Jane Doe-3 v. White

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Jane Doe-3 v. White

State: Illinois

Court: 4th District Appellate

Docket No: 4-10-0137, 4-10-0138 cons., Rel

Case Date: 04/29/2011

Preview:NOS. 4-10-0137, 4-10-0138 cons. IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT JANE DOE-3, a Minor, Through Her Mother and Next Friend, JULIE DOE-3; and JULIE DOE-3, Individually, Plaintiffs-Appellants, v. (No. 4-10-0137) JON WHITE; McLEAN COUNTY UNIT DISTRICT NO. 5 BOARD OF DIRECTORS; JIM BRAKSICK; ALAN CHAPMAN; DALE HEIDBREDER; EDWARD HEINEMANN; and JOHN PYE, Defendants-Appellees. ---------------------------------------------------------JANE DOE-7, a Minor, Through Her Mother and Next Friend, JULIE DOE-7; and JULIE DOE-7, Individually, Plaintiffs-Appellants, v. (No. 4-10-0138) McLEAN COUNTY UNIT DISTRICT NO. 5 BOARD OF DIRECTORS; JIM BRAKSICK; ALAN CHAPMAN; DALE HEIDBREDER; EDWARD HEINEMANN; and JOHN PYE, Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Opinion Filed 4/29/11

Appeal from Circuit Court of Champaign County No. 08L209

No. 08L215

Honorable Michael Q. Jones, Judge Presiding.

JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Steigmann and McCullough concurred in the judgment and opinion. OPINION Plaintiffs Jane Doe-3 and Jane Doe-7 were second-grade students in defendant Jon White's class at Thomas Paine Elementary School in Urbana. Both girls were sexually abused by White. They each, along with their mothers, filed lawsuits against

the named defendants for their injuries. The claims at issue in this appeal are based on allegations that defendants knew that White had sexually abused students at his previous school, but failed to report the abuse, and instead allowed and facilitated White to secure employment in Urbana. Defendants filed motions to dismiss, claiming they owed no duty to plaintiffs. The trial court agreed with defendants and granted their motions. Plaintiffs filed these interlocutory appeals, challenging the court's dismissal orders. We consolidated the cases on review. For the reasons that follow, we find the court erred in dismissing the complaints and we remand for further proceedings. I. BACKGROUND Defendant White was employed as an elementary school teacher in the McLean County School District (McLean) during the 2002-05 school years. In August 2005, the Urbana School District (Urbana) hired White and he began teaching second grade at Thomas Paine Elementary School. During his first year at Urbana, the 2005-06 school year, plaintiff Jane Doe-3 was a student in White's second grade class at Thomas Paine. During White's second year at Urbana, the 2006-07 school year, plaintiff Jane Doe7 was a student in White's second grade class at Thomas Paine. When each plaintiff was a student in White's class, she was the victim of White's sexual misconduct, sexual harassment, sexual grooming, and sexual abuse. White's conduct is not in dispute. He was eventually convicted of molesting his students in both the McLean and Urbana school districts. Plaintiffs discovered that White had sexually harassed and abused his elementary school female students while

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teaching in McLean, and that the individual administrators at McLean had actual knowledge of White's conduct. Plaintiffs also learned that, due to White's conduct, the McLean administrators sought White's resignation from their district. Plaintiffs alleged the following: (1) no one at McLean reported White's abuse to the Illinois Department of Children and Family Services (DCFS), (2) one of the individual administrators at McLean created a falsely positive letter of reference or recommendation for White, (3) individual administrators at McLean entered into a severance agreement with White that concealed the sexual abuse, (4) the individual administrators falsified information on Urbana's verification-of-teaching-experience form submitted to McLean for completion, and (5) the individual administrators failed to inform Urbana of White's misconduct but, instead, "passed" him to that district. Plaintiffs refer to McLean's failure to inform Urbana, and its recommendation of White for employment when it had actual knowledge of White's conduct, as "passing." In their complaints, plaintiffs define "passing" as "a School District's conduct in passing a teacher who is known to have committed teacher-on-student sexual harassment and/or sexual grooming and/or sexual abuse to another School District without reporting [that conduct], *** concealing known prior teacher-on-student sexual harassment and/or sexual grooming and/or sexual abuse." A. Allegations in the Second-Amended Complaints In February 2009, plaintiffs separately filed second-amended complaints, each alleging various causes of action against White, Urbana, McLean, and various administrators of each district. Of the numerous causes of actions alleged, those at issue

