The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justice Thomas concurred in the judgment and opinion. Justice Freeman specially concurred, with opinion. Justice Garman concurred in part and dissented in part, with opinion. Justice Karmeier dissented, with opinion, joined by Justice Theis.
¶ 1 At issue in this case is whether defendants owed plaintiffs a duty of care. The trial court dismissed plaintiffs' claims for willful and wanton conduct, finding defendants owed no duty to plaintiffs. The appellate court reversed and remanded for further proceedings. 409 Ill. App. 3d 1087. For the reasons that follow, we agree with the appellate court that plaintiffs have alleged a duty owed by defendants, but we do so on grounds other than those relied on by the appellate court.
¶ 3 Plaintiffs, Jane Doe-3 and Jane Doe-7, were sexually abused by their teacher, Jon White, at Thomas Paine Elementary School in Urbana, Illinois. Prior to his employment at Thomas Paine, White was employed as a teacher in the McLean County school district at Colene Hoose Elementary School in Normal, Illinois. Plaintiffs, along with their mothers, Julie Doe-3, and Julie Doe-7, filed suit against White, the Urbana School District No. 116 Board of Directors (Urbana), and individual administrators at Urbana,*fn1 as well as the defendants involved in this appeal-the McLean County Unit District No. 5 Board of Directors (McLean) and five individual administrators at McLean-Jim Braksick, Alan Chapman, Dale Heidbreder, Edward Heinemann, and John Pye (McLean administrators).
¶ 4 Jane Doe-3's second amended complaint and Jane Doe-7's amended complaint were filed in February 2009. Both complaints contain the same allegations against McLean and the McLean administrators. Plaintiffs alleged that White was employed as an elementary school teacher at Brigham Elementary School in Bloomington, Illinois, and Colene Hoose Elementary School in Normal, Illinois, during the 2002 through 2005 school years. Defendants Chapman and Pye were employed by the McLean County school district as the superintendent and assistant superintendent of Operations and Human Resources, respectively. Defendants Braksick and Heinemann were employed as principals, and Heidbreder was employed as an assistant principal, at Colene Hoose Elementary School.
¶ 5 Plaintiffs alleged that, at some time between 2002 and 2005, the McLean administrators acquired actual knowledge of White's teacher-on-student sexual harassment, sexual abuse, and/or sexual "grooming"*fn2 of minor female students. However, defendants never recorded these incidents in White's personnel file or employment record. In addition, defendants failed to make timely mandated reports of the abuse by White and failed to investigate parental complaints. Also, according to the complaint, during the 2004-05 school year, defendants disciplined White for "sexual harassment, sexual grooming, and/or sexual abuse" of minor female students. The discipline occurred in October 2004, and again in April or May 2005. White was "kept out of his classroom because of his teacher-on-student sexual harassment and/or sexual grooming and/or sexual abuse." In 2005, prior to the close of the 2004-05 school year, defendants entered into a severance agreement with White which concealed his sexual abuse of students. Also in 2005, defendants "created a falsely positive letter of reference for White" which concealed known sexual abuse of female students.
¶ 6 Plaintiffs further alleged that defendants "passed"*fn3
White to the Urbana school district while concealing his past sexual abuse by
intentionally giving false information regarding White's employment to
the Urbana school district. Plaintiffs alleged that, during White's
transition to Urbana in 2005, defendants falsified employment
information about White on an Urbana school district "Verification of
Employment Form" by stating that White had worked during the entire
school year. This statement concealed the fact that White had been
subject to disciplinary removal from his classroom twice during the
2004-05 school year and left before the end of the school
¶ 7 In August 2005, White was hired as a teacher at Thomas Paine
Elementary School in the Urbana school district. Plaintiffs alleged that Urbana hired White "while relying on false information provided by McLean County School District." Plaintiff Jane Doe-3 was a student in White's first-grade class during the 2005-06 school year; plaintiff Jane Doe-7 was a student in White's second-grade class during the 2006-07 school year. Both plaintiffs were victims of sexual abuse by White during White's employment at Thomas Paine.
¶ 8 Both complaints allege that the McLean administrators, individually, and McLean, as respondeat superior, acted willfully and wantonly by providing false information on the employment verification form. The other counts based on different theories of law are not at issue in this appeal.
