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Jane Doe-3, A Minor, Through Her Mother and Next Friend v. Jon White; Mclean County Unit District No. 5 Board of Directors; Jim

April 29, 2011

JANE DOE-3, A MINOR, THROUGH HER MOTHER AND NEXT FRIEND, JULIE DOE-3; AND JULIE DOE-3, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
JON WHITE; MCLEAN COUNTY UNIT DISTRICT NO. 5 BOARD OF DIRECTORS; JIM BRAKSICK; ALAN CHAPMAN; DALE HEIDBREDER; EDWARD HEINEMANN; AND JOHN PYE, DEFENDANTS-APPELLEES.
JANE DOE-7, A MINOR, THROUGH HER MOTHER AND NEXT FRIEND, JULIE DOE-7; AND JULIE DOE-7, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
MCLEAN COUNTY UNIT DISTRICT NO. 5 BOARD OF DIRECTORS; JIM BRAKSICK; ALAN CHAPMAN; DALE HEIDBREDER; EDWARD HEINEMANN; AND JOHN PYE, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Champaign County No. 08L209 ,No. 08L215 Honorable Michael Q. Jones, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Steigmann and McCullough concurred in the judgment and opinion.

OPINION

Plaintiffs Jane Doe-3 and Jane Doe-7 were second-grade students in defendant Jon White's class at Thomas Paine Elementary School in Urbana. Both girls were sexually abused by White. They each, along with their mothers, filed lawsuits against the named defendants for their injuries. The claims at issue in this appeal are based on allegations that defendants knew that White had sexually abused students at his previous school, but failed to report the abuse, and instead allowed and facilitated White to secure employment in Urbana.

Defendants filed motions to dismiss, claiming they owed no duty to plaintiffs. The trial court agreed with defendants and granted their motions. Plaintiffs filed these interlocutory appeals, challenging the court's dismissal orders. We consolidated the cases on review. For the reasons that follow, we find the court erred in dismissing the complaints and we remand for further proceedings.

I. BACKGROUND

Defendant White was employed as an elementary school teacher in the McLean County School District (McLean) during the 2002-05 school years. In August 2005, the Urbana School District (Urbana) hired White and he began teaching second grade at Thomas Paine Elementary School. During his first year at Urbana, the 2005-06 school year, plaintiff Jane Doe-3 was a student in White's second grade class at Thomas Paine. During White's second year at Urbana, the 2006-07 school year, plaintiff Jane Doe-7 was a student in White's second grade class at Thomas Paine. When each plaintiff was a student in White's class, she was the victim of White's sexual misconduct, sexual harassment, sexual grooming, and sexual abuse.

White's conduct is not in dispute. He was eventually convicted of molesting his students in both the McLean and Urbana school districts. Plaintiffs discovered that White had sexually harassed and abused his elementary school female students while teaching in McLean, and that the individual administrators at McLean had actual knowledge of White's conduct. Plaintiffs also learned that, due to White's conduct, the McLean administrators sought White's resignation from their district. Plaintiffs alleged the following: (1) no one at McLean reported White's abuse to the Illinois Department of Children and Family Services (DCFS), (2) one of the individual administrators at McLean created a falsely positive letter of reference or recommendation for White, (3) individual administrators at McLean entered into a severance agreement with White that concealed the sexual abuse, (4) the individual administrators falsified information on Urbana's verification-of-teaching-experience form submitted to McLean for completion, and (5) the individual administrators failed to inform Urbana of White's misconduct but, instead, "passed" him to that district.

Plaintiffs refer to McLean's failure to inform Urbana, and its recommendation of White for employment when it had actual knowledge of White's conduct, as "passing." In their complaints, plaintiffs define "passing" as "a School District's conduct in passing a teacher who is known to have committed teacher-on-student sexual harassment and/or sexual grooming and/or sexual abuse to another School District without reporting [that conduct], *** concealing known prior teacher-on-student sexual harassment and/or sexual grooming and/or sexual abuse."

A. Allegations in the Second-Amended Complaints In February 2009, plaintiffs separately filed second-amended complaints, each alleging various causes of action against White, Urbana, McLean, and various administrators of each district. Of the numerous causes of actions alleged, those at issue in this appeal involve only McLean and its individual administrators--counts III through XI of plaintiff Jane Doe-3's complaint and counts III through IX of plaintiff Jane Doe-7's complaint. In count III in both complaints, plaintiffs allege McLean Assistant Superintendent Pye, Superintendent Chapman, Principal Heinemann, Assistant Principal Heidbreder, and Principal Braksick engaged in willful and wanton misconduct. They alleged that each individual, as White's supervisor, had a mandatory duty to report White's misconduct in accordance with the Abused and Neglected Child Reporting Act (Reporting Act) (325 ILCS 5/1 through 11.8 (West 2008)). They failed to do so. Instead, they concealed and conspired to conceal White's misconduct when they passed him to Urbana, willfully and wantonly, and with conscious disregard for the safety of all foreseeable minor female students, including plaintiffs. As a result of the individual administrators' willful and wanton conduct, plaintiffs suffered harm.