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in this appeal involve only McLean and its individual administrators--counts III through XI of plaintiff Jane Doe-3's complaint and counts III through IX of plaintiff Jane Doe-7's complaint. In count III in both complaints, plaintiffs allege McLean Assistant

Superintendent Pye, Superintendent Chapman, Principal Heinemann, Assistant Principal Heidbreder, and Principal Braksick engaged in willful and wanton misconduct. They alleged that each individual, as White's supervisor, had a mandatory duty to report White's misconduct in accordance with the Abused and Neglected Child Reporting Act (Reporting Act) (325 ILCS 5/1 through 11.8 (West 2008)). They failed to do so. Instead, they concealed and conspired to conceal White's misconduct when they passed him to Urbana, willfully and wantonly, and with conscious disregard for the safety of all foreseeable minor female students, including plaintiffs. As a result of the individual administrators' willful and wanton conduct, plaintiffs suffered harm. In count IV in both complaints, plaintiffs alleged McLean was liable based on a theory of respondeat superior, as the individual administrators' conduct alleged in count III occurred within the scope of their employment. In count V in both complaints, plaintiffs' mothers alleged a cause of action for fraudulent concealment, claiming the individual administrators had a duty to report White's misconduct but, instead, deliberately and fraudulently concealed their actual knowledge of his misconduct by making fraudulent misrepresentations to Urbana regarding White. Urbana relied on the administrators' false representations in hiring White, thereby causing plaintiffs' mothers severe emotional distress. In count VI in both complaints, plaintiffs' mothers alleged McLean was liable

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based on a theory of respondeat superior, as the individual administrators' conduct alleged in count V occurred within the scope of their employment. In count VII in both complaints, plaintiffs alleged the individual administrators willfully conspired to violate their mandatory duty to report White's misconduct pursuant to the Reporting Act, causing plaintiffs harm. In count VIII in both complaints, plaintiffs alleged McLean was liable based on respondeat superior, as the alleged conspiracy occurred within the scope of their employment. In count IX in both complaints, plaintiffs' mothers alleged McLean and the individual administrators caused plaintiffs to suffer sexual abuse, sexual harassment, and sexual grooming, injuries for which plaintiffs have received medical and mental-health treatment. Such treatment has resulted in medical expenses for which plaintiffs' mothers are responsible pursuant to section 15 of the Rights of Married Persons Act(750 ILCS 65/15 (West 2008)), sometimes referred to as the family medical expense act and for which they seek reimbursement from McLean and the individual administrators. In count X of plaintiff Jane Doe-3's complaint, she alleged the individual administrators breached their fiduciary duties of trust to her by willfully and wantonly passing White to Urbana. She claimed this breach of trust proximately caused her harm. In count XI, plaintiff Jane Doe-3 alleged McLean was liable based on respondeat superior, as the alleged breach of fiduciary duty occurred within the scopes of their employment. Plaintiff Jane Doe-7 did not allege any cause of action related to a breach of fiduciary duty. B. Motions To Dismiss In March 2009, in both cases, McLean and the individual administrators filed

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motions to dismiss plaintiffs' second-amended complaint pursuant to section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2008)). Assistant Principal Heidbreder filed his own motion, as he was not represented by McLean's and the other administrator's attorney. However, Heidbreder's motions mirrored those of McLean and the other individual administrators. First, McLean and the individual administrators, including Heidbreder, claimed that pursuant to the public-duty rule, they owed no legal duty to plaintiffs because plaintiffs were never students in the McLean district. Second, they claim a private cause of action cannot be maintained for a failure to report under the Reporting Act. Third, plaintiffs suffered no pecuniary damages and, therefore, neither they nor their mothers can maintain a cause of action for fraudulent misrepresentation. Fourth, because plaintiffs have failed to allege any viable cause of action against the individual administrators, a claim for respondeat superior cannot be maintained against McLean. Fifth, pursuant to sections 2-604 and 2-604.1 of the Code of Civil Procedure (735 ILCS 5/2604, 2-604.1 (West 2008)), plaintiffs' complaints must be dismissed because they cannot seek punitive damages or include an ad damnum clause in a personal-injury action. In June 2009, the trial court conducted a hearing on defendants' motion to dismiss in both cases. After considering arguments of counsel, the court held that the public-duty rule applied and precluded plaintiffs' claims against McLean and the individual administrators. The court found that neither McLean nor its administrators owed a duty of care to plaintiffs. The court also found that there existed no cause of action for the concept plaintiffs referred to as "passing." Further, the court found fraud was not available as a cause of action because there had been no pecuniary loss.

