Filed 3/28/08               NO. 4-07-0297

                       IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

MISTY GREEN,                           )    Appeal from
          Plaintiff-Appellant,         )    Circuit Court of
          v.                           )    Macoupin County
CARLINVILLE COMMUNITY UNIT SCHOOL      )    No. 05L7
DISTRICT NO. 1,                        )
          Defendant-Appellee,          )
          and                          )    Honorable
LUCILLE MANSFIELD,                     )    Roger W. Holmes,
          Defendant.                   )    Judge Presiding.
______________________________________________________________

            JUSTICE STEIGMANN delivered the opinion of the court:

            In February 2005, plaintiff, Misty Green, sued defen-

dants Carlinville Community Unit School District No. 1 (District)

and Lucille Mansfield, based on Green's allegation that Mansfield

sexually abused her when Green was a minor.     In July 2006, the

District moved for summary judgment, and in November 2006, the

trial court granted the District's motion.

            Green appeals, arguing that the trial court erred by

granting the District's motion for summary judgment.     We affirm

in part and reverse and remand in part with directions.

                            I. BACKGROUND

            From August 1991 through May 1992, Green attended

kindergarten at North Elementary, which was operated by the

District.    Green rode the District's school bus to and from

school.   In September 1991, Green told her mother that Mansfield,
a school bus driver employed by the District, had sexually

molested her.   In May 1992, Mansfield was convicted of three

counts of child abuse and sentenced to four years in prison.

          In September 1992, Green's parents, along with six

other families, collectively filed a complaint in federal dis-

trict court against the District (case No. 92-3238).     Their

complaint alleged that over the course of several months,

Mansfield sexually abused and assaulted their children.     The

District filed a motion to dismiss, arguing in part that it was

not liable for the intentional torts of Mansfield because the

District was not a common carrier.     In July 1993, the federal

court denied the District's motion upon determining that Illinois

courts had previously held that school districts that transport

children by bus must be held to the same standard of care as

common carriers.   Hammann v. Carlinville Community Unit School

District No. 1, No. 92-3238 (C.D. Ill. July 8, 1993).     However,

prior to trial, Green's parents voluntarily withdrew their

complaint, and the federal court dismissed their case without

prejudice.   Hammann v. Carlinville Community Unit School District

No. 1, No. 92-3238 (C.D. Ill. April 8, 1994).

          In February 2005, Green filed a complaint against the

District and Mansfield.   Green alleged that the District (1)

engaged in intentional infliction of emotional distress (count

I), (2) committed assault and battery (count III), (3) was


                               - 2 -
negligent per se (count V), (4) negligently hired Mansfield

(count VI), (5) engaged in negligent supervision (count VII), and

(6) was a common carrier (count VIII).   All of the counts against

the District were primarily premised on count VIII's allegation

that the District was a common carrier and, thus, "had a non-

del[e]gable duty of care towards its passengers, with such duty

to retain direct and primary responsibility for operating the bus

with the highest degree of care."    However, during the course of

the trial court proceedings, Green also argued that the District

owed its student bus passengers the highest degree of care,

regardless of whether it was a common carrier.

          In April 2005, the District filed a motion to dismiss

Green's complaint arguing, in part that (1) it was not a common

carrier and (2) the complaint placed a greater duty on the

District than that imposed by law.

          Following an August 2005 hearing, the trial court

denied the District's motion upon determining that the 1992

federal court ruling denying the District's motion to dismiss

should be given great weight since Green was a party to the

federal action at the time of the federal court's ruling.    The

court also found that the District's standard of care, rather

than its status as a common carrier, governed the court's review

of the complaint.

          In December 2005, the case was reassigned to another


                              - 3 -
trial judge.   In July 2006, prior to any District representative

being deposed, the District filed a motion for summary judgment,

arguing that (1) the District was not operating as a common

carrier; (2) Mansfield was not acting within the scope of her

employment when the alleged conduct occurred; (3) the statute

mandating that school districts perform criminal-background

checks before hiring an employee (105 ILCS 5/34-18.5 (West

2006)), which Green relied on in count V of her complaint, was

not in effect when the District hired Mansfield; (4) the District

had immunity over its hiring decisions, pursuant to section 2-201

of the Local Governmental and Governmental Employees Tort Immu-

nity Act (745 ILCS 10/2-201 (West 2006)); and (5) no factual

support existed that the District negligently supervised

Mansfield when she was acting within the scope of her employment.