¶ 9 Defendants filed motions to dismiss plaintiffs' complaints pursuant to section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2010) (allowing combined motions to dismiss)). First, defendants contended, pursuant to section 2-615 (735 ILCS 5/2-615 (West 2010)), that plaintiffs' complaints should be dismissed because, among other reasons, the complaints failed to state a cause of action upon which relief could be granted. Specifically, defendants contended that plaintiffs' willful and wanton conduct claims failed to allege a viable legal duty on the part of defendants, and that plaintiffs' claims were precluded by the common law public duty rule.
¶ 10 Defendants also argued that plaintiffs' claims against the individual McLean administrators should be dismissed pursuant to section 2-619 (735 ILCS 5/2-619 (West 2010)) because those claims were barred by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2010)).*fn4
¶ 11 The trial court dismissed with prejudice all counts against the McLean defendants, finding that defendants owed no legal duty to plaintiffs. Even if a duty existed under the law, the court held that either the common law public duty rule or the Tort Immunity Act precluded any duty owed to plaintiffs. Plaintiffs' motions to reconsider were denied.*fn5
¶ 12 The appellate court reversed the trial court's judgment and remanded for further proceedings, finding that plaintiffs adequately alleged a duty on the part of defendants. 409 Ill. App. 3d 1087. The court held that defendants' act of "creating and sending" a letter of recommendation on behalf of White supported a duty based on the theory of either voluntary undertaking (Restatement (Second) of Torts § 324A (1965)), or negligent misrepresentation involving risk of physical harm (Restatement (Second) of Torts § 311 (1965)). Id. at 1097-99. The court further held that defendants owed a duty either to warn Urbana of White's conduct or to report White's conduct to the Department of Children and Family Services (DCFS). Id. Based on its findings, the appellate court reversed the trial court's dismissal of plaintiffs' actions.
¶ 13 This court allowed defendants' petitions for leave to appeal pursuant to Supreme Court Rule 315 (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)), and the appeals were consolidated.
¶ 15 The issue before us is whether the trial court properly dismissed plaintiffs' complaints based on its finding that defendants owed plaintiffs no duty. A motion to dismiss under section 2-615 of the Code challenges the legal sufficiency of a complaint based on defects apparent on its face. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). A motion to dismiss pursuant to section 2-619 admits the legal sufficiency of plaintiffs' complaint, but asserts affirmative matter which defeats the claim. Review under either section 2-615 or section 2-619 is de novo. King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 12 (2005).
¶ 16 Under section 2-615, the critical question is whether the allegations in the complaint, construed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003). In making this determination, all well-pleaded facts must be taken as true. King, 215 Ill. 2d at 11-12. A court should dismiss a complaint pursuant to section 2-615 only where no set of facts can be proved which would entitle the plaintiff to recovery. Marshall, 222 Ill. 2d at 429.
¶ 18 As noted above, the appellate court reversed the trial court's dismissal of plaintiffs' complaints, finding that plaintiffs stated a cause of action based on defendants' willful and wanton conduct and that defendants owed plaintiffs a duty. Therefore, we first turn to that issue.
¶ 19 In the only count before us, plaintiffs allege that defendants acted willfully and wantonly when they "passed" White to the Urbana school district by misrepresenting White's employment record on a verification form. There is no separate, independent tort of willful and wanton conduct. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 235 (2010) (citing Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274 (1994)). Rather, willful and wanton conduct is regarded as an aggravated form of negligence. Krywin, 238 Ill. 2d at 235 (citing Sparks v. Starks, 367 Ill. App. 3d 834, 837 (2006)). In order to recover damages based on willful and wanton conduct, a plaintiff must plead and prove the basic elements of a negligence claim--that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was a proximate cause of the plaintiff's injury. Krywin, 238 Ill. 2d at 225. In addition, a plaintiff must allege either a deliberate intention to harm or a conscious disregard for the plaintiff's welfare. Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28 (2004).
¶ 20 Thus, to determine whether dismissal was proper, we must determine whether plaintiffs alleged sufficient facts which, if proven, establish a duty of care owed to them by defendants. Whether a duty exists is a question of law for the court to decide. Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007). The standard of review on a question of law is de novo. Krywin, 238 Ill. 2d at 226.
¶ 21 It is axiomatic that " 'every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act, and such a duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons.' " Simpkins v. CSX Transportation, Inc., 2012 IL 110662,
¶ 19 (quoting Widlowski v. Durkee Foods, 138 Ill. 2d 369, 373 (1990) (collecting cases)). Thus, where a defendant's course of action creates a foreseeable risk of injury, the defendant has a duty to protect others from such injury. Id.