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C. Motions To Reconsider In October 2009, plaintiffs separately filed motions to reconsider the trial court's dismissal of their second-amended complaints based on newly discovered evidence. According to plaintiffs, there was a related pending lawsuit in federal court in the Central District of Illinois, Peoria Division, filed by Jane Doe-10 and Jane Doe-11 (students in the McLean school district) against White, McLean, and the individual administrators (case No. 08-CV-1287). As part of discovery in that federal lawsuit, McLean and the individual administrators produced a copy of a January 2007 e-mail communication between Assistant Superintendent Pye and Julie Bastings, the teacher's union representative. According to plaintiffs, the message from Pye was a "smoking gun" in terms of demonstrating McLean's intent to "pass" White to Urbana. The e-mail stated as follows: "Please keep this information confidential, but I thought you would be interested in hearing that Jon White was arrested in Urbana today. I don't know the specific charges, but it appears to be much worse than the issues he faced here. I'm glad we took the steps we did to get him out of the district. I believe it was you who said that he was on a path to further problems." In December 2009, the trial court conducted a hearing on plaintiffs' motions to reconsider. After considering the arguments of counsel, the court denied plaintiffs' motions, finding as follows: "I respectfully disagree with Plaintiffs that this e-mail can

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somehow be construed to support an argument that they did have direct and immediate control over either of the Plaintiffs. As a side note, I think Defendants are also correct when they suggest that 2-204 is not completely restricted to vicarious liability to respondeat superior situations, but at any rate, because I believe the e-mail does not operate to allow the court to find now that either of the Plaintiffs was under the direct and the immediate control over any of the Unit 5 Defendants, then I believe that there continues to be no duty. If there is no duty, there is no tort. If there is no tort, there is no conspiracy. And if the Complaint was amended to include this e-mail, it is the court's view that then the court would not allow amendment because it would not cure the defect in the pleading." The court entered an order pursuant to Illinois Supreme Court Rule 304 (eff. Feb. 26, 2010), allowing plaintiffs to immediately appeal. These consolidated appeals followed. II. ANALYSIS A. Standard of Review In this appeal, plaintiffs challenge the trial court's orders granting defendants' section 2-619.1 motions to dismiss the second-amended complaints. Defendants had claimed (1) the complaints should be dismissed because plaintiffs were unable to plead any set of facts that would entitle them to relief (735 ILCS 5/2-615(a) (West 2008)) or (2) even

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if plaintiffs had sufficiently alleged otherwise viable causes of action, the claims were barred by the applicable statute of limitations and/or the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 through 10-101 (West 2008)) (735 ILCS 5/2-619 (West 2008))). Regardless of whether the court dismissed plaintiffs' complaints pursuant to section 2-615 or 2-619, or a combination of both sections pursuant to section 2-619.1, our standard of review is the same. We review de novo the court's orders of dismissal. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009). In doing so, we will accept as true all well-pleaded factual allegations. Morris v. Illinois Central R.R. Co., 382 Ill. App. 3d 884, 886 (2008). B. Plaintiffs' Allegations of Defendants' Liability Under our fact-pleading standard, plaintiffs must allege facts sufficient to bring a claim within a legally recognized cause of action. Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997). In the allegations relevant to this appeal, plaintiffs allege McLean and the individual administrators acted in a willful and wanton manner by passing White to their school district--an act which proximately caused plaintiffs' injuries. When pleading willful and wanton conduct, a plaintiff must establish the basic elements of a negligence claim plus the additional requirement that the defendant acted with a conscious disregard for the plaintiff's welfare. Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28 (2004). In other words, plaintiffs must allege the existence of a duty, a breach of that duty, an injury proximately caused by the breach, and that the breach was a result of a conscious disregard for plaintiffs' welfare. "Whether a duty of care exists is a question of law to be determined by the

