Appeal from the Circuit Court of Cook County No. 09L004313 The Honorable Drella Savage, Judge Presiding.
The opinion of the court was delivered by: Justice Fitzgerald Smith
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Sterba concur in the judgment and opinion.
¶ 1 Plaintiff John Doe, by his father and next friend Richard Doe, appeals from orders of the trial court dismissing with prejudice various counts of his complaint against defendant Lawrence Hall Youth Services pursuant to sections 2-619 and 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619, 2-615 (West 2008). We affirm.
¶ 3 Defendant is a residential private school providing services to children with severe emotional, behavioral, and learning challenges. Its program is a 24-hour-per-day, 7-days-per-week therapeutic treatment program. Defendant is registered and funded by the Illinois State Board of Education and operates its school pursuant to the Illinois School Code (105 ILCS 5/24-24 (West 2010)). In September 2007, defendant voluntarily accepted minor plaintiff John Doe into its school and residential treatment program. Later, during the years of 2008 to 2009, defendant employed Linda Pithyou as a teacher in its treatment, education, and residential program. During her employment, Pithyou allegedly engaged in an improper sexual relationship off school grounds.
¶ 4 Defendant maintained rules and regulations for children in its program, including establishing curfews and prohibiting alcohol and drug use both on-site and off-site. Nonetheless, according to the complaint, on numerous occasions between December 2008 and January 27, 2009, Pithyou picked plaintiff up at Lawrence Hall and consumed alcohol and marijuana with him. She also drove him to retail stores where she purchased clothing and cellular telephones for him. From January 27, 2009, to February 23, 2009, Pithyou on various occasions engaged in oral sex and intercourse with plaintiff.
¶ 5 In April 2009, plaintiff filed a complaint against defendant alleging negligent supervision (count I) and intentional infliction of emotional distress (count II) in connection with the alleged sexual misconduct perpetrated by Pithyou while plaintiff was a resident student at Lawrence Hall. Defendant filed a motion to dismiss. The circuit court granted the motion to dismiss without prejudice.
¶ 6 Plaintiff then filed an amended complaint in December 2009, and defendant filed a motion to dismiss pursuant to section 2-619. This is the motion at issue here. After hearing oral arguments by both parties, the court granted defendant's motion to dismiss.
¶ 7 In the amended complaint, plaintiff again alleged both negligent supervision and intentional infliction of emotional distress.*fn1 He alleged that defendant employed Pithyou and that Pithyou was his teacher. He alleged that he violated the school's regulations regarding curfew and the consumption of alcohol and drugs by sneaking out to meet Pithyou, who would take him away from Lawrence Hall and purchase and consume alcohol and marijuana with him. He also alleged that Pithyou would engage in oral sex and intercourse with him. Further, plaintiff alleged that "various employees of defendant" observed him coming home after curfew intoxicated and under the influence of drugs. He alleged:
"[N]umerous employees and agents of defendant's comprehensive treatment, educational and residential program were aware that minor plaintiff was receiving gifts from defendant's agent and employee, Linda Pithyou, as well as staying out all night, staying out past curfew with defendant's agent, and was coming back to [defendant's] facility under the influence of alcohol and/or drugs."
He argued that defendant had a special relationship with plaintiff as a voluntary custodian and protector and that, as a direct result of the special relationship, defendant had a duty to protect plaintiff "from a criminal attack by a third person, its employee and agent, Linda Pithyou." He argued that, even though defendant had this duty, it was nonetheless guilty by and through its agents, servants, and employees, of one or more of the following negligent acts and/or omissions:
"(a) failed to report suspicions of abuse pursuant to 325
(b) failed to supervise the minor plaintiff, JOHN DOE, to ensure compliance with its curfew regulations;
(c) allowed the minor plaintiff, JOHN DOE, to remain outside its residential treatment centers over night, despite no prior authorization to do so;
(d) failed to enforce its policy regarding consumption of alcohol and/or use of recreational drugs;
(e) failed to properly supervise the minor plaintiff, JOHN DOE, by failing to discover that its employee, Linda Pithyou, was picking up the minor plaintiff, JOHN DOE, in a car ...