¶ 22 The "touchstone of this court's duty analysis is to ask whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff." Marshall, 222 Ill. 2d at 436 (citing Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186 (2002)). But the "relationship" between the plaintiff and defendant need not be a direct relationship between the parties. Rather, "relationship" is a shorthand description for the analysis of four factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing the burden on the defendant. Simpkins, 2012 IL 110662, ¶ 18; Marshall, 222 Ill. 2d at 436-37. Any analysis of the duty element turns on the policy considerations inherent in the above factors, and the weight accorded each of the factors depends on the circumstances of the particular case. Simpkins, 2012 IL 110662, ¶ 18.
¶ 23 At the outset, it is important to clarify exactly what circumstances alleged in the complaints form the basis for finding a duty owed to plaintiffs. The appellate court held that defendants' duty arose from the following circumstances: (1) failing to warn Urbana of White's conduct; (2) failing to report White's conduct to authorities; and (3) creating and tendering a false letter of recommendation for White. According to the appellate court, these actions or omissions created the opportunity for White to commit further abuse at Urbana, which was reasonably foreseeable by defendants. 409 Ill. App. 3d at 1099. We disagree.
¶ 24 None of the circumstances relied on by the appellate court can form the basis for a duty in this case. First, plaintiffs do not allege that defendants had an affirmative duty to warn Urbana of White's conduct. Nowhere in the complaints do plaintiffs allege that defendants had an affirmative duty either to protect them from the criminal acts of a third party or to warn Urbana about White's conduct during his prior employment with the McLean School District. Indeed, plaintiffs concede that "Good Samaritan" liability is not at issue in this case. In Illinois, an affirmative duty to aid or protect another against an unreasonable risk of physical harm arises only in the context of a legally recognized "special relationship." Simpkins, 2012 IL 110662, ¶ 20; Iseberg v. Gross, 227 Ill. 2d 78, 87-88 (2007). Plaintiffs have not alleged, nor can they allege, that any of the recognized special relationships apply to them.*fn6
¶ 25 Similarly, with regard to the appellate court's holding that defendants had a duty to report White's conduct to authorities, the common law does not recognize an affirmative duty to act for the protection of another in the absence of a special relationship between the parties. See Iseberg, 227 Ill. 2d at 87-88. As noted above, no special relationship exists here.*fn7
¶ 26 Finally, we reject the appellate court's finding that a duty to the plaintiffs arose from defendants' creation of a recommendation letter for White. Although the appellate court found that defendants voluntarily undertook to create and send a letter to Urbana endorsing White's ability to teach elementary school students, the complaints pled only that a letter of recommendation was created; they did not plead that a letter was sent to Urbana. If no recommendation letter was sent to, or received by, Urbana, the creation of that letter cannot form the basis for a duty on the part of defendants.
¶ 27 Nevertheless, we find that plaintiffs have alleged circumstances which do give rise to a duty owed by defendants in this case. These circumstances consist of defendants' act of misstating White's employment history on the employment verification form sent to Urbana. Plaintiffs allege that defendants created the risk of harm to them by falsely stating on an employment verification form that White had worked for the McLean school district during the entire 2004-05 school year. This apparently was not true. As alleged by plaintiffs, White was subject to disciplinary removal from his classroom twice during the school year, and his employment ended at some time prior to the end of the school year.
¶ 28 Defendants dispute that the above facts support a finding of a duty. They argue that any claim by plaintiffs based on a misrepresentation on the employment verification form is merely an attempt to "repackage" a nonviable claim for the tort of fraudulent misrepresentation or negligent misrepresentation, the elements of which plaintiffs have not properly alleged. The elements of a fraudulent misrepresentation claim are: (1) a false statement of material fact; (2) knowledge or belief of the falsity by the person making it; (3) intention to induce the other party to act; (4) action by the other party in reliance on the truth of the statements; and (5) damage to the other party resulting from such reliance. Board of Education of City of Chicago v. A, C & S, Inc., 131 Ill. 2d 428, 452 (1989). A claim for negligent misrepresentation has essentially the same elements as fraudulent misrepresentation, except that the defendant's mental state is different. Id. A plaintiff need only allege that the defendant was careless or negligent in ascertaining the truth of the statement, and that the defendant had a duty to convey accurate information to the plaintiff. Id. Defendants contend further that fraudulent or negligent misrepresentation, historically, has been treated as a purely economic tort which is available only for commercial or financial losses and not for personal injuries. See Doe v. Dilling, 228 Ill. 2d 324, 343-44 (2008).
