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A.R. v. Chicago Board of Education

December 27, 1999

A.R., BY HER MOTHER AND LEGAL GUARDIAN, M.R., PLAINTIFFS-APPELLANTS,
v.
CHICAGO BOARD OF EDUCATION, DEFENDANT-APPELLEE, DEFENDANT.



Appeal from the Circuit Court of Cook County. No. 97 L 7744 Honorable Kathy M. Flanagan, Judge Presiding

The opinion of the court was delivered by: Justice Tully

On December 29, 1997, plaintiffs, A.R., and her mother and legal guardian, M.R., filed an amended complaint against defendants, Laidlaw Transit, Inc. and the Chicago Board of Education (Board) seeking compensation for injuries sustained by A.R. as the result of an alleged sex assault by another student while on the school bus. Count I of the complaint sought recovery against Laidlaw for negligence. Counts II and III sought recovery against the Board for negligence and willful and wanton misconduct, respectively, for failing to prevent or intercede in the assault on A.R. The Board moved to dismiss Counts II and III of plaintiffs' complaint pursuant to 5/2-619(a) of the Code of Civil Procedure. 735 ILCS 5/2-619(a) (West 1997). The circuit court granted defendant's motion, holding that section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/4-102) (West 1996) barred plaintiffs' claims of negligence and willful and wanton misconduct. The circuit court additionally found section 34-84(a) of the School Code (105 ILCS 5/34-84(a) (West 1996) barred plaintiffs' negligence claim. Pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)), the court entered a finding of no just reason to delay the enforcement or appeal of the order. From this dismissal, plaintiffs appeal. For the following reasons, we affirm.

Plaintiffs' complaint contained the following factual allegations. A.R. is a developmentally disabled female student who suffers from Down's Syndrome. In 1996, A.R. was enrolled in the Ray Graham Training Center, an educational facility for the developmentally disabled that was owned and operated by the Chicago Board of Education. At the time of her enrollment, bus transportation to and from the Center was provided by Laidlaw pursuant to a contract with the Board. An attendant named Homer Williams (Williams) was employed by the Board to accompany students during transport on the bus.

On July 1, 1996, A.R. was allegedly sodomized by a male student on the bus while being transported from the Center to her residence. At the time of the incident, Williams was present on the bus, but allegedly failed to prevent or intercede in the assault upon A.R. Plaintiffs' complaint asserted that the Board, through its agent Williams, had a duty to ensure the safety of the students on the bus, and negligently performed that duty when it failed to prevent or intervene in the assault on A.R. Plaintiffs' complaint also alleged the Board was guilty of willful and wanton misconduct by failing to prevent or intervene in the assault of A.R. when the Board had knowledge the male passengers on the bus were likely to commit sexual assaults on female passengers. Plaintiffs' complaint contained no specific facts to support the allegation the Board had knowledge of a propensity by male passengers to commit sexual assaults.

In dismissing plaintiffs' claims, the court characterized plaintiffs' allegations of negligence and willful and wanton misconduct against the Board as claims predicated upon a failure to prevent one student from committing a crime against another. The court therefore concluded section 4-102 of the Tort Immunity Act was applicable, and barred plaintiffs' claims of negligence and willful and wanton misconduct by disallowing recovery for failure to prevent a crime by a third party.

Similarly, applying section 34-84(a) of the School Code to plaintiffs' negligence claim, the court determined that while section 34-84(a) placed an affirmative duty upon the Board to maintain discipline among the students, that section served to immunize the Board from claims of ordinary negligence in the exercise of discipline.

Review of a trial court's order of involuntary dismissal based upon an affirmative defense is de novo. Epstein v. Chicago Board of Education, 178 Ill.2d 370, 383 (1997). When reviewing the propriety of an involuntary dismissal, a reviewing court must accept as true all well-pleaded facts in the complaint and all reasonable inferences that can be drawn from those facts in the light most favorable to the plaintiff. Corluka v. Bridgford Foods of Illinois, Inc. 284 Ill.App.3d 190, 192 (1996). However, an order of dismissal may be affirmed on any grounds which are called for by the record, regardless of whether the circuit court relied on those grounds or the circuit court's reasoning was correct. Wright v. City of Danville,174 Ill.2d 391, 399 (1996). Where facts are not at issue, the question on appeal following involuntary dismissal of claims barred by affirmative matter is whether dismissal was proper as a matter of law. Garcia v. Metropolitan Property and Casulaty Insurance Co., 281 Ill.App.3d 368, 371 (1996).

