IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION
DUSTIN WALLER, )
Plaintiff, ) ) )
vs. ) )
DOUGLAS MEADOR and VAN GALDER) BUSCOMPANYINC. )
Defendant. )
No 2007 L 012917 Calendar Z
NOTICE OF FILING
TO: Mr. Dean Barakat
Nyhan, Bambrick, Kinzie & Lowry, P.C.
20 N. Clark Street, Suite 1000 ‘
Chicago, IL 60602
On . { ‘J- 2 <f , 2010 we filed with the Circuit Court of Cook County Illinois, County Department, Law Division, the enclosed: PLAINTIFF’S RESPONSE BRIEF TO DEFENDANT, VAN GALDER BUS COMPANY’S MOTION FOR SUMMARY JUDGMENT –: (
CERTIFICATE OF SERVICE
Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that she served the attached documents by mailing a copy or causing a copy to be deliver d to e person(s) to whom it is directed at the above addresses before 5:00p.m. on , 2010.
Attorney# 35193
ANKIN LAW OFFICE LLC
162 West Grand Avenue
Chicago, Illinois 60654
312.346.8780
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
DUSTIN WALLER, )
Plaintiff, ) ) )
vs. ) )
DOUGLAS MEADOR and VAN GALDER ) BUS COMPANY INC. )
Defendant. )
No 2007 L 012917
Calendar Z
PLAINTIFF, DUSTIN WALLER’S RESPONSE BRIEF TO DEFENDANT, VAN GALDER BUS COMPANY’S MOTION FOR SUMMARY JUDGMENT
:NOW COMES, the Plaintiff, DUSTIN WALLER and in response to Defendant, VAN GALDER BUS COMPANY’S Motion for Summary Judgment Pursuant to 735 ILCS 5/2-1005 states as follows:
I. SUMMARY- INTRODUCTION
This case involves the duty a common carrier owes to a passenger. Defendant, Van Galder ) erroneously asserts that this case simply concerns whether Van Galder can be held liable for a third party’s assault on Plaintiff, Dustin Waller. Belying this position, however, is the undisputed fact that on at least two occasions prior to codefendant Douglas Meador assaulting Waller, Van Galder Bus Company’s bus operator, Dale Schulze, failed to take vigilant action after admittedly observing Meador acting aggressively towards his passengers. During his deposition, Schulze stated that he (1) observed Meador begin driving his vehicle into the area where he knew or should have known his passengers were standing and (2) observed Meador yelling and “jawing” at Plaintiff, Dustin Waller. (Schulze 37,38). Upon witnessing this aggressive behavior, reasonable minds could conclude that vigilant action would be necessary to protect passengers from potential harm. In the very least, Schulze should have investigated the source o fMeador’s arwEV s ,.Q,:l };f Wever, testified he only passively mentioned to Meador that he would be leaving shortly and then returned to continue unloading luggage. (Schulze 38). Thereafter, Meador punched Waller. (Waller 19).
Waller relates a similar pattern of facts. Waller relates that shortly after Schulze allowed the passengers to alight from the bus and while waiting to retrieve his luggage from the bus’s luggage compartment, Meador assaulted him twice. (Waller 17-19). The first time occurred after he noticed Meador begin to drive his vehicle into other passengers. (Waller 19). At the time, Waller was waiting in an area, outside the bus where Schulze directed passengers to await while awaiting their luggage. (Waller 19; Schulze 35-36). Concerned that Meador was simply not paying attention, Waller approached Meador’s vehicle to gain his attention. (Waller 19). In response, Meador exited his vehicle and pushed Waller against the bus. (Waller 19). Other passengers were able to restrain Meador before the attack escalated. (Waller 19). Soon after, however, Waller testified that he returned to retrieving his luggage when Meador suddenly and unexpectedly struck him in the face. (Waller 19).
Under these facts, the record supports Waller’s contention that Schulze’s passive behavior at least contributed to Waller’s injuries. As a result, Van Galder’s request for summary judgment should be denied.
II FACTS
On March 16, 2009, Dale Schulze was operating a bus in the course of his duties for the Defendant, Van Galder Bus Company Inc. (Schulze 14). Mr. Schulze was operating the bus on a “Midway Run” from Janesville, Wisconsin to Chicago Midway Airport with intervening stops in Beloit, Wisconsin and Rockford, Illinois. (Schulze 14-15).
