                             2016 IL App (2d) 150554
                                  No. 2-15-0554
                           Opinion filed March 31, 2016
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

JANE DOE, as Next Best Friend of J.D.,      ) Appeal from the Circuit Court
a Minor,                                    ) of Winnebago County.
                                            )
        Plaintiff-Appellee,                 )
                                            )
v.                                          ) No. 14-L-216
                                            )
PETER A. SANCHEZ,                           )
                                            )
        Defendant                           ) Honorable
                                            ) Eugene G. Doherty,
(First Student, Inc., Defendant-Appellant). ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SPENCE delivered the judgment of the court, with opinion.
       Justices Hudson and Birkett concurred in the judgment and opinion.

                                           OPINION

¶1     This appeal presents two certified questions concerning what duty a private contractor

owes the students it transports and whether it may be liable for the misconduct of an employee

committed outside the scope of employment.

¶2     Plaintiff, Jane Doe, brought suit against Peter Sanchez and his employer, First Student,

Inc., alleging that Sanchez inappropriately touched her daughter, J.D., a minor, during the course

of his duty as J.D.’s school bus driver. First Student filed a combined motion to dismiss the

counts against it. It argued, in pertinent part, that it could not be held vicariously liable for

Sanchez’s alleged misconduct, because the conduct was committed outside the scope of his
2016 IL App (2d) 150554


employment. It also argued that it was not acting as a common carrier and that therefore its duty

of care toward J.D. was not heightened.

¶3     The trial court denied First Student’s motion to dismiss, holding, in pertinent part, that

First Student owed J.D. a standard of care as if it were operating as a common carrier and that it

could be vicariously liable for the misconduct of Sanchez, even for misconduct committed

outside the scope of employment. First Student filed a motion to certify two questions for appeal

pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015)), and the trial court granted its

motion. In short, the questions were whether First Student should be held to the same standard

of care as a common carrier and whether it could be vicariously liable for the actions of its

employee committed outside the scope of employment. We allowed the interlocutory appeal.

¶4     For the reasons herein, we answer both certified questions in the affirmative.

¶5                                      I. BACKGROUND

¶6     Plaintiff filed her complaint against Sanchez and First Student on July 15, 2014. The

complaint alleged that Sanchez was an employee of First Student, which was hired by Prairie

Hill School District (Prairie District) to provide bus transportation services for students in the

district. The complaint continued that J.D. was a student in Prairie District and that, between

April 14 and May 23, 2014, Sanchez touched J.D.’s genitals and buttocks without consent while

she was riding on the bus that Sanchez was operating. Plaintiff alleged that the touching

occurred during the course of Sanchez’s duty as a bus driver and that First Student was

responsible for ensuring the students’ safety on the bus.

¶7     The complaint alleged six counts against Sanchez, for battery, assault, false

imprisonment, intentional infliction of emotional distress, negligent infliction of emotional

distress, and a violation of the Illinois Gender Violence Act (740 ILCS 82/5 (West 2014)). It



                                               -2-
2016 IL App (2d) 150554


alleged the same six claims against First Student (counts VII through XII) plus a claim for

negligence (count XIII).

¶8     On August 21, 2014, First Student filed a combined motion to dismiss plaintiff’s

complaint under sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-

615, 2-619 (West 2014)). First Student argued that sexual assault is, by its nature, personally

motivated and therefore is an act outside the scope of employment. Accordingly, First Student

argued, Sanchez’s alleged sexual assault was outside the scope of his employment and, therefore,

First Student could not be vicariously liable for it.

¶9     First Student also argued that it was not acting as a common carrier. It argued that the

relevant test was whether it served all of the public alike. Doe v. Rockdale School District, 287

Ill. App. 3d 791, 794 (1997). It continued that, because it transported only students for Prairie

District, not all members of the general public, it was not acting as a common carrier. In any

event, First Student contended, a common carrier is not vicariously liable for the intentional torts

and criminal acts of its employees outside the scope of employment.

¶ 10   On November 24, 2014, the trial court held a hearing on First Student’s combined motion

to dismiss. At the hearing, the trial court was particularly concerned about whether to impose on

a private carrier a standard of care normally reserved for a common carrier.

¶ 11   On January 21, 2015, the trial court issued its memorandum opinion and order on the

combined motion to dismiss. In its memorandum, the trial court recognized that First Student

did not meet the definition of a common carrier in Illinois. A common carrier was one that

would serve all of the public alike (Illinois Highway Transportation Co. v. Hantel, 323 Ill. App.

