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03/24/97 SARAH C. MUELLER v. COMMUNITY CONSOLIDATED

March 24, 1997

SARAH C. MUELLER, A MINOR, BY KATHLEEN E. MATH, HER MOTHER, PLAINTIFF-APPELLANT,
v.
COMMUNITY CONSOLIDATED SCHOOL DISTRICT 54 AND ANTHONY D. ROBINSON, DEFENDANT'S-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Patrick E. McGann, Judge Presiding.

Released for Publication May 12, 1997.

The Honorable Justice O'brien delivered the opinion of the court. Cahill, J., with Theis, J., concurring.

The opinion of the court was delivered by: O'brien

JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiff appeals the order of the trial court dismissing her first amended complaint with prejudice.

Plaintiff, Sarah Mueller, was a student at Margaret Mead Junior High School of Community Consolidated School District 54 (the School District or defendant) in the Village of Elk Grove, Illinois. The school maintained a wrestling team, sponsored by and through the school with the approval of the School District. Plaintiff was a manager of the wrestling team. Defendant, Anthony D. Robinson (Robinson), was the wrestling coach.

Following afternoon wrestling practices, Robinson customarily drove various wrestling team members and managers home. On February 28, 1992, plaintiff attended wrestling practice. After practice, Robinson offered to drive Mueller to Robinson's residence so they could work on a personnel roster. While at his home, Robinson sexually assaulted Mueller.

Mueller, by and through her mother, Kathleen E. Math, filed a four-count complaint against both Robinson and the School District. On November 30, 1993, Mueller filed a four-count first amended complaint. The School District filed a three-part motion to dismiss. The trial court granted the School District's motion with prejudice. Plaintiff filed a motion to reconsider or, in the alternative, to permit her to file a second amended complaint. The trial court denied plaintiff's motion. This appeal followed. We review the matter de novo.

As a preliminary matter, we note that although the School District's motion to dismiss was divided into three sections, it failed to specify whether portions of the motion were brought pursuant to section 2-615 or 2-619 of the Code of Civil Procedure as required by section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619, and 2-619.1 (West 1994)) nor did the court draw a distinction as to whether it was dismissing plaintiff's complaint pursuant to section 2-615 or 2-619. Under these circumstances, we must review the ruling on defendant's nondesignated motion according to its grounds, its requests, or its treatment by the parties and the trial court. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484, 639 N.E.2d 1282, 1289, 203 Ill. Dec. 463 (1994). Motions properly brought under section 2-615 should be ruled upon before a court entertains motions properly brought under section 2-619. Talbert v. Home Savings of America, F.A., 265 Ill. App. 3d 376, 379, 638 N.E.2d 354, 357, 202 Ill. Dec. 708 (1994).

I

Section I of defendant's motion contends the complaint should be dismissed on grounds plaintiff improperly commingled and duplicated allegations and claims. Because defendant's argument attacks the legal sufficiency of the complaint, we review section I of defendant's motion under section 2-615. A section 2-615 motion should be granted only in those cases where the complaint fails to allege sufficient facts which, if proved, would entitle the plaintiff to relief. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 475, 575 N.E.2d 548, 555, 159 Ill. Dec. 50 (1991).

In support of its argument that plaintiff "improperly commingled and duplicated allegations and claims," defendant cites sections 2-603(a) and (b), 2-613(a), and 2-610(a) of the Code of Civil Procedure. 735 ILCS 5/2-603(a), (b), 2-613(a), 2-610(a) (West 1994). Sections 2-603(a) and (b) (735 ILCS 5/2-603(a), (b) (West 1994)) require that a complaint contain a "plain and concise statement of the pleader's cause of action" and that "each separate cause of action *** be stated in a separate count." Section 2-613(a) permits a party to "plead as many causes of action *** as they may have". (735 ILCS 5/2-613(a) (West 1994)) We find nothing in the above-cited rules to prohibit plaintiff from "restating the same claimed acts and omissions" in each count if such acts or omissions give rise to liability under multiple theories of recovery. Indeed, section 2-613(b) of the Code of Civil Procedure implicitly acknowledges the possibility of such an occurrence by permitting a party to state alternative causes of action, regardless of their consistency.

Here, plaintiff's complaint alleges that the same operative facts give rise to defendant's liability under four distinct theories of tort. Count I of plaintiff's complaint alleges that section 34-18.5 of the Illinois School Code (105 ILCS 5/1-1 et seq. (West 1994)) imposed a duty upon defendant to conduct a background check on Robinson, that it violated that statute, and as a result plaintiff was injured. Count II alleges that, apart from its statutory duty, the defendant owed plaintiff the duty of reasonable care and caution in the hiring and investigation of Robinson, that it violated that duty, and that plaintiff was injured. Count III alleges that, in addition to its statutory duty to Investigate before hiring, the defendant owed plaintiff the duty of reasonable care and caution in the supervision of Robinson after hiring, that it violated that duty, and that plaintiff was injured. Finally, count IV alleges that, in addition to its statutory duty to investigate before hiring, the defendant owed plaintiff the nondelegable duty to refrain from causing injury to plaintiff.

Because plaintiff's complaint plainly and clearly attempts to allege four different causes of action, namely, negligence per se (count I), negligent hiring (count II), negligent supervision (count III), and breach of a nondelegable duty (count IV), we find plaintiff has fulfilled the requirements of sections 2-603(a) and (b) and 2-613(a) of the Code of Civil Procedure and defendant's claim is without merit.

Section 2-610(a) of the Code of Civil Procedure (735 ILCS 5/2-610(a) (West 1994)) applies only to "answer[s] and subsequent pleading[s]", not to complaints. Accordingly, defendant's contention section 2-610(a) supports its argument that plaintiff's complaint ...


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