DOE EX REL. ORTEGA-PRION v. BD. OF EDUC., 1-02-0207.

• Citation: 274 Ill.Dec. 872,339 Ill. App.3d 848,791 N.E.2d 1283
• Decision Date: 13 June 2003
• Docket Number: No. 1-02-0207.,1-02-0207.
• Parties: John DOE, a Minor, by His Legal Guardian, D. Jean ORTEGA-PRION, Guardianship Administrator of the Department of Children and Family Services, Plaintiffs-Appellants, v. CHICAGO BOARD OF EDUCATION, Defendant-Appellee (Laidlaw Transit, Inc., Defendant).
• Court: United States Appellate Court of Illinois

791 N.E.2d 1283

339 Ill. App.3d 848

274 Ill.Dec. 872

John DOE, a Minor, by His Legal Guardian, D. Jean ORTEGA-PRION, Guardianship Administrator of the Department of Children and Family Services, Plaintiffs-Appellants, v. CHICAGO BOARD OF EDUCATION, Defendant-Appellee (Laidlaw Transit, Inc., Defendant).

No. 1-02-0207.

Appellate Court of Illinois, First District, Fifth Division.

June 13, 2003.

Lowery & Smerz, Ltd., Chicago (Mary Jo Smerz, of counsel), for Appellant.

Hinshaw & Culbertson, Chicago (Daniel L. Boho, Christine L. Olson and Peter H. Carlson, of counsel), for Appellee.

Justice QUINN delivered the opinion of the court:

Plaintiff John Doe, a minor, by his legal guardian D. Jean Ortega-Piron, filed a third amended complaint in the circuit court of Cook County against defendants Chicago Board of Education (Board) and Laidlaw Transit, Inc., after he was allegedly sexually assaulted while a passenger on a school bus operated by Laidlaw. Counts II and III of the complaint alleged negligence and willful and wanton misconduct, respectively, against the Board, which moved for dismissal of the counts pursuant to sections 2-615 and 2-619(a)(9) of the Illinois Code of Civil Procedure (Civil Code) (735 ILCS 5/2-615, 2-619(a)(9) (West 2000)). The trial court granted the Board's motion and found that there was no just reason to delay enforcement or appeal of its order under Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)). On appeal, plaintiff contends that the trial court erred in summarily dismissing the two counts because they were properly pleaded and the Board is not immune from liability under section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4-102 (West 2000)). For the reasons set forth below, we affirm the dismissal of the count alleging negligence, reverse the dismissal of the count alleging willful and wanton misconduct and remand this cause for further proceedings.

BACKGROUND

In his third amended complaint, plaintiff alleged that on or about October 2, 1999, he was a 12-year-old special education student at Montefiore school in Chicago suffering from mental illness and developmental and cognitive disabilities. At all relevant times, the Board had retained Laidlaw to provide school bus transportation to students attending Montefiore school, which was a "special education school for socially maladjusted boys." It was alleged that every day children were transported to Montefiore school, a driver for Laidlaw operated the bus and an attendant also rode the bus. Plaintiff alleged that the Board knew he had certain mental incapabilities and, as a result, had to be guarded, supervised and protected while in the Board's custody and control.

Plaintiff alleged that on October 2, 1999, he was riding on a school bus operated by a Laidlaw employee, when he was sexually assaulted by a male student who had a deviant sexual history and, as a result of having been declared a sexually aggressive child and youth (SACY) ward, was under a "Protective Plan." Plaintiff alleged in his complaint that the Board knew or should have known that the protective plan required that the SACY ward never be left unsupervised among other children. At all relevant times, the Board employed a bus attendant to supervise the children on the trip to and from Montefiore school. On the day of the sexual assault, the Board knew or should have known that the school bus attendant, whose job was to supervise the children, called in sick. Plaintiff alleged that despite having a duty to do so, the Board did not have an attendant on the bus at the time he was assaulted, which occurred in the afternoon, on the ride home.

In count I of his third amended complaint, which is not currently before this court, plaintiff alleged negligence against Laidlaw. In count II, plaintiff alleged negligence against the Board because it: (1) failed to ensure that a school bus attendant was present on the bus while he was a passenger; (2) failed to transport him with reasonable safety; (3) failed to maintain discipline on the bus transporting him; (4) failed to prevent the perpetrator from sexually assaulting him; (5) failed to respond to his requests for assistance in protecting himself against the sexual assault; (6) failed to provide adequate supervision on the bus while knowing its passengers were developmentally disadvantaged; (7) failed to provide adequate supervision on the bus while knowing that one of the passengers was sexually deviant; (8) failed to put adequate protections or precautions in place to protect passengers from harming each other; (9) failed to ensure that the contractor chosen to transport him had adequate safety equipment, such as seatbelts, on the bus; (10) failed to employ and enforce safety measures, such as requiring passengers to sit in place; and (11) was otherwise negligent in providing safe transportation to him.