364, 375 (1944)), whereas a private carrier would serve only certain persons by special

agreement in particular instances (Rockdale School District, 287 Ill. App. 3d at 794). However,



                                                 -3-
2016 IL App (2d) 150554


it continued to examine whether First Student owed the same high duty of care regardless. It

reviewed Green v. Carlinville Community Unit School District, 381 Ill. App. 3d 207, 213 (2008),

where the court held that the school district, although not a common carrier, owed its students the

same standard of care that a common carrier would.

¶ 12   According to the trial court, it “certainly makes no difference to the child whether the

driver is employed by the school, or by a contractor hired by the school.” Yet, the court noted, it

had to exercise caution because, while the rationale of Green appeared applicable, the facts were

not directly on point. The court therefore posed two questions: (1) whether there was authority

for imposing a heightened standard of care on a private provider of school bus services; and (2)

if so, whether there was authority that a private employer could be vicariously liable for the

criminal actions of its employee.

¶ 13   The trial court answered its first question in the affirmative, finding that under Garrett v.

Grant School District No. 124, 139 Ill. App. 3d 569 (1985), First Student owed J.D. a heightened

standard of care. The court reasoned that the conclusion in Garrett, although “difficult to

unwind,” was that all parties transporting students owed the students the same duty of care.

Regardless of whether a party was a public school district or a private entity, the party owed the

students the highest duty of care, the same as if it were operating as a common carrier.

¶ 14   Next, the trial court answered its second question in the affirmative, finding that First

Student could be vicariously liable for Sanchez’s misconduct outside the scope of his

employment. It relied on Green, 381 Ill. App. 3d at 212-13, and Dennis v. Pace Suburban Bus

Service, 2014 IL App (4th) 132397, ¶ 18, to hold that, when common carrier liability is imposed,

an employer may be liable for its employee’s actions outside the scope of employment.

¶ 15   Nevertheless, the trial court had concerns. In particular, it noted a lack of controlling



                                               -4-
2016 IL App (2d) 150554


authority precisely on point with the facts of this case. It explained that, while the protection of

school children is a well-recognized public policy concern, Illinois statutory law generally makes

it more difficult for plaintiffs to recover in negligence cases against public schools. See 745

ILCS 10/1-101 et seq. (West 2014). For example, the court noted, under Green, a school district

may be liable for the criminal misconduct of a bus driver but not necessarily for the misconduct

of a teacher or other employee who cares for the children during the school day. Finally, the

court noted that, even if the common-carrier duty applies to a private entity such as First Student,

vicarious liability does not necessarily follow. In other words, a heightened standard of care for

conduct within the scope of employment does not necessarily equate to liability for misconduct

outside the scope of employment. The court then suggested that the parties file a motion for a

Rule 308 appeal.

¶ 16   On May 13, 2015, First Student filed a timely motion to certify the following two

questions for Rule 308 appeal:

       “(1) If a privately contracted provider of student busing services owes the same elevated

       duty of a common carrier which would be imposed on a school district providing the

       same services, then,

       (2) Does this quasi-common carrier standard of care necessarily require that common

       carriers be held vicariously liable for their employee’s intentional torts, such as sexual

       assaults, that are committed outside the scope of their employment, without regard to

       whether they have any knowledge of any such propensity?”

¶ 17   On May 15, 2015, the trial court granted First Student’s motion, certifying the two

questions therein verbatim. It found that its January 21, 2015, order involved questions of law as

to which there were substantial grounds for difference of opinion and that an immediate appeal



                                               -5-
2016 IL App (2d) 150554


could materially advance the ultimate termination of the litigation.

¶ 18                                      II. ANALYSIS

¶ 19   Our review of certified questions on permissive interlocutory appeal is governed by Rule

308. See Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 56-57 (2007). Rule 308 permits an

appeal of an interlocutory order where the trial court finds that the order involved a question of

law on which there are substantial grounds for difference of opinion and that an immediate

appeal from the order could materially advance the ultimate termination of the litigation. Walker

v. Carnival Cruise Lines, Inc., 383 Ill. App. 3d 129, 133 (2008). If the trial court makes these

two necessary findings, we may hear an interlocutory appeal at our discretion. Ill. S. Ct. R.

