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Doe v. Dimovski

January 15, 2003

JANE DOE, PLAINTIFF-APPELLANT,
v.
STEVEN DIMOVSKI, INDIV. AND AS AGENT OF WESTMONT COMMUNITY UNIT SCHOOL DISTRICT NO. 201, AND WESTMONT SENIOR HIGH SCHOOL, DEFENDANTS (BOARD OF EDUCATION OF WESTMONT COMMUNITY UNIT SCHOOL DISTRICT NO. 201, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Du Page County. No. 00-L-841 Honorable Patrick J. Leston, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

Plaintiff, Jane Doe, appeals the judgment of the circuit court of Du Page County that dismissed certain counts of her complaint against defendant Board of Education of Westmont Community Unit School District Number 201 (the Board) pursuant to section 2--619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(9) (West 2000)).

Defendants Steven Dimovski, individually and as an agent of Westmont Community Unit School District No. 201, and Westmont Senior High School are not parties to the present appeal. We reverse and remand the cause for further proceedings.

Plaintiff filed a complaint against defendants on February 15, 2000. The suit stems from allegations of sexual abuse in which plaintiff alleges that, from November 1998 through May 1999, Dimovski, a teacher and varsity basketball coach at Westmont High School (Westmont), engaged in an inappropriate sexual relationship with plaintiff, who was under the age of 18 and a student of Westmont at the time. Of relevance to the present appeal are counts V through VII of plaintiff's first amended complaint, which are directed against the Board and sound in negligence (count V), negligent infliction of emotional distress (count VI), and willful and wanton misconduct (count VII).

Count V of the complaint alleges that, before he initiated the inappropriate sexual relationship with plaintiff, Dimovski engaged in a course of inappropriate sexual harassment and abuse and made inappropriate sexual advances and statements to a female student under the age of 18 at Westmont, including expressing his desire to see the student naked, requesting that she perform a strip tease for him, and following her to her place of work and her residence, where the sexual harassment, advances, innuendo, and suggestion continued. Count V further alleges that the female student and her mother provided this information before November 1998 to Jennifer Gliwa-Bell, an agent, servant, and employee of the Board, and Carole Wyrostek, also an agent, servant, and employee of the Board; that neither Gliwa-Bell nor Wyrostek undertook a thorough investigation of this complaint, informed anybody else of this complaint, undertook measures to prohibit Dimovski from engaging in this inappropriate behavior in the future, or contacted the Department of Children and Family Services (DCFS) about this complaint; and that the Board knew or should have known that Dimovski was engaging in inappropriate sexual conduct with another female student at Westmont and the Board's failure to properly handle this information ultimately led to and precipitated the commencement of the sexual abuse of plaintiff.

Count V further alleges that the Board owed a duty to its students to provide and employ appropriate educational services and competent teachers and counselors and to safeguard its students from harmful conduct that might be undertaken by its teachers. It also alleges that the Board breached these duties by, inter alia, failing to hire competent and adequately trained personnel; failing to undertake a thorough investigation into previous complaints of inappropriate sexual behavior leveled by a female student against Dimovski; failing to adequately supervise its agents, servants, and employees; allowing Dimovski to abuse his position of authority through a course of sexual abuse; and failing to notify DCFS about previous complaints of inappropriate sexual behavior involving Dimovski.

In count VI, plaintiff alleges that the careless and negligent acts or omissions alleged in count V proximately caused injuries to plaintiff, including emotional distress. In count VII, plaintiff alleges that the Board knew or should have known that its failure to properly investigate previous complaints of sexual indiscretions leveled against its teachers would likely and probably result in injury to its students, including plaintiff; that the Board knowingly and intentionally disregarded the substantial risk and danger that it knew or should have known would result; and that, by disregarding this knowledge of substantial risk posed by this conduct, the Board was guilty of willful and wanton misconduct in, inter alia, failing to thoroughly investigate these previous complaints of inappropriate behavior made against Dimovski.

On August 23, 2001, the Board filed a motion to dismiss plaintiff's complaint pursuant to section 2--615, asserting that plaintiff failed to sufficiently plead a cause of action. The Board also filed a section 2--619(a)(9) motion to dismiss, arguing in the alternative that it was entitled to immunity based on sections 2--201 and 3--108 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2--201, 3--108 (West 2000)). The trial court denied the Board's section 2--615 motion to dismiss, but granted the Board's section 2--619(a)(9) motion, finding that sections 2--201 and 3--108 of the Tort Immunity Act immunized the Board from liability. Plaintiff timely appeals.

Immunity under the Tort Immunity Act is affirmative matter properly raised in a section 2--619(a)(9) motion to dismiss. Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995). Where a cause of action has been dismissed pursuant to a section 2--619 motion, the questions on appeal are whether a genuine issue of material fact exists and whether the moving party is entitled to a judgment as a matter of law. Brown v. King, 328 Ill. App. 3d 717, 721 (2001). On appeal, review is de novo. Brown, 328 Ill. App. 3d at 721.

