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February 14, 1997


Appeal from the Circuit Court for the 12th Judicial Circuit, Will County, Illinois. No. 95--L--13572. Honorable Herman S. Haase, Judge, Presiding.

Released for Publication March 20, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Thomas J. Homer, Justice, Honorable Peg Breslin, Justice. Justice Homer delivered the Opinion of the court. Lytton, P.j., concurs. Breslin, J., dissents [dissent to follow].

The opinion of the court was delivered by: Thomas

The Honorable Justice HOMER delivered the Opinion of the court:

Plaintiff Maria Grant, as administrator of the estate of her deceased son, Jason Grant, filed a wrongful death action against the Board of Trustees of Valley View School District No. 365-U and Jean Owen, a school counselor. The trial court granted the defendants' motion to dismiss plaintiff's three-count complaint and the plaintiff appeals. We affirm.


According to the complaint, on October 27, 1994, Jason, a senior at Romeoville High School, told other students that he was going to kill himself. He also wrote suicide notes. Several students reported Jason's intentions to Jean Owen, a school counselor. Owen questioned Jason but took no action other than calling his mother, Maria Grant. Owen advised Maria that she should take Jason to a hospital for drug overdose treatment, but she did not discuss Jason's suicide threats. On the way to the hospital, Jason jumped from the car. Later that day he jumped off a highway overpass and killed himself.


In count I of her complaint, Maria alleges that defendants owed Jason a special duty to exercise reasonable care for his safety which they breached by failing to call an ambulance or other medical personnel, for failing to inform Maria of Jason's intentions, and for failing to implement a suicide prevention program. In count II, with the same factual allegations, plaintiff pleads defendants' breach of an ordinary negligence standard, and in count III, Maria alleges that defendants knew or should have known that great caution should be used in dealing with teenagers with suicidal tendencies and that their failure to take reasonable precautions or to notify Maria was intentional and constituted wilful and wanton conduct.

The defendants responded with a motion to dismiss, pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1994)), arguing that they were immune from liability and further that the complaint failed to state a cause of action for wilful and wanton conduct. The trial court agreed with the defendants and dismissed the complaint with prejudice.

When reviewing a trial court's order granting a motion to dismiss, a reviewing court must accept as true all well-pleaded facts. Dennis E. v. O'Malley, 256 Ill. App. 3d 334, 628 N.E.2d 362, 194 Ill. Dec. 865 (1993). On appeal from the dismissal of a complaint, this court applies the de novo standard of review. Toombs v. City of Champaign, 245 Ill. App. 3d 580, 615 N.E.2d 50, 185 Ill. Dec. 755 (1993).

The first issue is whether count I of the complaint states a cause of action for breach of a special duty. The "special duty" doctrine was established as an exception to the common law principle that municipalities are generally not liable in tort to members of the general public for failure to enforce local ordinances or for their negligent exercise of municipal authority, such as in providing police and fire protection. The special duty doctrine has been extended by Illinois courts as an exception, also, to the immunities provided under the Local Government and Governmental Employees Tort Immunity Act, 745 ILCS 10/1--101 et. seq. (West 1994) ( Tort Immunity Act). See Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 565 N.E.2d 654, 152 Ill. Dec. 121 (1990), and Leone v. City of Chicago, 156 Ill. 2d 33, 619 N.E.2d 119, 188 Ill. Dec. 755 (1993). The special duty can arise when the municipality develops a relationship to a specific individual, as opposed to the public at large.

Because we hold below that the Tort Immunity Act is inapplicable to the allegations of the complaint, consideration of the special duty exception becomes moot. Moreover, even if the case were to be decided under the provisions of the Tort Immunity Act, the special duty theory advanced by plaintiff in count I would fail for two additional reasons. First, plaintiff has cited no Illinois case which would extend the special duty exception to schools or school employees. In addition, in order for the special duty exception to apply it must be established, inter alia, that the injury occurred while the plaintiff was under the direct and immediate control of employees or agents of the municipality. Bell v. Village of Midlothian, 90 Ill. App. 3d 967, 970, 414 N.E.2d 104, 106, 46 Ill. Dec. 382 (1980); Fryman v. JMK/Skewer, Inc., 137 Ill. App. 3d 611, 617, 484 N.E.2d 909, 912, 92 Ill. Dec. 178 (1985).

The instant complaint alleges that Jason left school with his mother. At the time of his death, he was no longer under the direct and immediate control of the defendants. ...

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