We first examine whether the dismissal of plaintiffs' negligence claim was proper under section 4-102 of the Tort Immunity Act. Section 4-102 provides, in pertinent part:

"Neither a local public entity nor a local employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection is provided, for failure to provide adequate police protection or service, failure to prevent commission of crimes, failure to detect or solve crimes, and failure to identify and apprehend criminals.***" 745 ILCS 10/4-102 (West 1996).

Plaintiffs maintain the Board was not entitled to immunity under section 4-102 because the immunity conferred therein applies only where a public entity is sworn and charged with the duty of law enforcement. As evidence of this, plaintiffs point to the wording of Article IV 's title as, "Police and Correctional Activities."

We do not believe the titling of Article IV as "Police and Correctional Activities" demonstrates a legislative intent to limit application of section 4-102 to public entities strictly charged with law enforcement duties. In conjunction with section 4-102, section 10/1-206 of the Act defines the term "local public entity" so as to specifically encompass school boards in its definition. 745 ILCS 10/2-106 (West 1996). It is a basic tenet of statutory construction that where a statute defines its own terms, those terms should be considered according to the statutory definitions provided. Holland v. City of Chicago, 289 Ill.App.3d 682, 686 (1997). Moreover, when construing immunities under the Tort Immunity Act, a court must view the statute as a whole, with all relevant parts considered together. (Kraft, Inc. v. Edgar, 138 Ill.2d 178, 189 (1990)).

Applying these principles, it is clear section 4-102 was intended to provide immunity not only to entities formally sworn to a duty of law enforcement, but to all public entities as defined within the confines of the Act. This interpretation of section 4-102 is in accordance with prior decisions of this court applying section 4-102. See Towner v. Board of Education, 275 Ill.App.3d 1024 (1995) (section 4-102 barred recovery against board of education for failure to prevent assault of one student upon another); Lawson v. City of Chicago, 278 Ill.App.3d 628, (1996) (section 4-102 barred recovery against board of education for failure to operate metal detectors to prevent one student from shooting another student); Hill v. Chicago Housing Authority, 233 Ill.App.3d 923 (1992) (section 4-102 barred recovery against housing authority for failure to provide adequate police services so as to prevent shooting of visitor in lobby of housing project).

Even construing plaintiffs' claims in the light most favorable to the plaintiffs, it is apparent plaintiffs sought to impose liability on defendant for failure to provide police services so as to prevent an assault upon A.R. Under the plain language of section 4-102, defendant was immunized from liability for negligence on this claim. Accordingly, we affirm the circuit court's dismissal of count II sounding in negligence.

We next examine whether dismissal of plaintiffs' claim alleging willful and wanton misconduct in count III was also barred by section 4-102. A claim of willful and wanton misconduct must demonstrate either an actual intention to harm or a reckless disregard for the safety of others, such as a failure to exercise ordinary care to prevent harm after knowledge of impending danger, or a failure to discover the danger when it could have been discovered by exercise of ordinary care. See Pomaro v. Community Consolidated School District 21, 278 Ill.App.3d 266, 269 (1995), citing Ziarko v. Soo Line R.R. Co., 161 Ill.2d 267, 275-76 (1994). Plaintiffs' complaint alleged the Board had knowledge male students were likely to commit sexual assaults on female passengers, but failed to support this allegation with any specific facts from which knowledge or propensity could be inferred. Although a reviewing court must take all well pled allegations as true when reviewing a dismissal under section 2-619, it does not have to accept conclusions of fact which are unsupported by specific facts. Golden v. ...


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