Plaintiff, Dustin Waller testified that he purchased a ticket with Van Galder to transport him from Rockford, Illinois to Midway Airport in Chicago. (Waller 14-15). Waller further testified that he brought luggage with him and placed the luggage in a compartment underneath the bus. (Waller 15). Waller testified that the purpose of purchasing the ticket with Van Galder was to transport him from Rockford, Illinois to the ATA terminal at Chicago Midway Airport. (Waller 17).
Waller and Schulze both testified that upon arriving at the ATA terminal at Midway airport on March 16, 2009, Schulze did not stop his bus in the curb lane at the terminal. (Waller 17; Schulze 23). Schulze testified that he stopped the bus in the second lane of traffic and not the curbside lane. (Schulze 24).
Schulze testified that he parked in the second lane because there was an SUV parked in the curb lane. (Schulze 31). Schulze stopped the bus such that the parked SUV was located towards the middle of the bus. (Schulze 31). Schulze testified that there was not enough space for him to park his bus in front of or behind the parked SUV. (Schulze 31-32). After parking the bus parallel to the parked SUV, Schulze immediately let the passengers off the bus. (Schulze 33). The driver of the SUV was identified as codefendant, Douglas Meador. (Waller pp. 21-22).
Schulze further testified that he exited the bus first and opened the luggage compartment to unload the luggage. (Schulze 37). Per company policy, Schulze testified that the company “wants strictly the driver to …load and unload [the luggage].” (Schulze 34).
Much like the parked SUV, Schulze testified that the luggage compartment was also located in the middle of the bus on what would have been the curb side of the bus. (Schulze 31, 33). While the driver unload the luggage, Schulze testified that the passengers wait around the luggage unload area waiting for their bags to be unloaded. (Schulze 35). Schulze testified that on the date of the incident there we e approximately 12-13 passengers on the bus. (Schulze 30). Schulze further testified that prior to the incident all 12-13 of the passengers were off the bus hovering in the area where the bags were being unloaded. (Schulze 35-36).
Schulze testified that while unloading the luggage, he saw the vehicle, the previously parked / .. SUV, begin moving ahead slowly. (Schulze 37). Schulze testified that upon seeing the SUV begin moving he simply turned around and continued pulling out the luggage. (Schulze 38).
At some point later while outside the bus and still continuing to remove the luggage, Schulze testified that he heard yelling. (Schulze 38). Schulze characterized the yelling as “jawing” and having raised voices. (Schulze 38, 40). Upon viewing Meador yelling and jawing at Waller, Schulze testified that he said “Hey guys, I’m going to be out of here in 30 seconds” then turned around and continued removing luggage. (Schulze 38). Shortly thereafter Schulze testified that he heard a loud noise which he believed to be a punch. (Schulze 38). Schulze testified that he and a few other individuals restrained the aggressor until police arrived at the scene. (Schulze 44). After the police had the situation under control, Schulze testified that he turned and completed removing luggage that was under the bu . (Schulze 44).
Waller testified that he was in the process of obtaining his bags from the underneath compartment when he noticed the parked SUV begin to move and actually come into contact with other passengers. (Waller 17-19). Waller testified that he had not obtained his luggage from the underneath compartment when this was occurring. (Waller 17-19). Concerned that the driver of the SUV was “out of it” Waller testified that upon witnessing Meador, the driver of the SUV begin driving his vehicle into these passengers, he walked less than 5 feet from the luggage compartment to the vehicle and tapped on the window to get the driver’s attention. (Waller 19). Waller testified that thereafter, Meador stopped his vehicle and exited. (Waller 19). Meador then grabbed Waller by the neck and pushed him against the bus. (Waller 19). Thereafter, two individuals were able to grab Meador and pull him away from Waller towards his vehicle. (Waller 19). Waller testified that Meador then ran from his vehicle to Waller and punched him in the face. (Waller 19-20).
III. STANDARD OF REVIEW
Summary judgment is appropriate where the pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ill. Rev. Stat. 1977, ch. 110, par. 57(3). In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Lumbermens Mutual Casualty Co. v. Poths, 104 Ill. App. 2d 80, (1968). Inferences may be drawn from the facts which are not in dispute, and if reasonable persons could draw different inferences from these facts, then a triable issue exists. McHenry Sand & Gravel, Inc. v. Rueck, 28 Ill. App. 3d 460 (1975). The right of a party to summary judgment must be clear and free from doubt. Dakovitz Arrow Road Construction Co. 26 Ill. App. 3d 56 (1975).