308(a) (eff. Jan 1, 2015); Rommel v. Illinois State Toll Highway Authority, 405 Ill. App. 3d 1124,

1125 (2010).

¶ 20   We agree that this appeal presents questions of law for which there are substantial

grounds for difference of opinion. The certified questions revolve around the existence of a tort

duty, which is a question of law. Doe-3 v. McLean County Unit District No. 5 Board of

Directors, 2012 IL 112479, ¶ 20. As the trial court stated, there is no directly applicable case

law answering whether a private busing company owes students a heightened standard of care

and, if so, whether it can be vicariously liable for its employees’ acts outside the scope of

employment. We also agree that this appeal could materially advance the ultimate termination of

the litigation. If we were to answer either question in the negative, the trial court should have

dismissed the counts against First Student. Therefore, we exercise our discretion to answer the

certified questions on appeal.




                                               -6-
2016 IL App (2d) 150554


¶ 21   Certified questions under Rule 308 are issues of law, and therefore our review is de novo.

De Bouse v. Bayer, AG, 235 Ill. 2d 544, 550 (2009); Dale v. South Central Illinois Mass Transit

District, 2014 IL App (5th) 130361, ¶ 11. We address each question in turn.

¶ 22          A. Question 1: Whether to Apply A Common-Carrier Standard of Care

¶ 23   The first question is whether a private contractor providing student busing services owes

the students it buses a standard of care commensurate with that of a common carrier. First

Student argues that it does not. First Student argues that it was not operating as a common

carrier, because it was not transporting all members of the public indiscriminately; it was

transporting only certain students from Prairie District. Plaintiff does not dispute that First

Student does not meet the traditional definition of a common carrier. See Browne v. SCR

Medical Transportation Services, Inc., 356 Ill. App. 3d 642, 647 (2005) (explaining that a

common carrier serves the general public indiscriminately). Rather, plaintiff argues that First

Student should be held to the same standard regardless.

¶ 24   First Student argues that among the appellate courts there is a “difference of opinion on

this issue” of whether to impose a common-carrier duty on a private company that buses

students. Compare Rockdale School District, 287 Ill. App. 3d at 794-95 (holding that the school

district, as principal of the agent school busing company, was not acting as a common carrier),

and Browne, 356 Ill. App. 3d at 647-48 (holding that medical-transportation service was not a

common carrier), with Green, 381 Ill. App. 3d at 213 (holding that a school district transporting

students owed the students the same standard of care as a common carrier), and Garrett, 139 Ill.

App. 3d at 575 (holding that a school district engaged in student-transportation services should

be held to same standard of care as a common carrier). However, First Student argues that

neither Green nor Garrett controls the question before us.       It argues that Green’s holding



                                              -7-
2016 IL App (2d) 150554


concerned only school districts and does not apply to private entities. See Green, 381 Ill. App.

3d at 214 (the issue before the court was “to determine what common-law duty a school district

owes to its student passengers when they are being transported on the school district’s bus”).

First Student further argues that Garrett is factually distinguishable from this case because

Garrett did not involve allegations of sexual assault. Moreover, the issue in Garrett was whether

the school district provided a reasonably safe means of egress for students at the location of the

bus stop. Garrett, 139 Ill. App. 3d at 576 (school district had duty to select a discharge point that

did not needlessly expose students to serious safety hazards). Its central holding was not that the

school district owed a higher standard of care to the students but rather that it owed only an

ordinary standard of care. Id. at 578. Therefore, First Student argues, Garrett is inapplicable

here.

¶ 25    Plaintiff responds that, under Green and Garrett, First Student should be held to the same

standard of care as a common carrier. Plaintiff argues that students on a school bus, like

individuals engaging a common carrier, depend on the school district, or the bus company it

hires, to ensure personal safety. See Green, 381 Ill. App. 3d at 213.       Plaintiff continues that

Green is consistent with Garrett, which held that a school district engaged in the transportation

of students would be held to the same standard of care as a private party operating as a common

carrier. Garrett, 139 Ill. App. 3d at 575.