The District's affidavit in support of its motion stated that the

purpose of the District's buses was to transport registered

District students to and from school and school-related

activities.

          In November 2006, the trial court granted the

District's motion for summary judgment.   In so doing, the court

determined that (1) each of Green's counts against the District

was premised on the allegation that the District was a common

carrier, which imposes a heightened duty of care, (2) the

District was not a common carrier, and (3) Green's negligence per


                               - 4 -
se allegations against the District failed because the statute

Green relied on was not in effect when the District hired

Mansfield.    The court later found that no just reason existed to

delay either enforcement or appeal of its ruling (210 Ill. 2d R.

304(a)).

            This appeal followed.

                            II. ANALYSIS

                        A. Standard of Review

            We review de novo a trial court's decision to grant a

motion for summary judgment.    Jones v. Chicago HMO Ltd. of

Illinois, 191 Ill. 2d 278, 291, 730 N.E.2d 1119, 1127 (2000).        A

party is entitled to summary judgment if the pleadings,

depositions, and admissions on file, together with any

affidavits, show that no genuine issue of material fact exists

and the moving party is entitled to a judgment as a matter of law

(735 ILCS 5/2-1005 (West 2006)).

           B. The Trial Court's Grant of Summary Judgment
                     as to Counts I, III, and VII

            Green first argues that the trial court erred by

granting summary judgment as to count I (intentional infliction

of emotional distress), count III (assault and battery), and

count VII (negligent supervision).      Specifically, she contends

that (1) the court erred by determining that the District was not

acting as a common carrier, which imposes a heightened duty of

care; and (2) even if the District was not acting as a common

                                - 5 -
carrier, it should be held to the same standard as a common

carrier.   We agree with Green's second contention.

           1. The Trial Court's Determination That the
            District Was Not Acting as a Common Carrier

           In Doe v. Rockdale School District No. 84, 287 Ill.

App. 3d 791, 793-94, 679 N.E.2d 771, 773 (1997), the Third

District discussed the distinction between common and private

carriers, as follows:

                "Long-standing authority in Illinois has

           held that a common carrier is 'one who

           undertakes for the public to transport from

           place to place such persons or the goods of

           such as choose to employ him for hire.'

           [Citations.]   A common carrier 'undertakes

           for hire to carry all persons indifferently

           who may apply for passage so long as there is

           room and there is no legal excuse for

           refusal.'   [Citation.]    Moreover, a common

           carrier may be liable for an unexcused

           refusal to carry all who apply.     [Citation.]

           The definitive test to be employed to

           determine if a carrier is a common carrier is

           whether the carrier serves all of the public

           alike.   [Citations.]

                A private carrier, by contrast,

                                   - 6 -
           undertakes by special agreement, in a

           particular instance only, to transport

           persons or property from one place to another

           either gratuitously or for hire.   [Citation.]

           A private carrier makes no public profession

           to carry all who apply for carriage,

           transports only by special agreement, and is

           not bound to serve every person who may

           apply."

           In Doe, the plaintiff sued the Rockdale School

District, alleging that another student sexually assaulted her

son on a school bus while traveling to school.     After denying the

Rockdale School District's motion to dismiss, the trial court

presented the following certified question to the appellate

court:   "whether the defendant providing transportation to

students to and from special[-]education classes out of county

pursuant to contract with Crawford Bus Service, Inc. (Crawford),

is operating as a common carrier."     Doe, 287 Ill. App. 3d at 793,

679 N.E.2d at 772.

           The Third District concluded that the contract between

the Rockdale School District and Crawford did not provide for the

transportation of any additional passengers or cargo by Crawford

other than the school district's special-education students.

Accordingly, the court stated the following:


                               - 7 -
               "Given the total absence of any

          allegation that Crawford either held itself

          out to, or in fact did, serve the general

          public or any members thereof except those

          students it contracted to carry, we are

          compelled to agree that Crawford, and by

          extension any principal of Crawford [i.e.,

          Rockdale], was acting as a private carrier

          [and not a common carrier] when the alleged

          injury occurred."   Doe, 287 Ill. App. 3d at

          795, 679 N.E.2d at 774.

          In this case, Green did not allege that the District

(1) advertised its bus services to members of the general public

or (2) transported all members of the general public in a

indiscriminate manner.   Further, according to the District's

unrebutted affidavit, the District only transported its students

to and from school and school-related activities.    Thus, we

conclude that the trial court did not err by determining that the

District was not acting as a common carrier.

