Motion 15-Plaintiff's Motion in Opposition of Defendant's 2-619 dismissal in CTA Car Accident case

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Plaintiff's Response to Defendant CTA's Section 2-619(a)(9) Motion to Dismiss

Respectfully submitted, Attorney for Plaintiff, Leonard S. Becker, Attorney for Plaintiff, 312 N.May, Suite 100, Chicago, IL 60607, 312-492-7700, Atty.No. 30278.

Cal: E

Now comes Plaintiff, Antoine Henderson (“Henderson”), by and through his counsel, Leonard S. Becker, requesting this court deny the Section 2-619(a)(9) Motion to Dismiss filed by Defendant, Chicago Transit Authority (“CTA”). In support thereof, Plaintiff responds to the motion as follows:

I.
SUMMARY OF THIS CASE

This action arises out of an accident which occurred on January 23, 2007 involving Plaintiff, Antione Henderson, a pedestrian, and Stephanie Mathews, a CTA employee operating her personal automobile. Plaintiff alleges that the CTA is vicariously liable for the actions of its employee, Stephanie Mathews, when she negligently struck Henderson with her vehicle.

The CTA has filed the instant motion to dismiss pursuant to Section 2-619(a)(9) of the Illinois Code of Civil Procedure asserting that it is not vicariously liable for Mathews' negligence. The CTA claims Mathews acted outside the scope of her employment in that at the time of the accident (1) Mathews was driving her personal automobile; (2) the accident did not occur on CTA property; (3) Mathews did not work on the date of the accident; and, (4) Mathews was not operating a bus at the time of the accident

The CTA's position is without merit as Mathews was on duty with the CTA at the time of the accident and at the very least a genuine issue of material fact exists as to whether Mathews' negligent acts occurred within the in scope of her employment

II.
SECTION 2-619(a)(9) MOTIONS

The purpose of a Section 2-619 motion to dismiss is to dispose of issues of law and easily proved issues of fact at the outset of litigation. Zedella v. Gibson, 165 Ill.2d 181, 185, 209 Ill.Dec. 27, 650 N.E.2d 1000 (1995). As in summary judgment a trial court faced with a Section 2-619 motion must determine whether the existence of a genuine issue of material fact precludes the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law. Zedella, 165 Ill.2d at 185-86, 209 Ill.Dec. 27, 650 N.E.2d 1000; Kedzie and 103rd Currency Exchange. Inc. v. Hodge, 156 Ill.2d 112, 619 N.E.2d 732, 189 Ill.Dec. 31 (1993).

It is well settled that a question of fact for the trier of fact exists when scope of employment is at issue. Bagent v. Blessing Care Corporation, 224 Ill.2d 154, 862 N.E.2d 985, 308 Ill.Dec. 782 (2007) (emphasis added). Only if no reasonable person could conclude from the evidence that an employee was acting within the course of employment should a court hold as a matter of law that the employee was not so acting. Bagent 224 Ill.2d 154 (emphasis added); accord Restatement (Second) of Agency § 228, Comment d, at 505 (1958) (“The question whether or not the act done is so different from the act authorized that it is not within the scope of the employment is decided by the court if the answer is clearly indicated; otherwise, it is decided by the jury”).

Moreover, when ruling on a Section 2-619 motion to dismiss, a court “must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party.” In re Chicago Flood Litigation, 176 Ill.2d 179, 189, 223 Ill.Dec. 532, 680 N.E.2d 265 (1997). All well-pleaded facts, as well as reasonable inferences to be drawn from those facts, are taken as true. Keef v. Widuch, 321 Ill.App.3d 571, 576, 254 Ill.Dec. 580, 747 N.E.2d 992, 997 (2001).

III.
FACTS REVEALED IN DISCOVERY

In addition to the tacts and inferences gleaned from the complaint, discovery has revealed:

1. Mathews was assigned to work as a bus operator for CTA Run No. 735 on January 23, 2007. The shift was scheduled to begin at 11:35 am (CTA Response to Request to Admit nos. 1, 2) 1.

2. Mathews timely checked in with the CTA for Run No. 735 (CTA Response to Request to Admit no. 9).

3. The “pay hours” assigned to Run No. 735 are 6.9 hours and pay commences at 11:35 am (CTA Response to Request to Admit nos. 3,4).