¶ 26    Whereas Green and Garrett addressed the duty of school districts, plaintiff, citing Van

Cleave v. Illini Coach Co., 344 Ill. App. 127 (1951), argues that the same rule applies to private

entities. In Van Cleave, the court held that “those engaged in the transportation of school

children should be held to exercise the highest degree of care.” Id. at 129. The Van Cleave court

reasoned that whether the defendant transportation company was acting as a common carrier or a



                                                -8-
2016 IL App (2d) 150554


private carrier did not control; what mattered was that it was operating a bus to transport school

children. Id. Plaintiff argues that Green, Garrett, and Van Cleave, read together, support that a

private contractor providing student busing services should be held to the same standard of care

as a common carrier. Plaintiff reiterates the trial court’s words that it “certainly makes no

difference to the child whether the driver is employed directly by the school or by a contractor

hired by the school.”

¶ 27   We agree with plaintiff and answer the first certified question in the affirmative: A

private contractor providing student transportation services owes the students it transports the

same duty of care imposed on a common carrier—that is, the highest standard of care. See

Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 226 (2010) (a common carrier has a duty to

its passengers to exercise the highest degree of care). Our answer is premised on Illinois

precedent and the strong public policy to ensure the safe transportation of students.

¶ 28   The question here closely resembles the question posed and answered in Green, which

was whether a school district that provided student busing services owed the students a

heightened standard of care, even though the school district was not acting as a common carrier.

Green, 381 Ill. App. 3d at 213. In Green, the plaintiff was a girl who attended kindergarten in

the defendant school district and told her mother that her school bus driver had sexually molested

her. Id. at 209. The plaintiff’s complaint against the school district was premised on her

allegation that the school district was acting as a common carrier, although, during the trial court

proceedings, the plaintiff also argued that the school district owed her the highest degree of care

regardless of whether it was classified as a common carrier. Id. at 209-10. The trial court

granted summary judgment in favor of the school district, holding in pertinent part that the

school district was not a common carrier. Id. at 210.



                                               -9-
2016 IL App (2d) 150554


¶ 29   On appeal, the court affirmed that the school district was not a common carrier, but it did

not stop its analysis there. Id. at 212. The court continued that the school district, in providing

bus transportation services, was “performing the same basic function, transporting individuals,”

as that of a common carrier. Id. at 213. The court reasoned that students relied on the school

district to ensure their safety while riding the bus, just as passengers rely on a common carrier.

Id. Accordingly, the court concluded that school districts operating school buses owed their

students the same high degree of care that common carriers owe their passengers. Id. It further

reasoned that “[t]o hold that adults on public transportation buses are entitled to more protection

than the most vulnerable members of our society—namely, children on a school bus—is

ludicrous.” Id.    Accordingly, it reversed the grant of summary judgment on those counts

concerning the school district’s standard of care. Id. at 214. However, the court limited its

holding “to the common-law duty school districts owe student passengers while the students are

being transported on a school bus.” Id.

¶ 30   The one notable difference between our case and Green is that here the school district

contracted out its student busing services. However, we do not find that this difference compels

us to diverge from Green’s core rationale, which is that school children require the highest

standard of care in their transport.

¶ 31   Furthermore, Garrett and Van Cleave support our reliance on Green. In Garrett, the

plaintiff, a high school student, was injured when she tripped over railroad tracks after exiting

the bus. Garrett, 139 Ill. App. 3d at 571. Part of the plaintiff’s complaint against the school

district was that the bus driver negligently failed to provide her a safe place to alight from the

bus. Id. at 573. The school district moved for summary judgment on the basis that it did not




                                              - 10 -
2016 IL App (2d) 150554


owe the plaintiff any further duty once she safely left the bus, and the trial court granted

summary judgment in favor of the district. Id. at 573-74.

¶ 32   On appeal, the court addressed the issue of the school district’s duty. It stated that a

school district engaged in the transportation of students by bus should be held to the same

standard of care as a private party operating as a common carrier. Id. at 575. The rest of the

discussion turned away from a school bus driver’s duty to students while transporting them to the

driver’s duty once they have alighted. Id. at 575-79. In our case, the issue is only whether the

bus driver owed the student a higher duty of care while transporting her, the same issue present

in Green. Therefore, the only relevant takeaway from Garrett is its statement that a transporter

of students owes those students a heightened standard of care. Id. at 575.

¶ 33   Unlike Green and Garrett, Van Cleave directly addressed the duty a private entity owed

the students it transported. In Van Cleave, the plaintiff, a six-year-old boy, alleged that the

defendant, a private transportation company, had operated his school bus negligently, resulting in

his injury. Van Cleave, 344 Ill. App. at 128. After the plaintiff won a jury verdict, the defendant

appealed, and the parties argued whether the defendant was a common carrier. Id. at 129.

