Carlson v. Chi. Transit Auth., Corp.

2014 IL App (1st) 122463

10 N.E.3d 426

381 Ill.Dec. 341

Rolland CARLSON and Barbara Carlson, Plaintiffs–Appellants,

v.CHICAGO TRANSIT AUTHORITY, a Municipal Corporation; and Steven Mixon, Individually and as Agent and/or Employee of Chicago Transit Authority, Defendants–Appellees.

No. 1–12–2463.

Appellate Court of Illinois, First District, Sixth Division.

May 9, 2014.

Morici, Figlioli & Associates, of Chicago (James J. Morici, Jr., and Michael G. Miller, of counsel), for appellants.

Karen G. Seimetz, Stephen Wood, and Rachel Kaplan, all of Chicago Transit Authority, of Chicago, for appellees.

OPINION

Justice LAMPKIN delivered the judgment of the court, with opinion.

¶ 1 In this personal injury action, plaintiffs Rolland and Barbara Carlson sued defendants, the Chicago Transit Authority (CTA) and Steven Mixon, a CTA employee, for negligence concerning injuries plaintiffs sustained when they were passengers on a CTA bus driven by Mixon. Defendants moved for summary judgment, and the trial court granted that motion.

¶ 2 Plaintiffs appealed, contending summary judgment was precluded by the existence of genuine issues of material fact as to whether the driver was negligent for overreacting to a potential collision and slamming on the brakes in a hard and sudden manner.

¶ 3 We affirm the judgment of the circuit court, which did not err in granting summary judgment in favor of defendants. We hold that there was no evidence establishing any negligent conduct by defendants, there were no genuine issues of material fact, and defendants were entitled to judgment as a matter of law.

¶ 4 I. BACKGROUND

¶ 5 On the afternoon of December 12, 2009, plaintiffs boarded a CTA bus that was driven by defendant Mixon and was traveling northbound on Michigan Avenue. Plaintiffs paid their fare and were walking in the aisle and looking for two seats together. There were three lanes for northbound traffic, and Mixon drove the bus from the curb and merged into the middle lane. The bus traveled approximately 60 to 80 feet in the middle lane when Mixon immediately applied the brakes after seeing a taxicab cut into the middle lane in front of the bus from the curb lane. As a result of the sudden stop, Mrs. Carlson fell in the aisle onto her back and hit her head on the floor of the bus. She lost consciousness for a few seconds. Mr. Carlson was thrown to the front of the bus. He was unconscious and bleeding from the top of his head and mouth.

¶ 6 Plaintiffs filed a complaint alleging negligence against defendants for: operating the bus in a manner that caused plaintiffs to be thrown to the bus floor; failing to properly train and supervise Mixon in the safe operation of a bus; failing to maintain reasonable control over the bus; and causing the bus to accelerate from a stop when it was not safe to do so.

¶ 7 In their answers, defendants denied the allegations of negligence and asserted the affirmative defense of comparative negligence. Specifically, defendants alleged plaintiffs failed to take proper hold of available railings or hand bars, failed to sit in available seats, and were otherwise careless or negligent.

¶ 8 Defendants moved for summary judgment, arguing that there were no genuine issues of material fact and plaintiffs could not make a prima facie case of negligence against defendants. Specifically, defendants argued that plaintiffs could not establish that Mixon failed to exercise due care when operating the bus because another vehicle suddenly cut off the bus in which plaintiffs were standing passengers. In addition to the pleadings and a videotape of the incident, defendants attached to the motion the depositions of defendant Mixon, eyewitnesses Sally Jo Gerard and Marsha Kremer, and plaintiffs Mr. and Mrs. Carlson.

¶ 9 Defendant Mixon testified that he has been licensed and trained to operate the bus since April 2006 and described the conditions of his training and supervision. At the time of the incident, traffic was fairly heavy. The weather was clear, the streets were dry, and the visibility was good. A few seconds after plaintiffs boarded the bus, Mixon closed the doors and slowly proceeded away from the bus stop. He drove northbound on Michigan Avenue and continuously scanned the road for traffic and checked his rear-view mirror to monitor any problems with his passengers. Mixon was very familiar with this Michigan Avenue route. Less than 10 seconds after he pulled away from the bus stop, he merged into the middle lane. Mixon commonly used the middle lane to avoid being stuck in the curb lane behind right-turning vehicles. His bus was two to three car lengths behind the car in front of him, and Mixon was trying to increase that distance. The bus was traveling about 5 to 10 miles per hour, and Mixon was “covering the brake.”