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court." Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 422 (2004). To decide, the court must analyze the factual circumstances giving rise to the litigation. Hernandez v. Rapid Bus Co., 267 Ill. App. 3d 519, 522 (1994). Those circumstances include the nature of the relationship between the plaintiff and the defendant. If the law imposes upon the defendant an obligation to act reasonably for the plaintiff's benefit, based on the existence of a relationship, then an enforceable duty exists. See Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186 (2002). Defendants argue that the law has provided an answer to the question of whether a duty exists in this case. They claim, as the trial court held, that the public-duty rule applies here, meaning they owed no duty to protect individual citizens, such as plaintiffs, from harm. The public-duty rule is a common-law principle that protects a governmental entity from tort liability sought by an individual injured member of society. The basis upon which the rule is grounded is that the governmental entity owes a duty of care to the public at large, not to individual members of the public. See Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 32 (1998). The rule has historically been applied to cases involving conduct by policemen, firemen, or other first-responder-type personnel of various branches of governmental entities. However, the First District applied the rule to a school district for the first time in 1994. See Thames v. Board of Education of the City of Chicago, 269 Ill. App. 3d 210 (1994). They did so again in 1996. See Lawson v. City of Chicago, 278 Ill. App. 3d 628 (1996). Both of these cases held that the defendant school districts owed no duty to protect the plaintiffs, who were individual students in those school districts, separate or apart from the members of the district as a whole. The courts further held there

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existed no exception or special relationship that would have served to establish the school district's duty of care to its individual members. See Thames, 269 Ill. App. 3d at 219; Lawson, 278 Ill. App. 3d at 646. This "special-duty exception" applies when the otherwise immune governmental actor assumes a special relationship to an individual member of the general population. Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968). The special-duty exception operates to establish (1) a duty where there would otherwise be none under the commonlaw public-duty rule and (2) liability for negligence where it otherwise would not lie pursuant to the Tort Immunity Act. See Calloway v. Kinkelaar, 168 Ill. 2d 312, 326-27 (1995); Doe v. Calumet City, 161 Ill. 2d 374, 385-86 (1994). Illinois courts have established four elements that must be satisfied before the special-duty exception applies. Those are (1) the governmental entity must be uniquely aware of the particular danger or risk to which the plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the entity's part; (3) the specific acts must be affirmative or willful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the entity. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 508 (1990). Applying these elements to the facts of its school-district case, the Thames court found that the exception did not apply, as the plaintiff had failed to properly allege the existence of a special duty owed to her by the school district. Thames, 269 Ill. App. 3d at 216. The facts of Thames can be summarized as follows. The plaintiff student was shot inside a classroom at one of the defendant school district's high schools by a fellow student,

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who had concealed a firearm inside his book bag. Thames, 269 Ill. App. 3d at 211. Plaintiff sued the school district, asserting that it owed her a duty to exercise reasonable care for her safety. The school district allegedly breached that duty by failing to warn parents and students about the potential danger of the presence of weapons and by failing to take adequate measures, such as installing metal detectors, to eradicate the danger. Thames, 269 Ill. App. 3d at 214. The trial court had denied the school board's motion to dismiss, finding the complaint set forth sufficient allegations of a "special duty." Thames, 269 Ill. App. 3d at 211. The First District disagreed that plaintiff had sufficiently alleged the existence of a special duty. In the appellate court's opinion, the plaintiff had not pleaded sufficient facts to transform her "from a general citizen into an object of special concern." Thames, 269 Ill. App. 3d at 216. The court held the plaintiff did not and could not allege sufficient facts establishing that the school district had a unique awareness of the particular danger (the first element of a special-duty analysis) or that it had immediate and direct control of the plaintiff at the time of the injury (the fourth element of the analysis). Thames, 269 Ill. App. 3d at 219. The court reversed the trial court's order denying the school district's motion to dismiss. Thames, 269 Ill. App. 3d at 219-20. Similarly, in Lawson, the First District held that the plaintiff had failed to sufficiently allege facts that would impose a special duty upon the defendant school district or the defendant city to protect the plaintiff student from harm. Lawson, 278 Ill. App. 3d at 646. As in Thames, the plaintiff in Lawson was shot by a fellow student on school premises. Lawson, 278 Ill. App. 3d at 631. Unlike the high school in Thames, the high