However, the Van Cleave court did “not deem it to be controlling whether the defendant was a

common carrier or a private carrier.” Id. Rather, it held that the proper standard of care for any

carrier engaged in the transportation of school children was the highest degree of care. Id. The

court ultimately affirmed the judgment against the defendant. Id. at 132.

¶ 34   Furthermore, we disagree with First Student that there is a difference of opinion in

Illinois on whether a transporter of students owes a heightened standard of care. First Student

cites two cases that it argues stand in opposition to Green and Garrett. In Rockdale School

District, 287 Ill. App. 3d at 795, the court addressed whether the school district was acting as a



                                              - 11 -
2016 IL App (2d) 150554


common carrier and answered the question in the negative. Likewise, in Browne, 356 Ill. App.

3d at 647-48, the court held that the defendant was not acting as a common carrier. Green is

consistent with these cases insofar as the Green court also found that the defendant school

district was not a common carrier. Importantly, however, the Green court did not end its

analysis there. It answered a question that was not present before the courts in Rockdale School

District and Browne but is present here: whether a transporter of students owes them a

heightened duty of care regardless of whether it is classified as a common carrier. To that end,

Rockdale School District and Browne do not aid us, because they examined only whether the

defendants met the definition of a common carrier. Here, plaintiff admits that First Student does

not meet the definition.

¶ 35   Accordingly, we hold that a private busing company owes the students it buses the same

duty of care as a common carrier would. Green clearly holds that common carrier liability can

apply to a school district transporting students, and Van Cleave dispelled the notion that it

matters who is transporting the students—a private entity that transports students is held to the

same high standard of care.

¶ 36   We recognize that the trial court questioned whether this holding was consistent with the

provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Tort

Immunity Act) (745 ILCS 10/1-101 et seq. (West 2014)), and we briefly address this concern. In

particular, the trial court questioned whether it should impose liability for the misconduct of a

school bus driver when school teachers and other employees might not be liable for the same

misconduct. See 745 ILCS 10/3-108 (West 2014) (generally, a public employee who supervises

activities on public property is not liable for an injury unless the employee willfully and

wantonly disregarded his or her supervisory duties).



                                              - 12 -
2016 IL App (2d) 150554


¶ 37   The purpose of the Tort Immunity Act is to protect local public entities and public

employees from liability arising from governmental operations. Village of Bloomingdale v. CDG

Enterprises, Inc., 196 Ill. 2d 484, 490 (2001). It does this by granting immunities, but it does not

create duties. Id. Importantly, the existence of a duty and the existence of an immunity are

separate issues. Id. Only after a court determines that a duty exists does it address whether the

Tort Immunity Act provides immunity for a breach of that duty. Id.

¶ 38   First Student is not a public entity, and therefore the Tort Immunity Act does not directly

apply. Moreover, the issue of liability for school districts, teachers, and employees in the course

of caring for students is not before us; the narrow question before us is what duty a transporter

owes the school children it transports.      Finally, and importantly, we stress the distinction

between finding a duty and applying immunity. Even if the legislature provides an immunity, as

it has for various public employees through the Tort Immunity Act, the initial duty analysis is not

affected. See Barnett v. Zion Park District, 171 Ill. 2d 378, 386-88 (1996) (we still look to the

common law and other statutes to determine legal duty before we examine whether the Tort

Immunity Act provides immunity from liability). In answering the first certified question, we are

concerned only with duty. Accordingly, our decision does not conflict with the provisions or the

intent of the Tort Immunity Act.

¶ 39   Finally, we stress the importance Illinois rightly places on the safety of school children.

Illinois has a public policy favoring the safe transportation of students that is supported by the

courts, the legislature, and our constitution. Board of Education of School District U-46 v.

Illinois Educational Labor Relations Board, 216 Ill. App. 3d 990, 1002 (1991) (“After

thoroughly examining the Constitution, the laws and judicial decisions of this State *** the

inevitable conclusion is that a public policy favoring the safe transportation of school children



                                               - 13 -
2016 IL App (2d) 150554


exists.”); see Chicago Transit Authority v. Amalgamated Transit Union, 399 Ill. App. 3d 689,

698 (2010) (determining that there were well-defined and dominant public policies favoring the

safe and secure transportation of children and the protection of the public, especially juveniles,

from sex offenders). Moreover, the high duty of care a common carrier owes its passengers is

premised on the carrier’s unique control over its passengers’ safety. Sheffer v. Springfield

Airport Authority, 261 Ill. App. 3d 151, 154 (1994). Likewise, a school bus driver is in unique

control over the safety of students because he or she is often the only adult present during the

commute. As the trial court astutely observed, school children are no less vulnerable on a bus

operated by a private contractor than on one operated by a school district. Therefore, there is no

reason to hold a private contractor to a lower standard of care than a school district. Rather,

public policy compels that we impose the highest standard of care on a transporter of students,

regardless of whether that transporter is a private contractor or a public entity. Illinois authority

is clear that our focus is on the safety of the school children, not on the status of the bus driver.