Plaintiff first argues that the trial court erred in finding that section 2--201 of the Tort Immunity Act applied. Section 2--201 gives governmental entities immunity from liability for injuries resulting from "the determination of policy or the exercise of discretion." 745 ILCS 10/2--201 (West 2000). In order to obtain immunity under section 2--201, the particular act or omission sought to be immunized must be both discretionary and involve a policy choice. Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 484 (2002). Plaintiff contends that, once the Board was informed that its employee had sexually abused a female student, any discretion the Board may have had was removed by the requirement that the matter had to be reported to DCFS under the Abused and Neglected Child Reporting Act (Reporting Act) (325 ILCS 5/1 et. seq. (West 2000)).

The Reporting Act provides that school personnel "having reasonable cause to believe" a child known to them in their professional or official capacity may be an abused child "shall immediately report or cause a report to be made to [DCFS]." 325 ILCS 5/4 (West 2000). The Illinois Administrative Code describes and categorizes specific harms that must be reported. 89 Ill. Adm. Code §300 app. B. (2002). "Sexual exploitation" is defined as "[s]exual use of a child for sexual arousal, gratification, advantage or profit," including, but not limited to, "indecent solicitation of a child/explicit verbal enticement." Ill. Adm. Code §300 app. B at 8 (2002). Sexual exploitation is a "Priority I" harm, which generates the initiation of an immediate investigation by DCFS. 89 Ill. Adm. Code §300 app. B at 8 (2002). Given the statute's mandatory language, we find in this case that the Board was divested of the exercise of discretion and the determination of policy based on the failure to report. See Mueller v. Community Consolidated School District 54, 287 Ill. App. 3d 337, 346 (1997)(section 2--201 did not grant school board immunity for failure to conduct required criminal background check); Munizza v. City of Chicago, 222 Ill. App. 3d 50, 55 (1991)(immunity did not attach because local ordinance negated discretion).

Relying on Doe I v. Board of Education of Consolidated School District 230 Cook County, Illinois, 18 F. Supp. 2d 954 (N.D. Ill. 1998), the Board asserts that the reporter must determine first what constitutes "reasonable cause to believe" and second, whether such abuse likely occurred; reaching such a conclusion clearly entails the exercise of some degree of judgment and discretion. In Doe I, high school students sued a school district and school personnel, alleging that a teacher's sexual relationship with them resulted in numerous statutory violations, including the failure to report the alleged conduct. The school personnel were aware of the "rumors" of the alleged sexual relationships, but the plaintiffs unequivocally denied them when the school conducted a preliminary investigation. The court held that the statutory duty to report sexual abuse under the Reporting Act required some degree of judgment and discretion, and it concluded that section 2--201 of the Tort Immunity Act applied to the plaintiffs' claim based on the failure to report. Doe I, 18 F. Supp. 2d at 961.

We disagree with the notion that school personnel are vested with the discretion to determine what constitutes "reasonable cause to believe" or whether such abuse actually occurred. The term "reasonable cause to believe" as used in the Reporting Act is equivalent to the term "suspect" as used in the Code of Federal Regulations (45 C.F.R. §1340. 3-3(d)(2) (1977)). 1977 Ill. Att'y Gen. Op. 173. The Reporting Act requires that a credible report of suspected child abuse must be turned over to DCFS. DCFS is assigned the authority, or the discretion, to substantiate the accuracy of all reports of known or suspected child abuse or neglect. 325 ILCS 5/7.3 (West 2000). Thus, once school personnel suspect or should suspect that a child may be sexually abused, they are divested of any discretion to determine what constitutes "reasonable cause to believe" or whether such abuse actually occurred. If school personnel were allowed to determine whether reasonable cause existed or whether such abuse actually occurred before reporting the matter to DCFS, the goal of protecting children from sexual abuse would be undermined. Although the school board may initially investigate the credibility of any rumors of sexual abuse, whether there was reasonable cause to report the allegations is an objective determination. For purposes of the Reporting Act, the issue of whether school personnel have reasonable cause to report suspected allegations of abuse is determined by the objective belief of a reasonable person, not the school personnel's subjective belief.

In Doe I, when the rumors of sexual abuse were denied by the plaintiffs themselves, there was no reason to suspect sexual misconduct. Here, however, by virtue of the agents' first-hand knowledge when they were notified by the female student and her mother, the Board had constructive notice of the alleged sexual misconduct. Thus, once the female student and her mother told Gliwa-Bell and Wyrostek that Dimovski sexually exploited the student, neither Gliwa-Bell nor Wyrostek had any choice but to report the suspected abuse to DCFS. Also, the Board does not allege any facts that would have rendered the allegations incredible at the time they were made. Moreover, the Board could not exercise a judgment call as ...


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