against Pace under a theory of respondeat superior and alleged the following facts. On May 9, 2011, Moore was operating a Pace bus on a route from the Chicago Heights terminal to Harvey, Illinois. On that same date, plaintiff boarded Pace's bus, operated by Moore, to be transported from her doctor's office to her home. During this trip, plaintiff was clearly intoxicated and was from time to time passed out on the bus and could be seen by any reasonable person to be in need of assistance to get off the bus at her regular stop. Pace, by its employee Moore, knew that plaintiff was intoxicated and unable to care for herself in alighting from the bus at her proper stop. Plaintiff continued to ride the bus in a passed-out condition through several " passes past her stop" and until Moore's shift had ended. Moore did not call for medical attention or law enforcement intervention for a passenger he knew was intoxicated, falling in and out of consciousness and unable to get off the bus at her regular stop. Moore did not radio the bus dispatcher for assistance when it was clear that plaintiff was intoxicated and confused. Pace, by its bus driver Moore, failed to take plaintiff to a place of safety when it was clear that she was intoxicated and confused. Instead, after his shift ended, Moore took plaintiff to his home, where he sexually assaulted her while she was in an intoxicated condition and unable to consent. Plaintiff awoke in Moore's bed the following morning and became nervous and angry as to how she ended up naked in the bed of a man whom she did not know. All of Moore's actions were taken during his duties as a bus driver and were taken in conscious disregard for plaintiff's safety. Pace, as a common carrier, owed a high duty of care to passengers in the act of boarding, upon or in the act of alighting from the bus. Pace entrusted these duties to Moore, who was acting as a bus driver in the scope of his employment, and as such Pace was responsible for Moore's actions on the bus under the doctrine of respondeat superior. As a proximate result of the above acts and omissions, plaintiff sustained severe physical
and emotional injuries and asked the court to award her a sum in excess of $50,000.
[¶3] In count II, plaintiff asserted a claim of negligent supervision against Pace. Plaintiff alleged that Pace owed a high duty of care to control its bus driver Moore while he was acting in the scope of his employment in removing plaintiff from the bus with the intention of taking her to his home to sexually assault her. Pace owed plaintiff a duty to carry its passengers safely and properly and it entrusted that duty to Moore. As such, Pace was responsible under the doctrine of respondeat superior. Plaintiff further alleged that Pace knew or had reason to know that it had the ability to control Moore and knew or should have known of the necessity and opportunity for exercising such control by preventing its drivers from taking home passengers who were under the influence of drugs or alcohol. It is common for impaired persons to ride Pace buses, and Pace knew of the need to train its drivers on how to properly handle impaired patrons. In addition, Pace knew or should have known of the need to monitor its buses with cameras and other security devices to ensure that drivers did not take advantage of impaired passengers. On information and belief, Pace failed to employ cameras or other security devices on the bus in question, failed to employ policies or procedures which would dictate how drivers handled incapacitated passengers and failed to perform a background check, which would have identified Moore's " deviant tendencies" before the incident occurred. By failing to undertake the above duties, Pace was negligent in hiring, retaining and supervising Moore. As a proximate result of one or more of the above negligent acts or omissions, plaintiff was sexually assaulted and suffered permanent injuries and asked for an amount in excess of $50,000.
[¶4] In count III, plaintiff asserted a claim of false imprisonment against Pace under the doctrine of respondeat superior. Plaintiff realleged the facts in count I and further alleged that she was unable to get off the bus at her intended stop due to her intoxication. Pace, through Moore, was aware that plaintiff intended to get off the bus but lacked the ability to do so on her own. Pace had responsibility to remove a passenger or otherwise assist her in disembarking the bus when it knew she lacked the ability to do so on her own. When plaintiff was " carried along superfluous circuits of the bus route and taken off route to the bus storage area," Pace, through Moore, compelled plaintiff to go where she did not wish to go and to remain where she did not wish to remain. All of Moore's activities in this regard were done during his duties as a bus driver. Pace, as a common carrier, owed a duty of high care to passengers such as plaintiff and it entrusted that duty to Moore. Pace's actions, in compelling an impaired person to remain on the bus against her will and taking her to places she did not wish to go, created the opportunity and occasion for her to be victimized and the sexual assault was the proximate result of the above-described actions.
[¶5] Plaintiff's complaint also asserted a claims against Moore for battery (count IV) and a claim under the gender violence act (count V). Those counts are not at issue in this appeal.
[¶6] Pace filed a motion to dismiss the complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2012)). Pace argued that count I failed to state a cause of action for battery because Moore was not acting within the scope of his employment when the alleged sexual assault occurred. Pace argued that count II failed
state a cause of action for negligent supervision because Pace had no duty to supervise acts of its employee while he was off duty and at his home and because count II was factually insufficient. Pace argued that count III failed to state a cause of action for false imprisonment because Moore was not acting within the scope of his employment when the alleged false ...