See Green, 381 Ill. App. 3d at 213 (“In fact, holding a school district that buses children to such

a high standard is more compelling than holding a common carrier to the same standard.”).

¶ 40   Accordingly, we answer the first certified question in the affirmative.

¶ 41                       B. Question 2: Whether to Permit Vicarious Liability

¶ 42   Having answered that a private contractor providing student transportation services is

held to a standard of care commensurate with that of a common carrier, we now decide whether

it may be liable for the misconduct, in particular the intentional torts, of its employees outside the

scope of employment.

¶ 43   First Student argues that it may not be held vicariously liable for the misconduct of its

employees outside the scope of employment, regardless of a heightened standard of care. It



                                                - 14 -
2016 IL App (2d) 150554


argues that sexual assault is outside the scope of employment because such an act is either

personally motivated or highly unusual and bears no relation to a bus driver’s job. See Deloney

v. Board of Education of Thornton Township, 281 Ill. App. 3d 775, 784 (1996) (“In the context

of respondeat superior liability, the term ‘scope of employment’ excludes conduct by an

employee that is solely for the benefit of the employee.”).

¶ 44   First Student continues that both Illinois case law and the Restatement (Second) of

Agency (Restatement) disfavor vicarious liability of an employer for a sexual assault by its

employee. See Webb v. Jewel Cos., 137 Ill. App. 3d 1004, 1008 (1985) (sexual molestation of

young girl by security guard bore no relation to employer’s business, and the employer could not

be liable); Restatement (Second) of Agency § 231 cmt. a (1958) (explaining that the magnitude

of the crime matters; serious crimes are not expected and therefore not in the scope of

employment). Moreover, First Student argues that Illinois courts have consistently found that

school districts are not liable for misconduct outside the scope of employment of teachers,

coaches, and staff in the course of caring for children. See Doe v. Lawrence Hall Youth Services,

2012 IL App (1st) 103758, ¶ 30 (sexual assault was outside the scope of employment and could

not be imputed to the school under the doctrine of respondeat superior); Mueller v. Community

Consolidated School District 54, 287 Ill. App. 3d 337, 344-45 (1997) (school district could not

be vicariously liable for coach’s sexual assault of a student). First Student also cites the dissent

in Green, which disagreed with the majority that a common carrier could be vicariously liable for

the intentional torts of its employees. Green, 381 Ill. App. 3d at 216-18 (Cook, J., dissenting).

¶ 45   Plaintiff responds that Illinois courts have long held that a common carrier is liable for

the acts of its employees even if those acts are outside the scope of employment, citing Chicago

& Eastern R.R. Co. v. Flexman, 103 Ill. 546 (1882). Plaintiff argues that two more recent cases



                                               - 15 -
2016 IL App (2d) 150554


follow Flexman and support the imposition of vicarious liability: Green, 381 Ill. App. 3d at 213,

and Dennis, 2014 IL App (1st) 132397, ¶ 16. Plaintiff argues that, in Dennis, the plaintiff sued

the defendant bus company under a theory of respondeat superior, alleging sexual assault by one

of its bus drivers. Id. ¶¶ 1-2. The defendant argued that it could not be liable for a sexual assault

by its employee, because sexual assault was not within the scope of employment. Id. ¶ 18.

Citing Flexman, the Dennis court rejected this argument because common-carrier liability

extended to employees’ intentional acts outside the scope of employment. Id. Plaintiff continues

that the Green court came to the same conclusion—the school district could be liable for the bus

driver’s acts outside the scope of employment. Green, 381 Ill. App. 3d at 213.

¶ 46   We agree with plaintiff and answer the second question in the affirmative: A private

contractor may be liable for the sexual assault of a student by its employee who is transporting

the student, even though sexual assault, by its very nature, is outside the scope of employment.