¶ 10 Mixon testified that the bus had driven about 60 to 80 feet away from the bus stop when a northbound taxicab in the curb lane suddenly cut into the middle lane, directly in front of the bus. The cab driver did not use his turn signal. Mixon immediately applied the brakes to avoid hitting the cab. Mixon testified that he had enough time and distance to avoid hitting the cab without having to slam on the brakes as hard as possible. The cab accelerated and drove away. The bus came to a complete stop, and Mixon pulled up the parking brake to assess the situation because plaintiffs had fallen in the bus aisle. He contacted “control” and reported the accident. The police arrived at the scene very quickly, and Mixon spoke to the police and distributed courtesy cards to bus passengers so they could document what they had seen. An ambulance was summoned to assist Mr. Carlson.

¶ 11 Sally Jo Gerard testified that she, her neighbor Marsha Kremer, and Gerard's daughter were passengers on the bus at the time of the incident. Gerard and Kremer were seated in the front, right side of the bus. Their seats faced the interior aisle of the bus looking west. The bus was traveling slowly while it was in the middle lane. Gerard was looking out the front and side windows of the bus and saw a car, which had been stopped in the curb lane, dart into the middle lane in front of the bus. She did not observe anything that led her to think that Mixon was not operating the bus in a safe manner or was not keeping a proper lookout for vehicles. The stop was not violent and caused Gerard only to jerk forward. However, she saw Mr. Carlson come flying down the aisle past her and then his wife followed. Gerard had “never seen anyone move like that.”

¶ 12 Marsha Kremer was seated next to Gerard, on Gerard's right side. Kremer testified that she was looking out the front windshield of the bus so she would not miss her stop. Kremer testified that the bus “was not going fast at all, ten miles an hour” when it was in the middle lane. As the bus was almost even with a cab that was stopped in the curb lane, the cab took off very fast, left the curb lane and cut over into the middle lane in front of the bus. Mixon quickly applied the brakes when the cab changed lanes. Kremer thought that the bus and cab would have collided if Mixon had not applied his brakes in that manner. Although the sudden stop did not cause Gerard to bump into Kremer, Kremer saw Mr. and Mrs. Carlson fly almost horizontally past her line of vision. Mr. Carlson ended up at the very front of the bus lodged against the fare box. He seemed unconscious. Kremer did not observe anything that led her to think that Mixon was not operating the bus in a safe manner or was not keeping a proper lookout for vehicles.

¶ 13 Plaintiff Barbara Carlson testified that, after she and her husband paid their fares, they proceeded down the aisle toward the empty seats at the rear of the bus. The bus was in motion, but she was able to maintain her balance and hold onto hand bars as she walked down the aisle. Prior to her fall, she never looked back at Mixon or out the side windows of the bus. Mrs. Carlson testified that the driver took off fast and then slammed on the brakes. She “got slammed down” to the floor, and her head hit the floor. She was confused when she regained consciousness. She saw her husband lying unconscious at the front of the bus and yelled at Mixon for slamming on his brakes. She told a paramedic at the scene that “the bus driver slammed on his brakes and we went flying and were both knocked unconscious.”

¶ 14 Plaintiff Rolland Carlson testified that Mixon “took off fast” after the Carlsons paid their bus fare. Mr. Carlson said that he had walked about two-thirds of the way to the back of the bus when he suddenly was pushed or thrust to the back of the bus.

¶ 15 The video footage of the incident, which contained a time stamp, showed: the bus's slow start-up after the plaintiffs boarded the bus; the plaintiffs walking in the aisle toward the back of the bus; a car suddenly cutting in front of the bus from the curb lane; the effects on the seated passengers—who were not jostled out of their seats—and other standing passengers—who did not fall—of Mixon applying his brakes; and plaintiffs falling to the floor. The video established that at least 5 to 10 seconds passed between the time the bus entered the middle lane and the time Mixon applied the brakes.

¶ 16 In response to the summary judgment motion, plaintiffs argued that genuine issues of material fact existed concerning whether Mixon was properly trained and negligently operated the bus.

¶ 17 The trial court, which viewed the video footage of the incident and reviewed the evidentiary material, granted summary judgment in favor of defendants. Citing Malone v. Chicago Transit Authority, 76 Ill.App.2d 451, 222 N.E.2d 93 (1966), the trial court found no evidence in the record to establish negligence on the part of defendants.

¶ 18 Plaintiffs moved the trial court to reconsider its ruling, arguing the court erroneously applied the existing law. Plaintiffs argued the court should have followed Browne v. Chicago...