In count IV in both complaints, plaintiffs alleged McLean was liable based on a theory of respondeat superior, as the individual administrators' conduct alleged in count III occurred within the scope of their employment.

In count V in both complaints, plaintiffs' mothers alleged a cause of action for fraudulent concealment, claiming the individual administrators had a duty to report White's misconduct but, instead, deliberately and fraudulently concealed their actual knowledge of his misconduct by making fraudulent misrepresentations to Urbana regarding White. Urbana relied on the administrators' false representations in hiring White, thereby causing plaintiffs' mothers severe emotional distress.

In count VI in both complaints, plaintiffs' mothers alleged McLean was liable based on a theory of respondeat superior, as the individual administrators' conduct alleged in count V occurred within the scope of their employment.

In count VII in both complaints, plaintiffs alleged the individual administrators willfully conspired to violate their mandatory duty to report White's misconduct pursuant to the Reporting Act, causing plaintiffs harm. In count VIII in both complaints, plaintiffs alleged McLean was liable based on respondeat superior, as the alleged conspiracy occurred within the scope of their employment.

In count IX in both complaints, plaintiffs' mothers alleged McLean and the individual administrators caused plaintiffs to suffer sexual abuse, sexual harassment, and sexual grooming, injuries for which plaintiffs have received medical and mental-health treatment. Such treatment has resulted in medical expenses for which plaintiffs' mothers are responsible pursuant to section 15 of the Rights of Married Persons Act(750 ILCS 65/15 (West 2008)), sometimes referred to as the family medical expense act and for which they seek reimbursement from McLean and the individual administrators.

In count X of plaintiff Jane Doe-3's complaint, she alleged the individual administrators breached their fiduciary duties of trust to her by willfully and wantonly passing White to Urbana. She claimed this breach of trust proximately caused her harm. In count XI, plaintiff Jane Doe-3 alleged McLean was liable based on respondeat superior, as the alleged breach of fiduciary duty occurred within the scopes of their employment. Plaintiff Jane Doe-7 did not allege any cause of action related to a breach of fiduciary duty.

B. Motions To Dismiss

In March 2009, in both cases, McLean and the individual administrators filed motions to dismiss plaintiffs' second-amended complaint pursuant to section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2008)). Assistant Principal Heidbreder filed his own motion, as he was not represented by McLean's and the other administrator's attorney. However, Heidbreder's motions mirrored those of McLean and the other individual administrators. First, McLean and the individual administrators, including Heidbreder, claimed that pursuant to the public-duty rule, they owed no legal duty to plaintiffs because plaintiffs were never students in the McLean district. Second, they claim a private cause of action cannot be maintained for a failure to report under the Reporting Act. Third, plaintiffs suffered no pecuniary damages and, therefore, neither they nor their mothers can maintain a cause of action for fraudulent misrepresentation. Fourth, because plaintiffs have failed to allege any viable cause of action against the individual administrators, a claim for respondeat superior cannot be maintained against McLean. Fifth, pursuant to sections 2-604 and 2-604.1 of the Code of Civil Procedure (735 ILCS 5/2-604, 2-604.1 (West 2008)), plaintiffs' complaints must be dismissed because they cannot seek punitive damages or include an ad damnum clause in a personal-injury action.

In June 2009, the trial court conducted a hearing on defendants' motion to dismiss in both cases. After considering arguments of counsel, the court held that the public-duty rule applied and precluded plaintiffs' claims against McLean and the individual administrators. The court found that neither McLean nor its administrators owed a duty of care to plaintiffs. The court also found that there existed no cause of action for the concept plaintiffs referred to as "passing." Further, the court found fraud was not available as a cause of action because there had been no pecuniary loss.

C. Motions To Reconsider

In October 2009, plaintiffs separately filed motions to reconsider the trial court's dismissal of their second-amended complaints based on newly discovered evidence. According to plaintiffs, there was a related pending lawsuit in federal court in the Central District of Illinois, Peoria Division, filed by Jane Doe-10 and Jane Doe-11 (students in the McLean school district) against White, McLean, and the individual administrators (case No. 08-CV-1287). As part of discovery in that federal lawsuit, McLean and the individual administrators produced a copy of a January 2007 e-mail communication between Assistant Superintendent Pye and Julie Bastings, the teacher's union ...


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