However, we note that, although this liability functions as vicarious liability, we do not rely on a

theory of respondeat superior. Instead, we rely on a common carrier’s nondelegable duty. We

explain as follows.

¶ 47   Green is one of the most recent Illinois cases to address whether a common carrier (or an

employer acting as one) may be liable for its employee’s acts outside the scope of employment.

We have already discussed Green in answering the first certified question (supra ¶ 29), and have

explained that it supports imposing a heightened standard of care on a transporter of students.

Green further held that “a common carrier can be liable for the intentional acts of its employees

even if the intentional act is outside the employee’s scope of employment and does not benefit

the employer.” Green, 381 Ill. App. 3d at 213.




                                               - 16 -
2016 IL App (2d) 150554


¶ 48   First Student argues that the Green majority erred in permitting vicarious liability for an

employee’s intentional tort outside the scope of employment, and it relies on Justice Cook’s

dissent.   Justice Cook stated that vicarious liability for misconduct outside the scope of

employment does not necessarily follow from a common carrier’s heightened duty. Id. at 217

(Cook, J., dissenting).    Justice Cook took issue with the majority’s reliance on Flexman,

suggesting that it was unclear whether the employee in Flexman was acting within the scope of

employment. Id. Moreover, he asserted that “[w]hatever the holding in Flexman, Illinois now

follows the Restatement, which would not impose vicarious liability for acts outside the scope of

employment.” Id. (citing Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 163-65 (2007)).

¶ 49   Upon an examination of Flexman, we disagree with Justice Cook that it was uncertain

whether the employee was acting within the scope of employment. The pertinent facts in

Flexman are as follows. The plaintiff, a passenger on a railcar, lost his watch on the train.

Flexman, 103 Ill. at 548. With the permission of the conductor, after arriving at his intended

destination he remained on the train to continue searching for his watch. Id. Another passenger

assisted the plaintiff in his search, and, while helping, the other passenger asked the plaintiff who

he thought had his watch. Id. The plaintiff replied “ ‘[t]hat fellow,’ ” and pointed to the

brakeman, whereupon the brakeman swung a railroad lantern into the plaintiff’s face. Id. at 549.

Given these simple facts, we cannot say that striking a passenger in the face with a blunt object

was within the scope of employment, even in 1882. Rather, the brakeman had committed a

battery at the suggestion that he was a crook. Accordingly, the holding in Flexman clearly

allows vicarious liability for a common carrier in instances where the employee acted outside the

scope of employment.




                                               - 17 -
2016 IL App (2d) 150554


¶ 50   Moreover, Flexman is supported by the Restatement, which provides exceptions to the

general rule that an employer is not liable for an employee’s acts outside the scope of

employment. Restatement (Second) of Agency § 219 (1958). The Restatement provides:

              “(1) A master is subject to liability for the torts of his servants committed while

       acting in the scope of their employment.

              (2) A master is not subject to liability for the torts of his servants acting outside

       the scope of their employment, unless:

                       (a) the master intended the conduct or the consequences, or

                       (b) the master was negligent or reckless, or

                       (c) the conduct violated a non-delegable duty of the master, or

                       (d) the servant purported to act or to speak on behalf of the principal and

              there was reliance upon apparent authority, or he was aided in accomplishing the

              tort by the existence of the agency relation.” (Emphases added.) Id.

In other words, the Restatement provides that, if the conduct of an employee violates a

nondelegable duty of the employer, the employer may be liable regardless of whether the

employee’s misconduct took place within the scope of employment.

¶ 51   The Restatement is consistent on this point, stating that a principal that owes a

nondelegable duty of care to others may be liable for harm caused to others by its agents, even

for conduct committed outside the scope of employment.          Restatement (Second) of Agency

§ 214 cmt. a (1958).     The Restatement provides the following illustration: “P, a railroad,

employs A, a qualified conductor, to take charge of a train. A assaults T, a passenger. P is

subject to liability to T.” Restatement (Second) of Agency § 214 cmt. e, illus. 3 (1958). This




                                               - 18 -
2016 IL App (2d) 150554


illustration closely matches the fact pattern of Flexman. It also closely resembles the scenario

presented in the case before us.

