791 N.E.2d 1283 (Ill.App. 1 Dist. 2003), 1-02-0207, Doe ex rel. Ortega-prion v. Chicago Bd. of Educ.
|Citation:||791 N.E.2d 1283, 339 Ill.App.3d 848, 274 Ill.Dec. 872|
|Party Name:||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).|
|Case Date:||June 13, 2003|
|Court:||Court of Appeals of Illinois|
[Copyrighted Material Omitted]
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.
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.
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 [339 Ill.App.3d 851] 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 cusdy 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...
To continue readingFREE SIGN UP