      2. Green's Claim That the District Should Be Held to
           the Same Standard of Care as a Common Carrier

          Besides not being a common carrier, the District argues

that Green cannot overcome the fact that under Illinois law an

employer is not vicariously liable for acts of its employees that

were not within the scope of their employment or performed for

                               - 8 -
their employer's benefit.   Ordinarily, employers are not liable

for the acts of their employees if the employee's acts were not

committed within the scope of his or her employment.     Pyne v.

Witmer, 129 Ill. 2d 351, 359, 543 N.E.2d 1304, 1308 (1989).      "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."    Deloney v. Board of Education of

Thornton Township, 281 Ill. App. 3d 775, 784, 666 N.E.2d 792, 798

(1996).   "[G]enerally, acts of sexual assault are outside the

scope of employment."   Deloney, 281 Ill. App. 3d at 783, 666

N.E.2d at 798.

           Exceptions to this general rule do exist, and one such

exception involves common-carrier liability.   Our supreme court

has long held that if an employee of a common carrier

intentionally injures a passenger, the common carrier is liable

for the passenger's injuries, even if the employee's actions were

not in his actual or apparent scope of authority.    Chicago &

Eastern R.R. Co. v. Flexman, 103 Ill. 546, 552 (1882).    Thus, 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.    Under

this long-standing Supreme Court of Illinois precedent, a common

carrier could be liable for the sexual assault of one of its

passengers by one of its employees.


                                - 9 -
           As we previously stated, a school district that

operates buses to transport its students is not a common carrier.

However, it is performing the same basic function, transporting

individuals.   Like a passenger on a common carrier, a student on

a school bus cannot ensure his or her own personal safety but

must rely on the school district to provide fit employees to do

so.   Accordingly, we conclude that school districts that operate

school buses owe their students the highest degree of care to the

same extent common carriers owe their passengers the highest

degree of care.   To 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.   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.

           We are not the first Illinois court to hold that a

school district that transports its students by bus owes the

student passengers the highest degree of care.   In Garrett v.

Grant School District No. 124, 139 Ill. App. 3d 569, 575, 487

N.E.2d 699, 702 (1985), the Second District held that a school

district that transports its students by bus should be held "to

the same standards of care as that imposed on a private party

operating as a common carrier."

           The District suggests that this court should not follow


                              - 10 -
Garrett because (1) Doe somehow overruled Garrett and (2) Garrett

dealt with a negligent act, not an intentional one, as in this

case.   We are unpersuaded.

           We first note that we would have reached the same

decision based on the reasons stated above even if Garrett had

never been decided.    Further, we are not persuaded that Doe

overruled Garrett.     The sole question answered in Doe was whether

a school district that provided transportation to and from

classes was a common carrier (Doe, 287 Ill. App. 3d at 793, 679

N.E.2d at 772), not what standard of care applies to a school

district operating a bus for its students.    In addition, whether

the school bus passenger suffered his injury as a result of

negligence or an intentional act is irrelevant.

           The District also contends that it should be treated

differently than a private party because it is a public,

governmental entity.    In this regard, the District points out

that the duty it owes to students being transported on its school

buses is a public-policy decision better left to the Illinois

General Assembly.

           While common-law rules may not impose liability on a

public entity where the Tort Immunity Act applies (Floyd v.

Rockford Park District, 355 Ill. App. 3d 695, 704, 823 N.E.2d

1004, 1012 (2005)), that is not the issue before us.    Here, this

court has a duty to determine what common-law duty a school


                                - 11 -
district owes to its student passengers when they are being

transported on the school district's bus.

          Defendant is free to argue on remand that it has

immunity as a public body, regardless of its common-law duty, or

to lobby the General Assembly, the policymaking body of the

State, to specifically make school districts immune from future

claims of this type.   The legislature may determine, for sound

policy reasons, that school districts should not be held to this

standard of care.   However, as we decide the case before us, we

must do so in the context of the law as it now stands, not as

policymakers may change it.

          We thus conclude that the trial court erred by granting

summary judgment on count I (intentional infliction of emotional

distress), count III (assault and battery), and count VII

(negligent supervision), based on its determination that because

the District was not a common carrier, it did not owe Green the

highest degree of care that a common carrier would have owed her.

             3. Scope of Our Holding on This Issue

          Our holding on this issue is limited to the common-law

duty school districts owe student passengers while the students

are being transported on a school bus.   It neither enhances nor

weakens the duties school districts already owe their students in

other circumstances.




