Motion 16-Defendant's 2-619 Motion to Dismiss CTA Accident case

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Chicago Transit Authority's Motion to Dismiss in Lieu of Answer

Mamie A. Alexander, Chicago Transit Authority, P.O. Box 7564, Chicago, IL 60680-7564, (312) 681-2919.

NOW COMES Defendant, CHICAGO TRANSIT AUTHORITY, by and through its attorney, KAREN ROWAN, General Counsel, and pursuant to 2-619(a)(9) of the Illinois Code of Civil Procedure, moves to dismiss the above-captioned action. In support of this motion, Defendant states as follows:

1. This cause of action arises from an incident which occurred on January 23, 2007. Plaintiff alleges that on that date, Stephanie Matthews was a duly authorized agent and employee of the Chicago Transit Authority. (See Plaintiff's Complaint, attached hereto as Exhibit “A”).

2. On January 23, 2007, Stephanie Matthews was driving her personal vehicle, a 2005 Hyundai Sonata, when she was involved in an accident with the plaintiff, Antoine Henderson. (See Affidavit of Stephanie Matthews, attached hereto as Exhibit “B”).

3. The accident did not occur on CTA property, and did not involve a CTA bus. Id.

4. Stephanie Matthews did not work on January 23, 2007, and was not driving a CTA bus at the time of the occurrence. Id.

WHEREFORE, Defendant CHICAGO TRANSIT AUTHORITY, moves that this court dismiss the Chicago Transit Authority from above-captioned case with prejudice, pursuant to rule 2-619(a)(9).

Respectfully Submitted,

Karen Rowan, General Counsel

By: <<signature>>

Mamie A. Alexander

Senior Attorney

Mamie A. Alexander

Chicago Transit Authority

P.O. Box 7564

Chicago, IL 60680-7564

(312) 681-2919

CHICAGO TRANSIT AUTHORITY'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS IN LIEU OF ANSWER

NOW COMES Defendant, CHICAGO TRANSIT AUTHORITY, a municipal corporation, by and through KAREN ROWAN, its General Counsel, and in reply to Plaintiff's response to its Motion to Dismiss in the above-captioned matter, states as follows:

Summary of the Case

On January 23, 2007, Defendant Stephanie Matthews was attempting to find a parking space while driving her personal vehicle, a 2005 Hyundai Sonata, when she struck Plaintiff Antoine Henderson. Ms. Matthews, who was hired by the Chicago Transit Authority (CTA) as a bus operator, testified that she was aware that driving her vehicle was against company policy, and that looking for a parking space was not part of her duties as a bus operator. (see Matthews' deposition transcript, p. 44.)

Plaintiff has alleged that Ms. Matthews' actions were within the scope of her employment because she was “on the clock,” and because there is a question of fact as to whether Matthews' negligent acts occurred within the scope of her employment.

I. Stephanie Matthews' Actions Were Outside the Scope of Employment

Stephanie Matthews acted outside the scope of her employment with the CTA in that her actions were 1.) Not of the kind she was employed to perform, and 2.) Not actuated by a purpose to serve the master.

For an employer to be vicariously liable for an employee's torts under the respondeat superior doctrine, the torts must have been committed within the “scope of the employment.” Pyne v. Witmer, 129 Ill. 2d 351, 359 (1989), 543 N.E. 2d 1304, 1308. It is the plaintiff's burden to show that there was a contemporaneous relationship between the tort and the scope of employment. Id. at 360. Illinois courts apply the criteria as stated in the Restatement (Second) of Agency § 228 when evaluating whether an act is done within the “scope of employment.” 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; and

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

Id.

“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.” Id. All three criteria of § 228 (1) must be met to conclude that an employee was acting within the scope of employment. Id.

The First District Appellate Court analyzed the three conjunctive criteria in Gaffney v. City of Chicago, (1998) 706 N.E. 2d 914. The Gaffney court held that although scope of employment was regarded as a “highly indefinite phrase,” there were criteria from the Restatement (Second) of Agency to help guide the inquiry. Id. at 45.

Some factors to be considered are “whether the act is one commonly done by servants; the time, place, and purpose of the act; the previous relations between the master and servant; whether the act is outside the enterprise of the master; whether or not the master has reasons to expect that such an act will be done; the similarity of the act done to the act authorized; and whether or not the instrumentality by which the harm is done has been furnished by the master to the servant.” Id.

§ 228(1)(c) examines to what extent the employee's conduct is motivated by serving the employer. Pyne, 129 Ill. 2d at 361. If the “deviation is exceedingly marked and unusual, as a matter of law the employee may be found to be outside the scope of employment.” Id.

Assuming arguendo that the court finds § 228(1)(b) criterion satisfied, Ms. Matthews' actions do not satisfy § 228(1)(a) or § 228(1)(c).

a. § 228(1)(a) - Stephanie Matthews' Actions Were Not “Of the Kind She is Employed to Perform”.

