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Doe v. Chicago Board of Education

November 18, 2004

JOHN DOE, A MINOR, BY HIS LEGAL GUARDIAN, D. JEAN ORTEGA-PIRON, GUARDIANSHIP ADM'R OF THE ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLEE,
v.
THE CHICAGO BOARD OF EDUCATION ET AL. (THE CHICAGO BOARD OF EDUCATION, APPELLANT).



The opinion of the court was delivered by: Justice Kilbride

Docket No. 96574-Agenda 21-September 2004.

In this case we must decide whether section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/4-102 (West 2000)), extending immunity to a local government entity providing a police protection service, applies in the case of a school board furnishing an attendant on a bus transporting disabled students. We hold that it does not.

The guardian of a disabled minor sought damages in tort against the Chicago Board of Education (Board) and Laidlaw Transit, Inc., a chartered bus company, for injuries the ward sustained as the result of an assault by a mentally impaired fellow passenger while riding to school on an unsupervised bus. The trial court allowed the Board's motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2000)), finding that the Board was immune from liability under section 4-102 of the Act. The trial court also allowed the Board's motion to dismiss pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2000)), finding that the complaint did not plead facts justifying its allegation of willful and wanton conduct. Plaintiff appealed both findings pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)).

The appellate court reversed, holding that willful and wanton conduct was adequately pleaded and that the Board was not immune under section 4-102 of the Act. 339 Ill. App. 3d 848. We granted the Board's petition for leave to appeal. 177 Ill. 2d R. 315(a). We also granted leave to the City of Chicago, the Illinois Municipal League, the Illinois Association of School Boards, and the Illinois Association of School Administrators to file amicus curiae briefs. 155 Ill. 2d R. 345. We now affirm the appellate court.

BACKGROUND

The complaint alleged that plaintiff's ward, a mentally impaired special education student at a school for maladjusted boys, was sexually assaulted by another male student passenger on the bus taking them to school. An attendant was employed by the Board to supervise the children on the bus ride to and from school. On the day of the assault, the attendant had called in sick and was not present on the bus. Thus, the complaint alleges, the Board knew or should have known that no attendant was present.

The assailant had a deviant sexual history, had been declared a sexually aggressive child and youth ward (SACY), and was under a "Protective Plan" requiring that he never be left unsupervised among other children. Hence, the complaint alleges that the Board knew or should have known that supervision of the children on the bus was required at all times. According to the complaint, the knowing failure to provide an attendant under these circumstances was willful and wanton conduct proximately resulting in injury to plaintiff's ward.

In its section 2-619 motion, the Board claimed immunity from liability because the conduct described in the complaint is the failure to prevent the commission of a crime and, accordingly, is within the police protection services immunity conferred by section 4-102 of the Act. In its section 2-615 motion, the Board also claimed that the allegations in the complaint are conclusory and inadequate to sustain the charge of willful and wanton conduct. The trial court allowed both motions and dismissed the complaint against the Board with prejudice. The court then entered Rule 304(a) findings, and plaintiff appealed. The action against the bus company remains pending in the trial court.

The appellate court reversed, holding section 4-102 of the Act inapplicable. 339 Ill. App. 3d at 856. The court distinguished its holding in A.R. v. Chicago Board of Education, 311 Ill. App. 3d 29 (1999), where section 4-102 immunity was applied to defeat a plaintiff's complaint under similar circumstances. The court noted that the Code requires liberal construction of pleadings "with a view to doing substantial justice between the parties." 735 ILCS 5/2-603 (West 2000). Although the complaint does contain allegations that the Board failed to prevent a sexual assault, it also contains allegations implicating willful and wanton conduct based on allowing the bus to operate without supervision, knowing that the perpetrator was not to be left unsupervised among other children. 339 Ill. App. 3d at 856.

The court then held that section 3-108 of the Act (745 ILCS 10/3-108 (West 2000)), extending immunity for failure to supervise an activity on public property, except in cases involving willful and wanton conduct, controlled the situation described in plaintiff's complaint. The court, relying on Doe v. Dimovski, 336 Ill. App. 3d 292 (2003), found that plaintiff's complaint adequately alleged willful and wanton conduct, and reversed and remanded the case to the trial court. 339 Ill. App. 3d at 858. We granted the Board's petition for leave to appeal. (177 Ill. 2d R. 315(a)).

ANALYSIS

In ruling on motions to dismiss pursuant to either section 2-615 or 2-619 of the Code, the trial court must interpret all pleadings in the light most favorable to the nonmoving party. On appeal, our review is de novo. In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997).

The Board submits that all of the allegations charging willful and wanton conduct in plaintiff's complaint describe different ways the Board could have, or should have, prevented a sexual assault. Hence, it argues that section 4-102 of the Act is clearly implicated. Nearly identical allegations were made by the plaintiff in A.R. v. Chicago Board of Education, 311 Ill. App. 3d 29 (1999). The court in that case held that section 4-102 of the Act applied and, the Board contends, the same result should follow in this case. Conversely, plaintiff contends that immunity does not apply because the Board was not providing police protection services in furnishing a bus attendant.

To resolve the central issue presented by this case, we must construe section 4-102. In cases of statutory construction, our primary goal is to determine the intent of the legislature. If we can discern the legislative intent from the plain language of the statute without resorting to other interpretive aids, we will do so, and we will not depart from the plain language of the statute by reading into it exceptions, limitations, or conditions ...


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