                              - 12 -
     C. The Trial Court's Rulings on Counts V, VI, and VIII

                     1. Count V--Negligence Per Se

          Green also argues that the trial court erred by

granting summary judgment as to count V.    We agree.

          Count V alleged that the District negligently and

carelessly failed to perform proper criminal, child abuse, and

neglect investigations of Mansfield, pursuant to section 34-18.5

of the School Code (105 ILCS 5/34-18.5 (West 2002)).     In its

memorandum in support of its motion for summary judgment, the

District argued that Mansfield was hired in 1987 before this

statute took effect.    However, the trial court stated the

District hired Mansfield many years before the statute became

effective in 1985.    Thus, a question of fact remains regarding

when the District hired Mansfield--before 1985 or in 1987.

                     2. Count VI--Negligent Hiring

          Green also argues that the trial court erred by

granting summary judgment as to count VI (negligent hiring).      The

District responds that it has immunity under section 2-201 of the

Tort Immunity Act (745 ILCS 10/2-201 (West 2006)).      We agree with

Green.

          Section 2-201 provides as follows:

               "Except as otherwise provided by

          [s]tatute, a public employee serving in a

          position involving the determination of


                                - 13 -
          policy or the exercise of discretion is not

          liable for an injury resulting from his act

          or omission in determining policy when acting

          in the exercise of such discretion even

          though abused." 745 ILCS 10/2-201 (West

          2006).

The District claims that because its decision to hire Mansfield

was discretionary, it has immunity under section 2-201.   See

Johnson v. Mers, 279 Ill. App. 3d 372, 380, 664 N.E.2d 668, 675

(1996) (village's decision to hire a police officer was

discretionary).

          Green cites Mueller v. Community Consolidated School

District 54, 287 Ill. App. 3d 337, 678 N.E.2d 660 (1997), for the

proposition the Tort Immunity Act does not apply to the negligent

hiring claim alleged in count VI.    In Mueller, the First District

stated as follows:

                  "[S]ection 2-201 gives government

          entities immunity from liability for injuries

          resulting from exercise of discretionary

          authority.    Here the School District's

          discretion is fettered by the criminal-

          background-check statute.      The statute

          provides that the School District 'shall not

          knowingly employ a person for whom a criminal


                                - 14 -
          background investigation has not been

          initiated.'    105 ILCS 5/34-18.5(d) (West

          1994).    Given the statute's mandatory

          language, we find that it requires the School

          District to at least commence an

          investigation of employment applicants before

          it is vested with the discretionary authority

          to hire.    We therefore conclude that the

          School District's failure to comply with the

          statutorily imposed condition precedent

          vitiates any immunity it might otherwise have

          enjoyed under section 2-201 of the Tort

          Immunity Act for hiring [its employee]."

          Mueller, 287 Ill. App. 3d at 346, 678 N.E.2d

          at 666.

          We agree with Mueller.     However, as stated earlier, a

question of fact remains as to when the District hired Mansfield.

Thus, we cannot determine whether the District would have

immunity under the Tort Immunity Act.    Accordingly, we conclude

that the trial court erred by granting the District's motion for

summary judgment as to count VI.

                     3. Count VIII--Common Carrier

          Last, Green argues that the trial court erred by

granting summary judgment as to count VIII.    We disagree.


                                - 15 -
           The trial court did not err by granting summary

judgment as to this count, in which Green alleged a separate

cause of action based on the District's status.   First, as

earlier discussed, the District was not operating as a common

carrier.   Second, even if the District was so operating, this

only created a heightened duty of care for its passengers, not a

separate cause of action based merely on that status.

                          III. CONCLUSION

           For the reasons stated above, we affirm the trial

court's judgment as to count VIII, reverse as to counts I, III,

V, VI, and VII, and remand for further proceedings.   We also

direct the trial court to allow Green to amend her complaint,

eliminating all references to the District being a common

carrier.

           Affirmed in part and reversed in part; cause remanded

with directions.

           KNECHT, J., concurs.

           COOK, J., dissents.




                                 - 16 -
- 17 -
          JUSTICE COOK, dissenting:

          I respectfully dissent.    I would affirm the decision of

the trial court, granting summary judgment on counts I, III, V,

VI, VII, and VIII.

   A. Vicarious Liability--Counts I (Intentional Infliction of
Emotional Distress) and III (Assault and Battery)

          The majority concludes that the District, in the

operation of its school bus program, was not acting as a common

carrier because it did not hold itself out to serve or, in fact,

serve the general public.    The majority goes on, however, to

create a new "common carrier" rule that would apply to school

districts.    One problem with that approach is that even common

carriers are not vicariously liable for the intentional or

criminal acts of their employees unless those acts are within the

scope of employment, clearly not the case here.    Common carriers,

unlike other actors, have a duty to come to the aid or protection

of others, but that duty is not the same as vicarious liability.