IV. ARGUMENT
A. Dustin Waller Remained A Van Galder “Passenger” At All Times Relevant To The Complaint Which Defendant.
The evidence supports that Waller should be considered a passenger at the time Meador assaulted him. Waller never retrieved his luggage prior to the incident with Meador occurring. Waller’s luggage was still in the process of being removed at the time this incident occurred. Additionally, Schulze controlled the removal of the luggage and acknowledged that passengers would remain in the area around the luggage compartment while awaiting their luggage. The fact that Waller did not yet have his luggage and at all times was in the area Schulze anticipated he would be (in the area surrounding the exterior luggage compartment) establishes that he was still a passenger.
The relation of carrier and passenger does not terminate, until the passenger has alighted and left the place where passengers are discharged and the duty of the carrier to its passenger continues, until the passenger has had a reasonable time in which to leave the depot or alighting place. Katamay v. Chicago Transit Authority. Ill.2d 27, 30 (1972). What is such a reasonable time must often ter, che t depend upon the circumstances of the particular case. !d. In an Illinois Supreme Court case, the court considered the factor test propounded in the Washington case of Zorotovich v. Washington Toll Bridge Authority, 491 P.2d 1295, 1297 to determine whether an individual is still considered a passenger. Katamay v. Chicago Transit Authority. Ill.2d 27, 31-32 ( 1972). That test considered:
“(1) place (a place under the control of the carrier and provided for the use of persons who are about to enter the carrier’s conveyance) (2) time (a reasonable time before the time to enter the conveyance) (3) intention (a genuine intention to take passage upon carrier’s conveyance) (4) control (a submission to the directions, express or implied of the carrier) and (5) knowledge (a notice to carrier either that the person is actually prepared to take passage r that persons awaiting passage may reasonably be expected at the time and place.” !d.
Applying this test to the case at bar and construing the facts liberally in favor of the Plaintiff, Waller remained a passenger of Van Galder at all times relevant to the complaint. Of particular significance is the fact that at the time this incident occurred, Waller had not yet obtained his luggage. Waller testified that he just started attempting to remove his bags when Meador began honking his horn and driving his vehicle into alighting passengers. (Waller 29). Additionally, Schulze testified that only he could remove the baggage. So long as only Schulze was required to remove the luggage and the luggage had yet to be fully transferred to Waller, Waller did not cease to be a passenger at :any time relevant to the complaint.
Moreover, Waller was in the place Schulze testified he expected alighting passengers to be; in the area around the exterior baggage compartment of the bus. Schulze stated during his deposition that it was common for alighting passengers to hover in the area around where the baggage was to be removed. (Schulze 35). Waller testified that the assault occurred while he was next to the bus attempting to rempve his luggage. (Waller 19-20)
In light of the fact that Waller was still in the process of obtaining his luggage and was in the place where Van Galder’s driver expected to him to be in order to receive his luggage, he did not cease being a passenger. As Illinois courts have held, the fact that Waller exited the bus did not cease the passeng r carrier relationship. An individual remains a passenger until he has alighted and left the place where passengers are discharged. In this case, Waller remained in the place Schulze directed him to be and should not be expected to leave until he obtained his luggage.
B. Defendant Van Galder Breached Its Heightened Duty Of Care In Failing To Act Vigilantly To Protect Passengers, Including Waller, From A Visibly Agitated, Aggressive and Confrontational Douglas Meador.
As a common carrier, Van Galder owed Waller, a passenger, the highest duty of care. This duty of care inclutled taking proactive steps to protect its passenger from reasonably foreseeable harm. The fact that Schulze admitted personally witnessing multiple instances of aggressive and confrontational behavior by Meador, imposed a duty of active vigilance. Reasonable minds could conclude that Schulze did not take vigilant action in this case which constituted a breach of his heightened duty of care.
The Illinois Supreme Court has frequently held that a common carrier’s heightened duty of care owed to pass ngers includes an obligation to exercise reasonable care and caution for the prevention of reasonably foreseeable assaults upon its passengers. Watson v. Chicago Transit Authority, 52 Ill.2d 503, 505 (1972); Rotheli v. Chicago Transit Authority, 7 IIJ.2d 172, 178 (1955); Neering v. Illinois Central R.R. Co., 383 Ill. 366, 374 (1943). Knowledge of conditions which are likely to result in an assault upon a passenger, or which constitute a source of potential danger, imposes the duty of active vigilance on the part of the carrier’s agent and the adoption of such steps as are warranted in the light of existing hazards. Neering, 52 Ill.2d at 379 (emphasis added). An issue concerning breach of duty is ordinarily a question of fact. Scerba v. City of Chicago, 284 Ill.App.3d 435, 439 (Ill. App. Ct. 1996).
