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Albers v. Breen

March 02, 2004

[5] DAVID ALBERS AND CHRISTINE ALBERS, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF SHEA ALBERS, A MINOR, PLAINTIFFS-APPELLANTS,
v.
MELISSA BREEN; RURAL CHAMPAIGN COUNTY SPECIAL EDUCATION COOPERATIVE; STEVEN FINK; AND THE BOARD OF EDUCATION OF GIFFORD COMMUNITY CONSOLIDATED GRADE SCHOOL DISTRICT NO. 188, DEFENDANTS-APPELLEES.



[6] Appeal from Circuit Court of Champaign County No. 03L50 Honorable Michael Q. Jones, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Cook

[8]  Plaintiffs, David and Christine Albers, individually and on behalf of their son Shea Albers, filed a two-count complaint against defendants Melissa Breen, the Rural Champaign Special Education Cooperative (Cooperative), Steven Fink, and the Board of Education of Gifford Community Consolidated Grade School District No. 188 (Board) for alleged violations of the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) (740 ILCS 110/1 through 17 (West 2002)). Defendants filed motions to dismiss, and the circuit court dismissed the entire complaint with prejudice. We affirm.

[9]  According to the complaint, in early 2002 Shea Albers was in the seventh grade at Gifford Grade School. Sometime before February 25, 2002, three male students bullied him (the complaint does not say how). On February 25, Christine, Shea's mother, complained about the bullying to defendant Steven Fink, who was the principal of the school and superintendent of the school district. Christine did not tell Fink the names of the three bullies.

[10]   Because the bullying made Shea reluctant to go to school, Christine called the school on February 27, seeking the assistance of a social worker to counsel her son. Melissa Breen, an employee of defendant Cooperative, worked as a social worker providing services to the students at Gifford Grade School. Responding to Christine's call, Breen contacted her and made arrangements to counsel Shea. Christine told Breen that Fink wanted to know the names of the three bullies but that Shea did not wish to reveal them. Based on Breen's representation that she would not share their names with Fink, Christine told Breen who the three boys were.

[11]   Later that day, Breen met with Shea. She promised him that nobody would find out that he had revealed the names of the boys. Nevertheless, without authorization, Breen later told Fink their names. On or about March 6, 2002, Fink revealed to one of the three bullies that Shea had complained about him. Because of these disclosures by Breen and then Fink, the complaint alleges, Shea suffered emotional distress. This in turn required private counseling, and Shea was also forced to attend a different school the following year.

[12]   Count I of the complaint alleged that Breen's disclosure of the bullies' names to Fink and his subsequent disclosure to one of the bullies violated the Confidentiality Act. Count II sought damages under the Rights of Married Persons Act, sometimes referred to as the Family Expense Act (750 ILCS 65/15 (West 2002)), for the expenses of private counseling, tuition, and travel, allegedly resulting from Breen's and Fink's disclosures. The alleged liabilities of the Cooperative and the Board derive respectively from Breen's and Fink's disclosures.

[13]   Breen and the Cooperative filed a motion to dismiss under sections 2-615 (735 ILCS 5/2-615 (West 2002)) and 2-619 (735 ILCS 5/ 2-619 (West 2002)) of the Code of Civil Procedure (Procedure Code). They argued that they were protected from suit under the Confidentiality Act (740 ILCS 110/11(ii) (West 2002)), the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-201 (West 2002)), and the School Code (105 ILCS 5/24-24 (West 2002)).

[14]   Along with the section 2-619 motion, they submitted an affidavit from Breen. In the affidavit, Breen stated that she was a licensed school social worker and the only social worker at the school district. She reported to assistant principal Linda Hicks and to Fink. On or about February 27, 2002, Christine told her that Shea was being bullied and was depressed, and she asked Breen to speak to him. Breen told Christine that she would not tell the boys that Shea had identified them. She met with Shea that day for approximately 10 minutes. The affidavit stated further that Breen ordinarily does not counsel a student on the first meeting and did not consider this to be counseling. At this meeting, Shea told her he had been shoved and kicked.

[15]   Based on speaking with Christine and with Shea, Breen "assessed that Shea was at risk of further immediate, serious, and ongoing harm." She therefore told Fink about the bullying. She also told him that she had promised Shea that she would not tell the boys that Shea had identified them. She never did tell the boys this information.

[16]   Fink and the Board also filed a section 2-619 motion to dismiss, raising defenses under the Confidentiality Act, the Tort Immunity Act, and the School Code. These defendants submitted an affidavit from Fink, in which he stated that when he spoke to Christine on February 25, she did not know the names of the bullies but said she would get them. When he and Breen later met with two of the bullies on March 6 and one of them denied the bullying allegations, Fink told them that it involved Shea Albers. Both boys were given detentions, and on March 12, Fink gave the third boy a detention. Fink also stated in the affidavit that when he mentioned Shea to the boys, he believed it was necessary to protect Shea from physical and mental injury.

[17]   Plaintiffs responded by moving to strike several parts of Breen's and Fink's affidavits, largely on the ground that the affidavits were an attempt to negate essential allegations of the complaint. In support, they included an affidavit from Christine, in which she stated that she had attempted to get private counseling for Shea, but because she could not get an appointment for several weeks she had arranged to have Breen counsel him in the interim. She also stated that when she picked up Shea from school on March 6, he was upset because two of the bullies had been given detention. Christine immediately talked to Fink, who admitted he had disclosed Shea's identity to the boys. On March 8, she talked to Breen about why she and Fink had handled the situation as they had; Breen responded that she had attended a February 28 workshop on bullying, where she had learned that schools should take aggressive action when dealing with bullying. Christine's affidavit further stated that Fink was on vacation from February 27 to March 5 and that Breen told him about the bullying as soon as he returned.

[18]   The trial court heard arguments concerning the motions to dismiss and dismissed both counts of the complaint with prejudice. In doing so, the court also denied plaintiffs' motions to strike portions of the affidavits. The court ruled that Breen and the Cooperative were immune from suit under the Confidentiality Act (740 ILCS 110/11(ii) (West 2002)) and Fink and the Board under the Tort Immunity Act (745 ILCS 10/2-201 (West 2002)). It did not reach whether the School Code applied and did not explicitly rule on whether Breen was also protected by the Tort Immunity Act. The court denied Breen's motion to dismiss under section 2-615 of the Procedure Code. Plaintiffs now appeal the dismissal of the complaint as to both sets of defendants.

[19]   We review de novo the granting of a motion for involuntary dismissal under section 2-619 of the Procedure Code. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993). In considering such a motion, the court takes all well-pleaded facts in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. Calloway v. Kinkelaar, 168 Ill. 2d 312, 325, 659 N.E.2d 1322, 1329 (1995).

[20]   Under section 2-619, a defendant may raise "affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/ 2-619(a)(9) (West 2002). This affirmative matter may not negate the essential allegations of the plaintiff's cause of action (Rogalla v. Christie Clinic, P.C., 341 Ill. App. 3d 410, 422, 794 N.E.2d 384, 395 (2003)) but may include defenses such as immunity ...


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