The majority improperly equates the vicarious liability of

employers with common-carrier liability.

          Under the theory of respondeat superior, an employer

can be vicariously liable for the torts of an employee, but only

for those torts that are committed within the scope of

employment.    The employer's vicarious liability extends even to

the intentional or criminal acts of its employees when such acts

are committed within the scope of employment.     Bagent v. Blessing

                               - 18 -
Care Corp., 224 Ill. 2d 154, 163-64, 862 N.E.2d 985, 991 (2007).

Conduct is within the scope of employment only if it is actuated,

at least in part, by a purpose to serve the master.    Restatement

(Second) of Agency §228, at 504 (1958).    Summary judgment was

appropriate in Bagent where no reasonable person could conclude

that an employee was acting within the scope of employment.

Bagent, 224 Ill. 2d at 170-71, 862 N.E.2d at 995 (hospital

employee disclosed medical information to patient's sister in a

tavern).

           Common carriers have duties that others do not have.

Generally speaking, Illinois law does not impose a duty to

protect another from a criminal attack by a third person unless

the attack is reasonably foreseeable and the parties stand in one

of four "special relationships," namely:    (1) common carrier and

passenger, (2) innkeeper and guest, (3) business invitor and

invitee, and (4) voluntary custodian and protectee.    Hernandez v.

Rapid Bus Co., 267 Ill. App. 3d 519, 524, 641 N.E.2d 886, 890

(1994), citing Restatement (Second) of Torts §314A (1965).    In

Hernandez, a student was raped by a special[-]education student

as she walked unescorted from a bus to the school.    The First

District reversed summary judgment for the bus company because

the company may have been aware that some of the special[-

]education students riding its bus with this student had

propensities toward violent and criminal behavior.    The common-


                              - 19 -
carrier relationship did not apply in Hernandez because the

student had exited the bus safely, but the court applied a

similar rule that applied to voluntary undertakings.     Hernandez,

267 Ill. App. 3d at 524-25, 641 N.E.2d at 890-91.

           The majority cites an 1882 case, Flexman, for the

proposition that an employer is vicariously liable for the

intentional acts of its employees outside the scope of

employment, if the employer is a common carrier.    Slip op. at 8-

9.   The employee in Flexman may have been acting within the scope

of employment, helping a passenger look for his watch, when an

altercation developed.   Flexman, 103 Ill. at 548-49.    Even

intentional torts may be so reasonably connected with the

employment as to be within its "scope."   W. Prosser & W. Keeton,

Torts §70, at 505 (5th ed. 1984).   An employer will be held

liable where his bus driver crowds a competitor's bus into a

ditch or assaults a trespasser to eject him from the bus.       A

railway ticket agent who assaults, arrests, or slanders a

passenger, in the belief that he has been given a counterfeit

bill for a ticket, is within the scope of his employment.       But if

the employee acts from purely personal motives, he is considered

in the ordinary case to have departed from his employment, and

the master is not liable.   W. Prosser & W. Keeton, Torts §70, at

506 (5th ed. 1984).   Whatever the holding in Flexman, Illinois

now follows the Restatement, which would not impose vicarious


                              - 20 -
liability for acts outside the scope of employment.   Bagent, 224

Ill. 2d at 163-65, 862 N.E.2d at 991-92.

          The majority cites Garrett, which stated that a school

district engaged in the transportation of students by bus would

be held to the same standard of care as that imposed on a private

party operating as a common carrier.   Garrett, 139 Ill. App. 3d

at 575, 487 N.E.2d at 702.   Garrett did not, however, address the

vicarious liability of a school district for the actions of its

driver.   Garrett instead addressed the carrier's duty to protect

passengers, despite the general rule that there is no duty to act

for the protection of others, a duty which does not terminate

until the passenger has had a reasonable opportunity to reach a

place of safety.   Garrett, 139 Ill. App. 3d at 575-78, 487 N.E.2d

at 702-05; see Restatement (Second) of Torts §314A (1)(a) (1965).

The complaint in Garrett was that the bus driver had dropped the

student off near a railroad track, where she eventually fell.