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school in Lawson had installed metal detectors. Lawson, 278 Ill. App. 3d at 632. However, the court held that the city's voluntary undertaking of installing the detectors did not override the immunity that the district enjoyed under the Tort Immunity Act because installing the detectors involved a governmental function or conduct that was immune from liability. Lawson, 278 Ill. App. 3d at 635. The trial court here, relying on Thames (without mentioning Lawson), held that the public-duty rule applied, finding McLean owed no duty to individual students, especially those not in the same district. Further, the court held that the special-duty exception did not apply because McLean had no control over White when he committed the acts that had injured plaintiffs in Urbana. In announcing its decision to dismiss plaintiffs' complaints, the court stated as follows: "I believe the Public Duty Rule first of all does apply here. I believe Mr. Kearns [(McLean's attorney)] is correct when he says the Thames case does stand for the proposition that the Public Duty Rule applies to schools, and it essentially says that municipalities such as the Bloomington School District don't owe a duty to protect individual citizens." The court then applied the special-duty exception and found plaintiffs had failed to establish the fourth element, that of direct and immediate control, at the time the injury occurred. Contrary to defendants' argument in this appeal and the trial court's finding at the hearing on the motion to dismiss, we find the public-duty rule does not apply under

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the circumstances of this case. As mentioned above, the rule generally applies when a plaintiff alleges damages based on a governmental entity's failure to perform adequate governmental services. Examples of such services include allegations that the county's emergency dispatch system failed to work properly (Donovan v. Village of Ohio, 397 Ill. App. 3d 844, 845 (2010)); the police failed to timely rescue people from a pileup in a stairwell (Anthony v. City of Chicago, 382 Ill. App. 3d 983, 984 (2008)); the city failed to enforce a provision of the building code by granting a person a permit to construct access onto the roof of an apartment building ( Bowler v. City of Chicago, 376 Ill. App. 3d 208, 209 (2007)); the police failed to respond when dispatched to a call of a vehicle in a ditch (DeSmet v. County of Rock Island, 219 Ill. 2d 497, 500-01 (2006)); or the county medical examiner negligently performed an autopsy (Sims-Hearn v. Office of Medical Examiner, 359 Ill. App. 3d 439, 441 (2005)). This is not such a case, nor anything similar. This is not a case where McLean or the individual administrators have allegedly negligently performed their ordinary governmental, policing, or enforcement-type function. Instead, this is a case where plaintiffs allege the individual administrators engaged in intentional egregious conduct while in the course of their employment, and that the conduct harmed plaintiffs. It is not relevant to the analysis here whether the public-duty rule can or should be applied to a school district or in a school context. The context is not the determining factor. Instead, it is the nature of the alleged conduct of the individual administrators that bars the rule's applicability here. There is a great distinction between conduct that would give rise to a conclusion that a governmental entity owes a duty to protect the public at large and not individual citizens and conduct by the governmental

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entity that specifically creates the danger complained of. Plaintiffs have alleged conduct of the latter type. Without the application of the public-duty rule, we must determine whether plaintiffs have alleged sufficient facts to establish the existence of any duty running from McLean and the individual administrators to plaintiffs. To determine whether a duty exists, courts look to certain relevant factors, including the following: (1) the reasonable foreseeability that the defendant's conduct may injure another, (2) the likelihood of an injury occurring, (3) the magnitude of the burden of guarding against such injury, and (4) the consequences of placing that burden on the defendant. City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 391 (2004). Generally, there is no duty requiring one person to protect another from criminal activity by third persons absent a special relationship. Iseberg v. Gross, 227 Ill. 2d 78, 87 (2007). Here, there is no "special relationship" between the individual administrators of one school district and the students of another. However, even without a "special relationship," a person could still be liable for the criminal acts of a third party if that person performed a voluntary undertaking to protect another from harm. Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 217 (1988). Plaintiffs argue that the common law should impose a duty upon McLean and the individual administrators to protect plaintiffs from White's conduct based upon their knowledge of White's past conduct and the reasonable foreseeability of future like conduct. Plaintiffs claim that McLean and the individual administrators assumed a duty to plaintiffs, as Urbana students, by voluntarily undertaking the act of creating and sending a letter to

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Urbana endorsing White's ability to teach elementary school students. According to plaintiffs, McLean, through its individual administrators, voluntarily undertook this duty, but did so with a knowing and conscious disregard for plaintiffs' well-being by either recommending White or failing to warn of White's sexual abuse of his students in McLean. Section 324A of the Restatement (Second) of Torts, which Illinois courts have adopted (see Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 210-11 (1979)), addresses the concept of liability based on a voluntary undertaking and provides as follows: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking." Restatement (Second) of Torts

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