¶ 52   Importantly, Illinois courts recognize that a common carrier’s high duty of care is a

nondelegable duty. See Mueller, 287 Ill. App. 3d at 345; Gordon v. Chicago Transit Authority,

128 Ill. App. 3d 493, 501 (1984); see also Jardine v. Rubloff, 73 Ill. 2d 31, 45 (1978) (explaining

that jury finding of negligence by the common carrier but not the other party could be explained

by the difference in duty—the common carrier had nondelegable duty to exercise highest care,

whereas the other party had to exercise only ordinary care). We have already established that a

private transporter of students owes the same duty of care as a common carrier. Therefore, it

owes a nondelegable duty of care and, consistent with Flexman, Green, and the Restatement, an

employer with a nondelegable duty of care is liable for an employee’s misconduct outside the

scope of employment.

¶ 53   First Student counters that the nondelegable duty of a common carrier does not extend to

the situation here, because, per Mueller, sexual assault is not related to the operation of a bus per

se. Mueller, 287 Ill. App. 3d at 345. However, First Student’s reliance on Mueller is misplaced

because the sexual assault in Mueller did not occur while the employee was transporting the

student. In Mueller, the school employee was a wrestling coach who would customarily drive

various team members home. After one practice, the coach drove the plaintiff, one of the team

managers, to the coach’s home to work on the personnel roster. Id. at 339. The plaintiff alleged

that the coach then sexually assaulted her at his home. Id. The court never analyzed whether the

coach was acting as a common carrier, but it assumed that, even if the coach had been acting as a

common carrier via his “ ‘substitute driver’ ” role, the school could not be held vicariously liable.

Id. at 344-45. The court recognized that a common carrier has a nondelegable duty of care, but it



                                               - 19 -
2016 IL App (2d) 150554


would not extend the duty to “situations where, as here, it is not the operation of the bus per se

that resulted in injury.” Id. at 345.

¶ 54    The issue faced in Mueller is comparable to the primary issue in Garrett—that is, what

duty the bus driver owed students after they had alighted from the bus. In Garrett, the court

explained that a common carrier’s heightened standard of care did not extend beyond the

operation of the bus per se, such that the duty to render that degree of care terminated when the

student had alighted and reached the shoulder of the road, a reasonable place of safety. Garrett,

139 Ill. App. 3d at 578. To wit, “[o]nce a passenger has safely alighted, the carrier owes only a

duty of ordinary care.” Id. at 575. Mueller is similar to Garrett insofar as the injury took place

after transportation was complete. In other words, the coach in Mueller was not acting as a

carrier when the injury occurred, and the unique protections afforded to passengers of a common

carrier did not apply. Mueller, 287 Ill. App. 3d at 345 (explaining that a common carrier has the

duty to operate a bus with the highest degree of care, but the duty does not extend to situations

where it was not the operation of the bus per se that resulted in the injury). Here, because the

alleged sexual assault took place on the bus while Sanchez was acting as a bus driver, Mueller

does not control. Rather, Green and Flexman control, and, as discussed, both would permit

vicarious liability.

¶ 55    Tying everything together, we hold that: Illinois courts recognize that common carriers

owe their passengers a heightened duty of care; a private contractor transporting students is, for

all intents and purposes, acting as a common carrier; a common carrier’s heightened duty of care

is nondelegable; and an employer may be liable for its employees’ misconduct outside the scope

of employment if it has a nondelegable duty of care. To hold otherwise would be an unjustified

departure from our precedent since Flexman. A contrary holding would also conflict with the



                                              - 20 -
2016 IL App (2d) 150554


strong Illinois public policy to ensure the safety of school children on buses.           Permitting

vicarious liability in this situation promotes the utmost care by school districts in contracting for

student busing services.

¶ 56   For all these reasons, we hold that a private contractor may be liable for an employee’s

sexual assault of a student he transports, even though such a sexual assault is outside the scope of

employment.

¶ 57   The second certified question is answered in the affirmative.

¶ 58                                    III. CONCLUSION

¶ 59   We answer both certified questions in the affirmative: (1) a private contractor for student

busing services owes passengers the same high duty of care as a common carrier; and (2) a

private contractor for student busing services may be liable for an employee’s sexual assault of a

passenger, even though it is outside the scope of employment, because the contractor owes its

passengers a nondelegable duty of care. The trial court’s January 21, 2015, order denying First

Student’s combined motion to dismiss is affirmed, and we remand the cause for further

proceedings consistent with our answers.

¶ 60   Certified questions answered; order affirmed; cause remanded.




                                               - 21 -
