The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiffs Candice Williams and Daniel Sigers have filed a fifteen-count third amended complaint against defendants Christine Anderson, Marylin Reid, Matthew Wagner, the Crete-Monee Board of Education, and the Crete-Monee High School. Plaintiffs allege that Juan N. Garcia, Richard P. Pasquini, and Reid unlawfully seized Williams using excessive force, resulting in the wrongful death of her fetus.*fn1 Anderson, Wagner, and the Crete-Monee School District (the "School District Defendants") have moved to dismiss Counts I, II, III, and XV. For the reasons discussed below, the School District Defendants' motion to dismiss is denied as to Counts I, II, and III, and granted as to Count XV.
The facts alleged in the complaint are taken as true for purposes of the instant motion. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). Williams learned she was pregnant in March 2008 while a senior at Crete-Monee High School. On April 3, 2008, she decided to participate in track team practice after school. The track team ended practice and began gathering their belongings to leave the school at about 5:15 p.m. Williams sat on the bench just outside the gym waiting for her school bus, which generally arrived between 5:30 and 5:50 p.m.
At approximately 5:28 p.m., Reid and another security guard began asking students in the hallway to leave the building. Williams moved to the vestibule to wait just inside. The security guards then told her to go all the way outside. She informed them that she was cold, pregnant, and suffering from anemia and that she wanted to stay in the breezeway until her bus arrived. Anderson, a teacher, came up and said, "that's trespassing, call the police and have her removed."
Williams refused to leave the building, but off-duty police officers Garcia and Pasquini forcibly removed her. She was allegedly "pushed, grabbed, dragged, thrown to the ground then smashed into the ground" for approximately ten to fifteen minutes, and she was subsequently arrested for criminal trespass. Plaintiffs assert that Williams lost her fetus as a result of defendants' conduct.
On March 25, 2009, Williams was tried for a class B misdemeanor of criminal trespass. On April 17, 2009, the state criminal court granted her motion for a directed verdict.
The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to rule on its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court accepts all well-pleaded allegations of the complaint as true and draws all reasonable inferences in the plaintiff's favor. McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006). Nevertheless, the complaint must plead sufficient facts to suggest plausibly that the plaintiff is entitled to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Analysis Counts I, II, and III (Wrongful Death)
Against all defendants, plaintiffs' wrongful death claims include:
negligent conduct (Count I); intentional conduct (Count II); and a
survival action (Count III). With respect to the School District
Defendants, plaintiffs allege that their negligent and intentional
conduct proximately caused the death of the fetus in that they
"encouraged and allowed" Garcia, Pasquini, and Reid*fn2
to take actions that caused the death, and that they refused
to seek medical attention for Williams while she was injured on school
grounds under their supervision.
The School District Defendants argue that they did not owe a duty of care to protect Williams or her fetus from the police officers' conduct and that they were not the proximate cause of the death. In response, plaintiffs argue that the School District Defendants mislead the court.*fn3 Plaintiffs clarify that they are actually alleging that negligent and intentional conduct proximately caused the death of the fetus because the School District Defendants refused to seek medical attention. Thus, the issues as framed by plaintiffs are whether the School District Defendants had a duty to call for medical care and whether the failure to call for medical care was a proximate cause of the death.
With respect to duty of care, plaintiffs cite three cases, none of which are factually similar to the instant case. Plaintiffs argue that East v. City of Chicago, 719 F. Supp. 683 (N.D. Ill. 1989), holds that failure to provide medical care is a proper basis for a wrongful death claim. But East is not helpful in determining whether the School District Defendants had a duty to call for medical care. The decedent in East was in custody of police officers and personnel when they denied medical attention. Similarly, in Torres v. City of Chicago, 123 F. Supp. 2d 1130, police officers responding to a report of a shooting waited nearly an hour and a half before calling for medical care for the decedent, who had multiple gunshot wounds. Finally, plaintiffs cite to a section of Haist v Wu, 235 Ill. App. 3d 799, 816 (1st Dist. 1992), in which the appellate court considered a directed verdict on the question ...