As the Illinois Supreme Court held in Bagent v. Blessing Care Corporation, 224 Ill.2d 154, the ultimate question posed by § 228(1)(a) is determining “whether or not the loss resulting from the employee's acts should justly be considered as one of the normal risks to be borne by the employer.”

In that case, a phlebotomist partook in Health Insurance Portability and Accountability Act (HIPAA) training and signed a confidentiality agreement. One day she drew blood from a patient and ran tests that showed the patient was pregnant. Id. at 158. Later that night, the phlebotomist met with friends at a local bar. Id. She accidentally told the bar waitress, the patient's twin sister, about the positive pregnancy result. Id. The patient found out about the disclosure, filed a lawsuit, and alleged the hospital was liable via respondeat superior.

The Illinois Supreme Court held the hospital was not liable because the phlebotomist's actions were not within the scope of employment. Id. at 172. They held that the job training and duties of a phlebotomist included drawing blood, performing drug screens, keeping records, conducting filing and billing, and delivering medical records to physicians' mail boxes. Id. at 167. They are “not employed to divulge confidential patient information....” Id. The court held that her actions did not satisfy the third criterion because it was not done with any intention to perform a job duty. Id. at 169-70. The Illinois Supreme Court reasoned that motivation to serve the employer meant the state of mind of the employee is material.

In the Gaffney case, a father purchased a handgun with his own money because the City of Chicago required all patrol officers to carry guns at work. 302 Ill. App. 3d 44. Knowing that there weren't enough storage lockers for all the officers' weapons, the City provided training for off-duty storage. Id. at 52. The City also provided free ammunition. Id. at 44. Whenever the father took the gun home, he placed it an unlocked, metal cabinet in his basement. Id. One day the officer's son took the gun from the cabinet to a party where he shot and killed the decedent.Id. at 42. The decedent's estate alleged that the father was acting within the scope of his employment when he stored the gun at home. Id. at 42.

According to the Restatement factors, the Gaffney court held storing the gun at home was reasonably within the scope of the father's employment. First, based on subsection (a), keeping the gun at home was incidental to the father's job as an officer. Id. at 52. The City trained officers on off-duty storage, deemed officers to be on-call 24 hours a day, and expected officers to respond to an emergency situation regardless of their physical location or off-duty work status. Id.Noting the father's testimony that he knew he was on-call 24 hours a day and stored the gun in a readily-accessible location to respond to emergency situations quickly also satisfied § 228(1)(b) because it functioned as a continuation of work duty. Id. at 53. Lastly, the Gaffney court held that storing the gun at home was motivated by a desire to serve the City. Id. at 54. The testimony was such that even though the father wanted to protect his family, he kept the gun ready because he was on-call at all times. Id.

In his response, Plaintiff cites the case Hogan v. City of Chicago, 319 Ill.App.531. In the Hogan case, the City of Chicago knew that the employee would be driving his vehicle. This case can be distinguished in that the CTA did not know, and in fact, expressly forbid such action, (see CTA rule bulletin 14(u), attached).

The instant case is on point with the Bagent case. Like the nurse in Bagent, Ms. Matthews' actions had noting to do with her job duties as a CTA bus operator, and she admits that the CTA has a rule that employees are not allowed to drive their personal vehicles while on the clock. (Matthews deposition, p. 33). Ms. Matthews broke the CTA's rules the same way that the Bagent nurse broke the hospital's (and HIPPA) rules.

Unlike Gaffney, where the City of Chicago knew, expected, and trained officers to store their weapons at home, the CTA never expected or trained employees to drive their personal vehicles while on the clock.

Not only was Ms. Matthews not hired or trained to drive her personal vehicle, she was expressly forbidden to do so. Ms. Matthews stated that a CTA bus operator is only allowed to get to the relief point by bus or by walking. They are not allowed to drive their personal vehicles. (see Matthews deposition transcript, p.19).

Stephanie Matthews was hired by the Chicago Transit Authority to operate a CTA bus to transport passengers. At the time of this accident, Ms. Matthews was driving her personal vehicle in an attempt to find a parking space. She testified that she was going to park her car on the street, then walk to the relief point to pick up her bus. (see Matthews deposition transcript, p.19).

Ms. Matthews never picked up her bus on January 23, 2007, did not work that day, and received no pay for that day. This is because she never performed “the duties that she was employed to perform,” namely, drive a CTA bus.

Like the hospital in Bagent, the CTA hired Ms. Matthews for a specific set of job duties that unequivocally did not include the act that precipitated the litigation. Ms. Matthews was hired to drive a bus, so any naturally-flowing responsibilities tied to driving a bus would subject the CTA to vicarious liability.

Striking someone while driving a CTA bus would be tied to her employment, and CTA would be held liable. However, striking someone with her personal vehicle while attempting to find a parking spot is in no way tied to her employment. Therefore, CTA should not be held liable.

