THERESA THOMAS LATOSHA FRANKLIN LATOSHA THOMAS v. THE STATE OF ILLINOIS (2002)

OPINION

The Claimant, THERESA THOMAS, mother of LATOSHA FRANKLIN, a/k/a/ LATOSHA THOMAS (Latosha), brings this claim for compensatory damages suffered by her daughter, Latosha, pursuant to the Illinois Court of Claims Act, 705 ILCS 505/8. The Claimant asserts that a driver of a Southern Illinois Head Start school bus, as an agent and servant of the Respondent, STATE OF ILLINOIS, was guilty of one or more of the following omissions: (a) he failed to exercise ordinary care under the circumstances to prevent harm to the Claimant by permitting Claimant's younger brother to alight from the school bus across the street from his residence; (b) he failed to transport JOSEPH FRANKLIN to a place in which he could have walked to his home without crossing the street and therefore placed him in a position of peril that necessitated his rescue by LATOSHA FRANKLIN; (c) he permitted or was going to permit such procedure that would likely result in an injury to JOSEPH FRANKLIN to leave the bus unassisted when he knew or should have known that such procedure would likely result in an injury to JOSEPH FRANKLIN and further that such procedure would necessitate the rescue of JOSEPH FRANKLIN by such other individuals as the Claimant.

A hearing was held before this Court on January 30, 2001. At the hearing, the Court heard testimony from THERESA THOMAS, LATOSHA THOMAS, JOSEPH FRANKLIN, BELINDA BROWN and EUREKA THOMAS. The parties entered into the following stipulation: that the Claimant's out-of-pocket medical bills were in the amount of $2,000.00; the STATE OF ILLINOIS was entitled to an offset in the amount of $25,000.00; that LATOSHA FRANKLIN received for medical treatment from Dr. J. Ramon from October 31, 1989 to August 27, 1990.

The Claimant's son, Joseph, was a participant in the Head Start Program at SIU-Edwardsville and a passenger on the school bus driven by Derrick Garner on the date of the incident. The family lived on the opposite side of Route 157, a two-way highway, from where Derrick Garner customarily let Joseph off the bus. The Departmental Report indicates that the bus driver customarily waits for an adult to come to the bus to retrieve the children who rode as passengers.

On the date of the accident, the bus driver, Mr. Garner, stopped the bus across the street from Joseph's home and activated his horn. Joseph's then nine-year-old sister, Latosha, ran across the street to help Joseph cross the road. Latosha was then struck by the vehicle driven by BELINDA BROWN.

In order for a Claimant to recover against the State in a negligence claim, she must prove by a preponderance of the evidence that the State owed her a duty of care, that the duty was breached by a negligent act or omission, and that such negligence was the proximate cause of the injuries sustained. Rapp v. State of Illinois, 51 Ill.Ct.Cl. 72 (1999). A rescuer is someone who voluntarily attempts to save a life or secure the safety of another who is in a position of peril. Seibutis v. Smith, 404 N.E.2d 950 (1st Dist. 1980). If the plaintiff is injured in the attempt to rescue that third party, then she is allowed to negate a presumption that her intentional act of rescue is the superseding cause of her injuries, thereby allowing her to prove that defendant's negligence is the proximate cause of her injuries. Id.

It is the opinion of this Court that the bus driver placed Latosha in a position of peril by necessitating the rescue of her brother, Joseph. The Departmental Report states that the bus driver customarily waits for an adult to come to the bus to retrieve the children who rode as passengers. Latosha was only nine years old when the accident occurred. Accordingly, the bus driver deviated from the standard procedure in letting off children from the bus.

For the foregoing reasons, the Court awards the sum of $15,000.00 which is offset by the stipulation of the parties wherein Claimant has received $25,000.00.

MITCHELL, J.