Two questions were certified for immediate appeal to the Illinois Appellate Court in a case against a school bus company, First Student Inc. The case was brought on behalf of a student who alleged that the misconduct of a driver accused of sexually abusing a student could put the corporation owner at a heightened duty of care to the child.
“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,” the Second District Illinois Court of Appeals concluded.
The court considered this other question: “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?”
In ruling for the plaintiff on the second question, the appellate court concluded “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.”
First Student argued that it should not be held vicariously liable for the misconduct of its employees, regardless of a heightened standard of care. It argued 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.
First Student continued that Illinois case law and the Restatement (Second) of Agency disfavor vicarious liability of an employer for a sexual assault by its employee. Webb v. Jewel Cos., 137 Ill.App.3d 1004 (1985). In the Webb case, the young girl was molested by a security guard that bore no relation to the employer’s business, and the employer could not be liable the court held.
Furthermore, First Student argued 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. Doe v. Lawrence Hall Youth Services, 2012 IL App (1st) 103758. The Doe v. Lawrence Hall Youth Services case was cited to support First Student’s argument that sexual assault is outside the scope of employment.
The plaintiff in this case responded by stating 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 Railroads Co. v. Flexman, 103 Ill. 546 (1882).
The appeals panel found that a private contractor may be liable for the sexual assault of a student by its employee who was transporting the student, even though sexual assault, by its very nature, is outside the scope of employment. The appeals panel noted 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. The court stated that the Restatement (Second) of Agency on this point is consistent. 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 Section 214 cmt. a (1958).
Illinois courts recognize that a common carrier’s high duty of care is a nondelegable duty. Mueller v. Community Consolidated School District 54, 287 Ill.App.3d 337 (1997). The court went on to state that 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 the Flexman case and the Restatement of Agency, an employer with a nondelegable duty of care is liable for an employee’s misconduct outside the scope of employment.
In summary, Illinois courts recognized 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. The appeals panel held that a private contractor may be liable for an employee’s sexual assault of a student it transports, even though such a sexual assault is outside the scope of employment. The second certified question is answered in the affirmative.
Doe v. Sanchez, 2016 IL App (2d) 150554 (March 31, 2016).
Kreisman Law Offices has been handling truck accident cases, automobile accident cases, motorcycle accident cases, catastrophic injury cases, premises liability cases, pedestrian accident cases and nursing home abuse cases for individuals and families who have been injured or killed by the negligence of another for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Elmhurst, Rosemont, Franklin Park, River Grove, Wilmette, Waukegan, Aurora, Bensenville, Clarendon Hills, Yorkfield, Crestwood and Forest Park, Ill.
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