Comment “d” and the subsequent illustrations in the Restatement (Second) of Agency § 229 support this conclusion:

d. Going to and from work. If the master supplies a servant with a vehicle in order that the servant may go to or from work, it is important to ascertain whether the vehicle is supplied primarily for the purpose of assisting the master's work or for the purpose of assisting the employee to perform what is essentially his own job of getting to or from work. The mere fact that the employer supplies a vehicle does not establish that those who avail themselves of it are within the scope of employment while upon it, especially if the use is merely casual. On the other hand, the fact that the master contracts to supply a vehicle or that the supplying of a means of access to the work is one of the inducements to the employment indicates that the operation of the vehicle is part of the master's work. If employees are required to use a particular vehicle and particularly if they are paid while in it, it would ordinarily be found that the driver of the vehicle is acting as the employer's servant.

Illustrations:

11. P employs A as a chauffeur, requesting him to drive the car to A's own garage for the night at the termination of the day's work, in order that A can arrive early in the morning. In driving to and from the garage to P's place of business, A is within the scope of employment.

12. P employs A, who lives two miles from P's office. Because A has difficulty in getting to the office on time, he persuades P to allow him to use an old car belonging to P. In driving to the office in this car A is not in the scope of employment.

(emphasis added) Rest. 2d. of Agency § 233, Comment d.

Based on the comment and illustrations, it is clear that Ms. Matthews' actions were not within the scope of her employment with the CTA. Illustration 12 is analogous to the present case in that both deal with individuals driving personal vehicles that are not conditions to employment. Therefore, they were not performing duties “of the kind” that they were employed to perform.

b. § 228(1)(c) : Stephanie Matthews' actions were not actuated by a purpose to serve the master.

Ms. Matthews was looking for a parking space for her personal vehicle when she struck the plaintiff. Her actions were focused on the personal nature of parking her car (actuated by a purpose to serve herself), not to serve the CTA. As our state supreme court held in Bagent, the state of mind of the employee is material in deciding whether the act was done to serve the master. Bagent, 224 Ill. 2d at 170.

c. Acts of a personal nature. Although the servant is authorized to act, the master is not liable for his conduct unless the servant is in fact acting in the employment and for his master's purposes. Getting ready to work or clearing away after work may be within the scope of employment. So, even such personal matters as eating and cleaning of the person may be so much a part of the work and under such control that it is part of the employment. This is true if the master assumes control over the general conduct of the servant during such period. If however, such acts are for the personal convenience of the employees and are merely permitted by the master in order to make the employment more desirable, the acts are not within the scope of employment. As in other situations, the fact that the acts are done upon the master's premises or with his instrumentalities is important but not conclusive.

Illustrations:

9. P, employing ball players, requires them to eat what he directs and under his supervision. The conduct of the players during meals while under P's control is within the scope of employment.

10. P furnishes a lavatory in which employees may wash, if they wish, before or after working hours, P retaining no control over it except with regard to keeping it clean. An employee turns on the water to wash his hands after hours and fails to turn it off. This act is not within the scope of employment.

(emphasis added) Rest. 2d. of Agency § 233, Comment c.

In the present case, Ms. Matthews was not performing her job as a bus operator, or any other act on behalf of the CTA. Nor was she driving her personal vehicle in compliance with a CTA mandate. She did clock in which is important, but, as the comment suggests, is not conclusive. Rest. 2d. of Agency § 233, Comment c. The overriding concern is the employee's state of mind. Bagent, 224 Ill. 2d at 170.

Ms. Matthews clearly knew that she was not acting on behalf of the CTA when she was driving her personal vehicle. This is evident because she contacted her PERSONAL insurance company after she struck the plaintiff. She also testified that she knew that if something happened while she was driving her personal car, the CTA would not be responsible. (Matthews deposition, pg. 33).

Ms. Matthews never made out a report with the CTA, nor did she file a claim or contact the CTA's attorneys after the accident. She also never notified the CTA when she was served with Plaintiff's Complaint. Her state of mind is clearly that she was not acting within the scope of employment when she struck the plaintiff.

Furthermore, Ms. Matthews' own insurance company has entered the case on her behalf, and reached a settlement agreement with the plaintiff, showing that both Ms. Matthews and her insurance company know that she was acting outside the scope of employment when the accident took place.

CONCLUSION

No reasonable juror could decide that Ms. Matthews was acting within the scope of her employment when she struck the plaintiff. Conduct of a servant is within the scope of employment if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; and (c) it is actuated, at least in part, by a purpose to serve the master. Gaffney, 706 N.E. 2d 914. All three criteria must be satisfied to find an employee acted within the scope of their employment. Because Ms. Matthews' actions clearly do not satisfy at least two of the three conjunctive criteria in § 228 (a and c), the CTA cannot be held vicariously liable based on the theory of respondeat superior.

WHEREFORE, Defendant CHICAGO TRANSIT AUTHORITY, moves that this court dismiss the Chicago Transit Authority from above-captioned case with prejudice, pursuant to rule 2-619(a)(9).

Respectfully Submitted,

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