4. The pay hours assigned to Run No. 735 include travel from the CTA garage to the location of Mathews' relief duty (CTA Response to Request to Admit no. 13).

5. Sections 5.4 and 5.6 of the Wages and Working Conditions Agreement (WCCA) between the Amalgamated Transit Union 241 and the CTA were in force on January 23, 2007 (CTA Response to Request to Admit nos. 9, 10, 11).

6. Section 5.4 of the WCCA directs that a bus operator's first 15 minutes of the day's work is for preparing himself and his bus for the shift and conducting any other duties the Authority (Defendant CTA) may require (See attachment to Exhibit A).

7. Section 5.6 of the WCCA directs travel pay for bus operators who travel from their garage to their assignments away from the garage (See attachment to Exhibit B).

8. Mathews testified she was scheduled to work on January 23, 2007, the day of the accident (Mathews dep. 20) 2.

9. Mathews drove her personal vehicle to the CTA garage at Harrison and Kedzie to report for work (Mathews dep. 23).

10. Mathews arrived early at the CTA garage to find a parking at the CTA lot because she knew there are not enough parking spots at the CTA lot (Mathews dep 23).

11. In the past when parking spots were not available on site, Mathews has parked on Kedzie Avenue or in a grocery store lot across the street from the CTA garage (Mathews dep 23).

12. Mathews could not find a parking spot at the CTA's lot so she temporarily parked near the entrance of the garage building in order to “check in” with the CTA clerk inside the facility (Mathews dep 25).

13. Checking in with the CTA clerk is required prior to commencing an operator's shift (Mathews dep 16-17).

14. Mathews' assignment that day required her to travel approximately four blocks from the CTA garage to meet a CTA bus and take over the bus operation duties (“relief”) (Mathews dep 14).

15. To meet her assigned bus Mathews intended upon traveling the one block north and three blocks west (Mathews dep 14).

16. Mathews exited the CTA garage building, re-entered her personal vehicle, and pulled out of the garage's parking lot onto northbound Kedzie Avenue with the intent of parking her car on northbound Kedzie Avenue and walking the balance of the distance to her relief point (Mathews dep 14,26).

17. The accident occurred almost immediately upon Mathews exiting the CTA parking lot and turning onto northbound Kedzie Avenue at approximately 11:54 am (Mathews dep 26).

18. The CTA has denied that Mathews was not in violation of any CTA rules when she drove her personal vehicle from the CTA garage to find parking after she had checked in for duty (CTA Response to Request to Admit no. 14).

19. The CTA tendered a document in response to Plaintiff's request to produce which indicates that CTA employees are not permitted to use a personal vehicle for CTA business without authorization (See Exhibit C)

20. The CTA did not discipline or charge Mathews relative to the accident (Mathews dep 41).

IV.
THE FACTS LEAD TO THE REASONABLE CONCLUSION THAT MATHEWS WAS WITHIN THE SCOPE OF AT THE TIME OF THE ACCIDENT

The tacts indicate that a reasonable person could conclude that Mathews was acting within the scope of her employment at the time of the accident Thus, on that basis alone, the motion to dismiss ought be denied. The issue of scope of employment is ultimately a question of fact for the trier of fact.

A. Vicarious Liability and Scope of Employment

The Illinois Supreme Court in Bagent v. Blessing Care Corporation articulated the standards for finding employers vicariously liable for the acts and omissions of their employees. Bagent v. Blessing Care Corporation, 224 Ill.2d 154, 862 N.E.2d 985, 308 Ill.Dec. 782 (2007). Under the theory of respondeat superior, an employer can be liable for the torts of an employee, but only for those torts that are committed within the scope of the employment Blagent citing Wright v. City of Danville. 174 Ill.2d 391, 405, 221 Ill.Dec. 203, 675 N.E.2d 110 (1996) ; Pyne v. Witmer, 129 Ill.2d 351, 359, 135 Ill.Dec. 557, 543 N.E.2d 1304 (1989). The employer's vicarious liability extends to the negligent, willful, malicious, or even criminal acts of its employees when such acts are committed within the scope of the employment.Blagent citing Mitchell v. Norman James Construction Co., 291 Ill.App.3d 927, 932, 225 Ill.Dec. 881, 684 N.E.2d 872 (1997) ; Randi F. v. High Ridge YMCA, 170 Ill.App.3d 962, 964, 120 Ill.Dec. 784, 524 N.E.2d 966 (1988) ; Webb v. Jewel Cos., 137 Ill.App.3d 1004, 1006, 92 Ill.Dec. 598, 485 N.E.2d 409 (1985).

