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12/22/94 PAULINE THAMES v. BOARD EDUCATION CITY

December 22, 1994

PAULINE THAMES, INDIVIDUALLY, AND MOTHER AND BEST FRIEND OF ROSHAWN THAMES, HER DAUGHTER, A MINOR, PLAINTIFF-APPELLEE
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, DEFENDANT-APPELLANT, AND TED D. KIMBROUGH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANT



INTERLOCUTORY APPEAL PURSUANT TO ILLINOIS SUPREME COURT RULE 308 FROM ORDERS OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS. HONORABLE SIDNEY A. JONES, III, JUDGE PRESIDING.

The Honorable Justice Gordon delivered the opinion of the court: McNULTY and O'brien, JJ. concur.*

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON delivered the opinion of the court:

This interlocutory appeal, brought pursuant to leave granted under Supreme Court Rule 308 (134 Ill. 2d R. 308), is taken from the trial court's denial of Defendant's motion to dismiss Plaintiff's personal injury action. The Plaintiff, Pauline Thames, instituted the instant action on behalf of her minor daughter, Roshawn Thames, for injuries Roshawn sustained as a result of the discharge of a handgun concealed in the book bag of a fellow high school student who was seated in front of her in a classroom at Orr High School. Liability was alleged against the Board of Education of the City of Chicago (the Board) and Ted C. Kimbrough, the General Superintendent of the Chicago Public Schools, for failing to install metal detectors or to adopt other means of weapons interdiction despite knowledge that guns and other weapons had been brought into some of the Board's schools, including Orr High School, on a number of previous occasions.

The Board and Ted Kimbrough moved to dismiss based on the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, pars. 1-101 et seq. now codified at 745 ILCS 10/1-101 et seq. (West 1992)) (the Tort Immunity Act). The circuit court granted Ted Kimbrough's motion but denied the Board's motion, finding the complaint set forth sufficient allegations of a "special duty." The court denied the Board's motion to reconsider but subsequently certified four questions for interlocutory review pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). The Board's petition for leave to appeal was granted.

The four questions certified for review can be consolidated into two: (1) whether the Board had a "special duty" to the injured minor under the facts alleged; and (2) whether the "special duty" exception operates to negate the immunities provided to the Board under the Tort Immunity Act. Because we answer the first question in the negative, we need not reach the second.

When ruling on a motion to dismiss a complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-619 now codified at 735 ILCS 5/2-619 (West 1992)), the pleadings are to be liberally construed; and the court must accept as true all well pleaded facts and reasonable inferences that can be drawn from those facts. (E.g., Noesges v. Servicemaster Co. (1992), 233 Ill. App. 3d 158, 598 N.E.2d 437, 174 Ill. Dec. 240; Schons v. Monarch Insurance Co. (1991), 214 Ill. App. 3d 601, 574 N.E.2d 83, 158 Ill. Dec. 289.) A trial court should dismiss a cause of action on the pleadings only if, after construing the documents in the light most favorable to the opposing party, it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. (E.g., Estate of Herington v. County of Woodford (1993), 250 Ill. App. 3d 870, 620 N.E.2d 463, 189 Ill. Dec. 495; Munizza v. City of Chicago (1991), 222 Ill. App. 3d 50, 583 N.E.2d 561, 164 Ill. Dec. 645.) To survive a motion to dismiss, a complaint must assert facts supporting the allegations of the cause of action; that is, the complaint must allege facts establishing a duty, breach of that duty and resulting injury. (Anthony v. City of Chicago (1988), 168 Ill. App. 3d 733, 523 N.E.2d 22, 119 Ill. Dec. 554.) It is not sufficient that the complaint merely allege a duty; the pleader, must allege facts from which the law will raise a duty. E.g., Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 414 N.E.2d 104, 46 Ill. Dec. 382.

Illinois courts have generally upheld the common law principle that municipalities are not liable in tort and owe no duty to individual members of the general public for failure to enforce local laws or ordinances (see, e.g., Arizzi v. City of Chicago (1990), 201 Ill. App. 3d 368, 559 N.E.2d 68, 147 Ill. Dec. 68); for a failure to prevent the tortious or unlawful acts of others (see, e.g., Santy v. Bresee (1984), 129 Ill. App. 3d 658, 473 N.E.2d 69, 84 Ill. Dec. 853; Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147; Adamczyk v. Zambelli (1960), 25 Ill. App. 2d 121, 166 N.E.2d 93); or for the negligent exercise of municipal authority pursuant to a governmental duty and for a governmental purpose (see, e.g., Leone v. City of Chicago (1993), 156 Ill. 2d 33, 619 N.E.2d 119, 188 Ill. Dec. 755; Fryman v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 611, 484 N.E.2d 909, 92 Ill. Dec. 178; Stigler v. City of Chicago (1971), 48 Ill. 2d 20, 268 N.E.2d 26). (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654, 152 Ill. Dec. 121, overruled on other grounds, McCuen v. Peoria Park District (September 22, 1994), No. 75976, 1994 WL 515553.) The rationale for denying liability was stated in Stigler v. City of Chicago to be as follows:

"If the failure of the city to enforce this ordinance should render it liable for injuries sustained thereby, the tremendous exposure to liability would certainly dissuade the city from enacting ordinances designed for the protection and welfare of the general public, and thereby the general public would lose the benefit of salutary legislative enactments." 48 Ill. 2d at 24-25, 268 N.E.2d at 29.

Case law has created three exceptions to the common law doctrine of governmental immunity. That doctrine does not apply where the governmental actions giving rise to liability are ministerial or routine and mechanical, as opposed to discretionary or requiring the exercise of judgment. (Fryman v. JMK/Skewer, Inc..) Under the "corporate" function exception, when a municipality engages in an enterprise that is not essentially a governmental function, the municipality may be liable when the negligence of its agents or employees causes harm to third persons. (Fryman v. JMK/Skewer, Inc.) A third common law exception to the doctrine of governmental immunity is the "special duty" or "special relationship" doctrine. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654, 152 Ill. Dec. 121. Cf. Leone v. City of Chicago (1993), 156 Ill. 2d 33, 47, 619 N.E.2d 119, 126, 188 Ill. Dec. 755 (Bilandic, J., dissenting) ("special duty" exception is not exception to common law doctrine of sovereign immunity or statutory immunity but is exception to common law "public duty" rule).) In accordance with the "special duty" exception, if circumstances arise whereby care or custody is exercised over a specific individual by a municipality or public official so that a duty to act on behalf of that individual comes into existence, the failure to carry out this duty in a non-negligent manner is actionable. (Fryman v. JMK/Skewer, Inc.) The affirmative exercise of care or custody over the individual elevates that person's status beyond that of a member of the public at large (Burdinie v. Village of Glendale Heights); and the agency's or officer's undertaking transforms the general citizen into an object of special concern (Santy v. Bresee (1984), 129 Ill. App. 3d 658, 473 N.E.2d 69, 84 Ill. Dec. 853).

Illinois courts have established four requirements or elements to the "special duty" exception. First enunciated in Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 414 N.E.2d 104, 46 Ill. Dec. 382, they are:

"1) the municipality must be uniquely aware of the particular danger or risk to which the plaintiff is exposed [citation];

2) there must be allegations of specific acts or omissions on the part of the ...


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