In Watson v. Chicago Transit Authority, the court held that the CTA could be held liable to a passenger who was shot by another passenger. 52 Ill.2d at 506. In that case, the assailant approached the paintiff and asked for change. !d. at 2. When the plaintiff refused, the assailant grabbed the plaintiff and pulled a gun from his pocket. !d. Women on the bus began to scream and a struggle ensued until the plaintiff and assailant’s struggle reached the doors of the bus. !d. The doors of the bus then opened causing both to fall and the gun to go off striking the plaintiff in the abdomen. !d. In reaching its decision, the court heavily relied upon the fact that the driver would have been alerted,to the struggle by the women screaming and, despite this fact, continued to drive the bus four blocks before stopping. !d. Reasonable minds could conclude this breached the CTA’s duty of active vigilance. !d.
The Illinois Supreme Court has also held that reasonable minds could conclude a CTA train conductor telling unruly passengers to “cool it” did not constitute sufficient active vigilance to sustain its heightened duty of care. McCoy v. Chicago Transit Authority, 69 Ill. 2d 280, 289 (1977). In McCoy, a passenger was physically assaulted by other passengers. Prior to the assault, a conductor noticeq the eventual assailants hassling another passenger. !d. at 283. The conductor simply told the men to “cool it” and took no further action. !d. Eventually, these assailants assaulted the plaintiff knocking him unconscious. !d. at 282. The court held that a jury could reasonably have found that defendant’s agent knew or should have known of the propensity of the men to cause trouble and that he failed to take necessary precautions in simply telling the assailants to “cool it”. !d. at 289.
Similar to. the defendant’s agents in both Watson and McCoy, Schulze failed to take necessary precautions to prevent injury to Plaintiff when he knew or should have known that Waller was potentially in danger. According to Schulze’s own testimony, there are at least two occasions where reasonable minds could conclude that Schulze should have known that Meador posed a risk of physical harm to his passengers. First, Schulze testified that he noticed Meador’s vehicle begin to move. (Schulze 37). Schulze also testified that he was aware his passengers were still in the area as he continued unloading luggage. (Schulze 35-36). Reasonable minds could conclude that a moving SUV in close proximity to passengers posed a risk of harm to passengers. As a result, Schulze’s heightened duty of active vigilance demanded he intervene. Despite this fact, the record is undisputed that Schulze took no action and continued unloading luggage. (Schulze 38).
Second, and most directly related to Plaintiff, Schulze should have identified the danger posed to Waller when he heard and saw Meador allegedly “jawing” at Waller. Schulze admitted hearing the yelling and seeing “jawing.” (Schulze 38, 40). Similar to the Defendant’s agent in McCoy, Schulze testified that he simply said “Hey guys, I’m going to be out of here in 30 seconds” then turned around and continued removing luggage. (Schulze 38). Thereafter, the Plaintiff Waller was assaulted.
The passiye behavior Schulze displayed in this case is exactly what the Supreme Court found in both Watson and McCoy as arguably insufficient and not in accord with a common carrier’s duty of active vigilance. As a result, liberally construing these facts in a light favorable to the Plaintiff, it can be concluded that a genuine issue of material fact exists as to whether Schulze’s conduct constituted active vigilance and whether he breached the duty of care he owed. For these reasons, Defendant Van Galder’ s motion for summary judgment should be denied.
C. Whether Van Galder’s Breach Oflt’s Duty Of Care Proximately Caused Plaintifrs Injury Is A Question Of Fact And Not Decided As A Matter Of Law.
What is the proximate cause of an injury is ordinarily a question of fact to be determined by a jury from a consideration of all the evidence. Phillabaum v. Lake Erie and Western Railroad, 315 Ill. The test that should be applied in all proximate cause cases is whether the first wrongdoer reasonably might have anticipated the intervening efficient cause as a natural and probable result of the first party’s own negligence. Merlo v. Public Service Co., 381 Ill. 300,317 (1942). The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable. Neering, 383 Ill. At 381 (citing Wintersteen v. National Cooperage and Woodenware Co., 361 Ill. 95; Sycamore Preserve Works v. Chicago and Northwestern Railroad Co., 366 Ill. 11). Where the concurrent negligence of two persons causes an injury, which could have been avoided but for the negligence of either, the negligence of each is the proximate cause. Chicago and E. I R. Co. v. Mochel!, 193 Ill 208. It is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act. Illinois Central Railroad Co. v. Oswald, 338 Ill. 270.