The term “scope of the employment,” used interchangeably with “in the course of the employment,” refers to a “bare formula,” whose “very vagueness has been of value in permitting a desirable degree of flexibility in decisions.” Blagentquoting W. Keeton, Prosser & Keeton on Torts § 70, at 502 (5th ed.1984). The Second Restatement of Agency has identified three general criteria in determining whether an employee's acts are within the scope of employment

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master. Blagent citing Restatement (Second) of Agency § 228 (1958) ; Pyne, 129 Ill.2d at 360, 135 Ill.Dec. 557, 543 N.E.2d 1304.

1. Mathews' Conduct Was of the Kind She Is Employed to Perform

The CTA presumably hired Mathews to operate a CTA bus. On the accident date, the CTA had assigned Mathews to Run No. 735. To perform her primary duty Mathews was required to travel to the CTA garage, check in with the clerk at the CTA garage, and then travel to her relief location.

The CTA allows its employees to drive their personal vehicles to the CTA garage and park at the CTA garage's lot However, on the date of the this accident parking was not available at the CTA lot This was not unusual to Mathews in that she expected parking at the lot to be scarce. It is the custom and practice Mathews, to park on Kedzie Avenue or at the grocery store lot when the CTA lot is full. Admittedly, Mathews was not operating a bus when the accident occurred. However, she was already checked in for duty and arguably “on the clock” when she left the garage to park her vehicle and continue to travel to her relief location.

The reasonable inference drawn is that the CTA allowed or otherwise acquiesced to its employees parking their vehicles off site when there was no parking available on site at the CTA lot Parking her vehicle was a step Mathews needed to take in order to perform her duties as a bus operator that day.

2. Mathews' Conduct Was Actuated at Least in Part by a Purpose to Serve the CTA

Mathews testified that after checking in and reporting for work her intention was to drive from the CTA garage onto northbound Kedzie Avenue, park her car, and continue by foot to her point of relief. Her conduct was actuated by a purpose to serve her employer, to wit to meet the bus to provide relief bus operation. Moreover, she found it necessary to park her vehicle on northbound Kedzie because the parking lot provided by CTA was full.

3. Mathews' Negligence Occurred Within the Authorized Time and Space Limits

Mathews' negligent conduct occurred soon after she had checked in for duty and immediately outside of the CTA garage's driveway. Her intent was to park her car and travel by foot to her relief pont. Her vehicle was headed in the same direction that she would have traveled, if she had walked from the garage to her point of relief - northbound. Moreover, the accident occurred between the time she was required to check in and the time she was to meet the bus.

B. Relevant Cases Support Plaintiff's Position

The facts of this case fit well within the Blagent criteria supporting a finding that Mathews was in the scope of her employment Morever, several cases appellate cases support Plaintiff's position. In Hogan v City of Chicago, a city employee (garbage collector) was involved in an automobile accident with the plaintiff. Hogan v. City of Chicago, 319 Ill.App. 531, 49 N.E.2d 861 (1943). The city employee was required to report to his ward office at the beginning of his shift in order to receive his daily assignment From the ward office the city employee would travel in his own vehicle to the location of the day's assignment. It was undisputed that the city employee caused the accident while driving from the ward office to the location of the day's assignment

The plaintiff sued the City of Chicago under a respondeat superior theory. The Defendant argued (1) that the employee was hired to remove garbage, not drive his personal vehicle; (2) that no part of the expense of operating the employee's personal vehicle was paid by the City of Chicago; and, (3) that the employee used his vehicle for his own convenience.

The court rejected each of the City of Chicago's arguments and rather determined that the controlling element is whether the employee was authorized to use his own automobile to get to his loading station. The evidence was that the employee was driving his own car with the acquiescence of the employer, which was sufficient to be within the scope of employment. The City's motion for directed verdict was properly denied in that the issue of scope of employment presented a question of fact for the jury.