The question did not concern the actions of the bus driver but

the actions of the district, which had a duty to select a

discharge point that did not "'needlessly expose the pupils to

any serious hazards to safety exceeding those which normally

attend school bus operations.'"   Garrett, 139 Ill. App. 3d at

576, 487 N.E.2d at 703, quoting Posteher v. Pana Community Unit

School District No. 8, 96 Ill. App. 3d 709, 713, 421 N.E.2d 1049,

1052 (1981).


                              - 21 -
          The trial court properly entered summary judgment on

counts I and III.    Even assuming the District was a common

carrier, the District could only be held liable for acts of its

employee that were within the scope of employment.    No reasonable

person could conclude the acts here were within the scope of

employment.

     B. Direct Liability--Counts VI (Negligent Hiring) and
                   VII (Negligent Supervision)

          Apart from vicarious liability, the school district may

be responsible for its own negligence if it knew or should have

known of the necessity and opportunity for controlling its

servant to prevent the servant from intentionally harming others.

Hills v. Bridgeview Little League Ass'n, 195 Ill. 2d 210, 229,

745 N.E.2d 1166, 1179 (2000), quoting Restatement (Second) of

Torts §317 (1965).    To establish this claim of direct negligence,

plaintiffs do not have to show that the attack was committed

within the scope of employment.    Plaintiffs must show, however,

that the employer knew or had reason to know of the need to

control the servant and negligently failed to act on that

information.     Hills, 195 Ill. 2d at 231-32, 745 N.E.2d at 1180.

"Under a theory of negligent hiring or retention, the proximate

cause of the plaintiff's injury is the employer's negligence in

hiring or retaining the employee, rather than the employee's

wrongful act."    Van Horne v. Muller, 185 Ill. 2d 299, 311, 705

N.E.2d 898, 905 (1998).    In a case where a kindergarten student

                                - 22 -
was sexually abused by a school bus driver, a directed verdict in

favor of the bus company was affirmed where there was no evidence

the company knew or should have known the hiring would create a

danger of harm to third persons.    Giraldi v. Community

Consolidated School District No. 62, 279 Ill. App. 3d 679, 692,

665 N.E.2d 332, 340 (1996) (First District).

            The trial court here properly dismissed counts VI and

VII because there are no allegations that the District had any

knowledge that the bus driver had any propensity to commit these

acts or that there was a danger of harm to students.

                    C. Negligence per se--Count V

            Count V alleges negligence as a matter of law arising

from a statutory violation.    Count V alleges that the District

failed to perform a criminal background investigation as required

by section 34-18.5.    However, that section does not apply to the

District.    The section is contained within article 34 of the

School Code, which only applies to cities of over 500,000

inhabitants (105 ILCS 5/34-1 through 34-129 (West 2006)).     The

section that does apply to the District, section 10-21.9(a),

excepts school bus driver applicants, at least after its 1995

amendment.   105 ILCS 5/10-21.9(a) (West 2006).     Another

paragraph, section 10-21.9(f), was amended effective January 1,

1990, to add the following words:

                 "After January 1, 1990[,] the provisions


                               - 23 -
          of this Section shall apply to all employees

          of persons or firms holding contracts with

          any school district including, but not

          limited to, food service workers, school bus

          drivers and other transportation employees,

          who have direct, daily contact with the

          pupils of any school in such district."   Pub.

          Act 86-411, §1, eff. January 1, 1990 (1990

          Ill. Laws 2549, 2552).

Section 10-21.9(a) was then amended, effective July 1, 1995, to

add the words "except school bus driver applicants."    Pub. Act

88-612, §5, eff. July 1, 1995 (1995 Ill. Laws 1325, 1326).

          In any event, even though there is no question there

has been a breach of duty in a negligence per se action, a

plaintiff must still show that the defendant's violation of the

statute proximately caused the injury.   Price v. Hickory Point

Bank & Trust, 362 Ill. App. 3d 1211, 1216-17, 841 N.E.2d 1084,

1089 (2006).   No evidence in this case suggests that a criminal

background check of the bus driver would have disclosed any

information that would have placed the District on notice.    See

Browne v. SCR Medical Transportation Services, Inc., 356 Ill.

App. 3d 642, 649, 826 N.E.2d 1030, 1036 (2005) (even if the

transportation company had complied with the statute, the company

would not have learned of the driver's prior arrests); Giraldi,


                              - 24 -
279 Ill. App. 3d at 692, 665 N.E.2d at 340 (only thing which

could have been known was that driver had a tendency to be late;

failure to investigate not a proximate cause of sexual attack on

a student).




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