In Neering, the Illinois Supreme Court held that that there was evidence of a causal connection between the Defendant’s failure to take action to make its train station safe and the Plaintiff being assaulted by hoboes and vagrants while waiting at its station. Neering, 383 Ill. at 382. The court held that the defendant should have known that its’ train station was frequented by hoboes and vagrants and that this posed a risk of injury to its patrons. Id.
Similarly,, in Lutz, the court held that in permitting a bus to become overcrowded the defendant could have reasonably foreseen that another passenger may have intentionally pushed the plaintiff from thetbus. Lutz v. Chicago Transit Authority, 36 Ill. App. 2d 79, 85 (Ill. App. Ct. 1962). The court held th4t there was sufficient evidence to raise the factual questions of whether the bus was overcrowded, whether the defendant observed the degree of care and caution imposed on it by law in permitting it to be overcrowded and whether this overcrowding was a proximate cause of plaintiffs injury. Id. The court further held that these questions should have been left to the jury and the defendant’s motion for a directed verdict should have been denied. Id.
The evidence in the present case certainly poses a question of fact concerning proximate causation. Similar to both cases of Lutz and Neering the simple fact that a third party intervened is not enough to break the chain of causal connection. The question is whether Schulze’s failure to take vigilant action upon noticing Meador begin driving his car forward into passengers and viewing him yelling at and ‘ awing” with Waller could place Waller at risk of harm. Reasonable minds could conclude that his failure to act did.
Moreover, the Defendant mischaracterizes both the acts of negligence of its agent and the conduct of Plaintiff, Waller. Defendant Schulze’s negligence did not stop with parking the bus in a manner that blocked in Meador. Defendant Schulze’s negligence occurred when he failed to take any action when he should have realized that Defendant Meador was acting in an aggressive and dangerous manner by driving his vehicle into the passengers. Upon viewing this conduct, vigilant action could have·, demanded moving his bus, directing his passengers away from the vehicle or contacting the police upon seeing Meador responding in an agitated and hostile manner. Similarly, after seeing Meador yelling and “jawing” at Waller he should have taken action greater than telling the men he would be leaving soon. Viewing the facts from this perspective clearly demonstrates that a question of fact is presented as to whether Schulze’s failure to act put Waller in potential danger and thereby proxi)Tiately caused his injuries.
Further, Illinois courts do not require that Schulze should have known of the exact danger, but simply that a potential for danger was present. Not only should he have known, but arguably, he did know. Upon viewing the men “jawing” Schulze made a minimal attempt to intervene by telling the men he was almost done. Schulze testified that he made this statement because “I thought that might- not knowing exactly what was going on, but I just thought that might help the situation.” (Schulze 42). By this it can be adduced that he actually did know a hostile environment existed and decided not to take vigilant action.
Defendant also mischaracterizes Plaintiff as an aggressor attempting to “pick a fight with the vehicle driver.” (Defendant Motion, 12). There is no evidence in the record to support this contention. In fact, the record debases this contention. Waller stated that his reason for approaching the vehicle was to “see what was going on” because he “didn’t know if [Meador] was out of it.” (Waller 19). Seeing the SUV move into people, Waller’s concern was that Meador may have been unconscious or not paying attention and his goal was to alert him to this conduct. Waller had no reason to pick a fight with a person that he had never met before.
Moreover, the record supports that Waller has always maintained a very pedestrian lifestyle and has no prior incidents of violence or disruptive behavior. He testified that he is currently employed as a photographer and graphic designer for Northwest Quarterly Magazine based out of Rockford, Illinois. (Waller, 8). Previously and at the time of the incident, Waller testified that he was a freelance photographer for Hughes Media. (Waller 9-12). Mr. Waller testified that he has an associates degree from Rock Valley College in Rockford, Illinois. (Waller 7). Moreover, per Mr. Waller’s answers to interrogatories, he has never been convicted of a felony or misdemeanor involving fraud or dishonesty. (Exhibit C, Question 20).
V. CONCLUSION
In considering a motion for summary judgment, it is not the role of the reviewing court to weigh the evidence before it. The role of the court is to simply determine whether there is any evidence which reasonable minds could conclude creates a genuine issue of material fact. In the case at bar, there is evidence demonstrating an ongoing duty on behalf of the defendant as a common carrier, a breach qfthat duty and that breach proximately leading to Plaintiffs injury.
In light of the foregoing, there is sufficient evidence, when viewed in a light most favorable to Waller, to support Waller’s negligence cause of action against Van Galder. Accordingly, Van Galder’ s motion for summary judgment pursuant to 735 ILCS 5/2-1005 should be denied.
Attorney # 35193
162 West Grand Avenue
Chicago, Illinois 60654
312.346.8780