In this case, the court need not leap far to conclude that the CTA at least acquiesced in allowing its employees to park off site in light of the fact that the CTA lot did not provide enough parking spots for its employees.. Mathews testified that it was common for all the spots at the CTA's lot to be filled and that she in the past parked off site

Even if an employee disregards her employer's rules, her acts may be within her scope of employment. Adames v. Sheahan, 2007 WL 4232784 (Ill.App. 1 Dist, Nov. 29, 2007). In Adames, a sheriff's employee allegedly failed to properly secure his service firearm at his home, in violation of his employer's rules. Despite an apparent violation of the employer's rule, the First District finding that a genuine issue of material fact existed as to scope of employment, wrote that proper storage of weapon at an employee's home was incidental to the employment (Adames at *11) and that “...[T]t is a well-settled legal principle that where an agent does an act in the course of his employment, although the principal did not authorize or participate in, or know of the conduct, or even if he forbade the acts or disapprove of them, the rule of respondeat superior applies.” Adames, at *10 (emphasis added).

Thus, even if Mathews violated a CTA rule relating to parking or operating her personal vehicle after checking in, or driving her personal vehicle to her relief point, she remains in the scope of her employment

V.
THE CTA'S ARGUMENTS FAIL

The CTA argues in its motion that it is not vicariously liable for Mathews' negligence because (1) Mathews was driving her personal automobile; (2) the accident did not occur on CTA property; (3) Mathews did not work on the date of the accident; and, (4) Mathews was not operating a bus at the time of the accident None of these arguments exclude Mathews as acting within the scope of her employment at the time the accident

The fact that Mathews was driving her own personal vehicle at the time of the accident, potentially in violation of CTA rules 3 does not conclusively indicate Mathews was acting outside her scope of employment Adames v. Sheahan, 2007 WL 4232784 (Ill.App. 1 Dist, Nov. 29, 2007) ; Gaffney v. City of Chicago, 302 Ill.App.3d 41, 706 N.E.2d 914 (1998). In fact, the CTA's rule prohibiting unauthorized use of personal vehicles for CTA business does not militate against finding Mathews acted within the scope of her employment; rather, the rule only reinforces the conclusion that Mathews' use of her personal vehicle was expected and foreseeable. Gaffney, 302 Ill.App.3d at 55 (citing Martin v. Central Ohio Transit Authority, 70 Ohio App.3d 83, 590 N.E.2d 411 (1990) ).

The fact that the accident occurred on Kedzie Avenue and not on CTA property is not helpful to the CTA when the CTA itself caused Mathews to leave CTA property, either by expressly directing her to travel to another location (to meet her bus for relief) or by acquiescing to her need to find parking off site.

The CTA incredibly argues that Mathews was “not at work” at the time of the accident Both Mathews and the CTA have admitted that Mathews had reported for duty just minutes before the accident occurred and that she was on her way to her relief assignment when the accident occurred. Once checked in for duty, the CTA had the ability to control Mathews' actions (i.e. directing her to the relief location and subjecting her to CTA rules). Whether Mathews was paid wages for January 23, 2007 or whether she was not driving a bus at the time of the accident are not necessarily relevant What is relevant is that at the time of the accident Mathew was engaged in activities incidental to her employment as a bus operator.

VI.
CONCLUSION

The bottom line is that Illinois Supreme Court directs questions concerning scope of employment are reserved for the jury unless it is so clear that no reasonable person could concluded that the tortfeasor acted outside the scope of employment Bagent v. Blessing Care Corporation, 224 Ill.2d 154, 862 N.E.2d 985, 308 Ill.Dec. 782 (2007). In this case no reasonable person could conclude that Mathews was acting outside of her scope of employment with the CTA when the facts indicate that she has reported for duty, had checked in with the garage clerk, was on her way to her relief assignment at the time of the accident, and that parking her vehicle off-site appears to be reasonably incidental to her employment

Strikingly, the totality of the facts strongly support finding that Mathews was acting within the scope of employment with the CTA. This court has ample reason in fact and in law to deny this motion to dismiss.

Wherefore, Plaintiff asks this court to deny the Chicago Transit Authority's Section 2-619(a)(9) motion to dismiss with prejudice and order any further relief it deems appropriate.

Respectfully submitted,

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