In count III, plaintiff alleged that the Board was guilty of willful and wanton misconduct where, with knowledge of the fact that male passengers on the bus were likely to attempt to commit sexual assaults on other passengers, the Board: (1) failed to transport plaintiff with reasonable safety; (2) failed to maintain order on the vehicle chosen to transport plaintiff; (3) failed to prevent plaintiff's fellow passenger from assaulting him; (4) failed to provide adequate supervision on the bus; (5) failed to ensure that the contractor chosen to transport plaintiff had adequate safety equipment, such as seat belts, on its vehicles; (6) failed to employ and enforce safety measures, such as requiring passengers to sit in place; (7) failed to have a bus attendant on duty the day plaintiff was assaulted; and (8) failed to act to prevent plaintiff from being sexually assaulted. Plaintiff also alleged willful and wanton misconduct on the part of the Board based upon its deliberately allowing the bus to run without supervision despite knowing the attendant had called in sick and the bus driver was a substitute. Finally, plaintiff alleged in count III that the Board failed to respond to plaintiff's requests for assistance in protecting himself against the sexual assault.

The Board moved for summary dismissal of counts II and III pursuant to sections 2-615 and 2-619(a)(9) of the Civil Code. Regarding section 2-615, the Board argued that plaintiff had failed to allege facts sufficient to establish willful and wanton misconduct. As for the other affirmative matter under section 2-619(a)(9), the Board, in reliance upon A.R. v. Chicago Board of Education, 311 Ill.App.3d 29, 243 Ill.Dec. 697, 724 N.E.2d 6 (1999), argued that section 4-102 of the Tort Immunity Act, which allows immunity for the failure of a public entity to provide police protection, barred the claims of negligence and willful and wanton misconduct against it.

In response, plaintiff argued that section 4-102 was inapplicable to the facts of this case. Plaintiff also argued that the Board was required to maintain discipline pursuant to sections 24-24 and 34-84a of the School Code (105 ILCS 5/24-24, 34-84a (West 2000)). Additionally, plaintiff asserted that recent amendments to section 3-108 of the Tort Immunity Act (745 ILCS 10/3-108 (West 2000)) narrowed the scope of immunity for public entities to exclude liability for injuries for willful and wanton misconduct resulting from the supervision of an activity on public property. The trial court granted the Board's motion to dismiss counts II and III of the third amended complaint and plaintiff now appeals that ruling.

ANALYSIS

Plaintiff contends that the trial court erred in granting the Board's motion for summary dismissal. He argues that this case is controlled by sections 24-24 and 34-84a of the School Code, which state that employees in the public school system have a duty to supervise students in order to maintain discipline, and that section 4-102 of the Tort Immunity Act is inapplicable. Plaintiff further asserts that the 1998 amendment to section 3-108 of the Tort Immunity Act, excluding immunity for public entities and public employees for willful and wanton misconduct, mandates reversal of the trial court's dismissal of his complaint.

A motion to dismiss brought under section 2-615 attacks the legal sufficiency of a complaint and alleges only defects on the face of the complaint. Bryson v. News America Publications, Inc., 174 Ill.2d 77, 86, 220 Ill.Dec. 195, 672 N.E.2d 1207 (1996). The question to be decided when ruling on a section 2-615 motion to dismiss is whether the plaintiff has alleged sufficient facts which, if proved, would entitle the plaintiff to relief. Urbaitis v. Commonwealth Edison, 143 Ill.2d 458, 475, 159 Ill.Dec. 50, 575 N.E.2d 548 (1991).

Section 2-619(a)(9) of the Civil Code allows for involuntary dismissal where "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2000). An "affirmative matter" in a section 2-619 motion to dismiss is one that negates the plaintiff's cause of action. Illinois Graphics Co. v. Nickum, 159 Ill.2d 469, 486, 203 Ill.Dec. 463, 639 N.E.2d 1282 (1994). Immunity under the Tort Immunity Act is an affirmative matter that can properly be raised in a section 2-619(a)(9) motion to dismiss. Bubb v. Springfield School District 186, 167 Ill.2d 372, 378, 212 Ill.Dec. 542, 657 N.E.2d 887 (1995).

When ruling on a motion to dismiss pursuant to both sections 2-615 and 2-619, the court must accept all well-pleaded facts in the petition as true and draw all reasonable inferences in favor of the plaintiff. See Storm & Associates, Ltd. v. Cuculich, 298 Ill.App.3d 1040, 1047, 233 Ill. Dec. 101, 700 N.E.2d 202 (1998). The resolution of either motion involves a question of law; thus, our review is de novo. Storm & Associates, 298 Ill.App.3d at 1047, 233 Ill.Dec. 101, 700 N.E.2d 202.

School Code

Plaintiff...