¶ 29 As we pointed out in Dilling, however, "if the tort of fraudulent misrepresentation is not recognized for a certain fact pattern, this does not necessarily mean that a plaintiff is left without a remedy for his or her injuries, as other tort actions may be available." Id. at 344-45. See also Neurosurgery & Spine Surgery, S.C. v. Goldman, 339 Ill. App. 3d 177, 184-85 (2003) (misrepresentations, as descriptions of conduct, may give rise to a great number of causes of action other than fraudulent misrepresentation, including false imprisonment, defamation, malicious prosecution, interference with contractual relations, and intentional infliction of emotional distress); 3 Dan B. Dobbs, The Law of Torts § 663, at 641-43 (2001) (the terms "fraud," "deceit," and "misrepresentation" may be used, not as the name for a cause of action, but as a description of the facts used to establish legal liability for some other tort, such as negligence or battery). In the instant case, plaintiffs' claims are not based on the tort of fraudulent misrepresentation or negligent misrepresentation, but on willful and wanton conduct. Willful and wanton conduct requires plaintiffs to plead and prove the elements of negligence-duty, breach, proximate causation, and damages-as well as a deliberate intention to harm or a conscious disregard for plaintiffs' welfare. See Krywin, 238 Ill. 2d at 225; Doe v. Chicago Board of Education, 213 Ill. 2d at 28. Plaintiffs allege that defendants' misrepresentation itself is the conduct giving rise to a duty in a cause of action for willful and wanton conduct.
¶ 30 In finding a duty here, we begin with the well-settled proposition that every person owes to all other persons " 'a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.' " Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32 (1992) (quoting Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86 (1964)); see also Karas v. Strevell, 227 Ill. 2d 440, 451 (2008); Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 291 (2007). Whether defendants' misstatements on the verification form gave rise to a legally recognized duty to plaintiffs here depends upon the "relationship" between the parties, that is, the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants. See Simpkins, 2012 IL 110662, ¶ 18; Krywin, 238 Ill. 2d at 226.
¶ 31 In deciding reasonable foreseeability, we note that an injury is not reasonably foreseeable where it results from freakish, bizarre, or fantastic circumstances. Washington v. City of Chicago, 188 Ill. 2d 235, 240 (1999). Here, we cannot say, as a matter of law, that the injuries in this case were so bizarre or fantastic as to be unforeseeable by a reasonable person. By falsely stating that White taught a full school year, when in fact White's employment ended prior to the end of the school year, defendants implied that the severance of White's employment was routine. At the time that Urbana hired White, it had no reason to believe that White's non-renewal by McLean was the result of his misconduct. According to the allegations in plaintiffs' complaints, the McLean administrators were well aware of multiple instances of White's sexual grooming and abuse of his students. In light of defendants' awareness of White's conduct and their false statements on the employment form, we cannot say, as a matter of law, that the injuries suffered by plaintiffs were unforeseeable.
¶ 32 Other courts, when faced with similar facts, have held that the plaintiffs' injuries were reasonably foreseeable, supporting a duty on the part of the defendants. See, e.g., Randi W. v. Muroc Joint Unified School District, 929 P.2d 582, 584 (Cal. 1997) (plaintiff's assault by school administrator was reasonably foreseeable by school districts who provided favorable recommendations for the administrator, omitting past instances of sexual misconduct involving students); Davis v. Board of County Commissioners, 987 P.2d 1172, 1179-80 (N.M. Ct. App. 1999) (former employer of a detention sergeant hired by a hospital in reliance on an unqualifiedly favorable employment reference has a duty to exercise reasonable care so as not to misrepresent the employee's record when, to do so, would create a foreseeable risk of physical injury to third parties); Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 290-91 (Tex. 1996) (local council who recommended scoutmaster, in light of information council had received about scoutmaster's alleged prior conduct with other boys, should have foreseen that it was creating an unreasonable risk of harm to scouts in another troop).
¶ 33 The second factor in our duty analysis is the likelihood of the injury. We find nothing in the alleged facts that would suggest that the injuries suffered by plaintiffs are too remote or unlikely as a matter of law. A truthful disclosure on the employment verification form could well have been a "red flag" to Urbana to investigate the circumstances of White's departure from McLean. Had Urbana been made aware of the discrepancy in White's prior employment with McLean, it is certainly possible that it would have investigated further and either not hired White or fired White before he abused the plaintiffs in this case. Furthermore, where a teacher who is known to have abused children is hired in a teaching position at another school, the likelihood that students at the next school will be abused by that teacher is within the realm of reasonable probability. See People v. Rinehart, 2012 IL 111719, ¶ 29 (noting risk of recidivism associated with sex offenders). Thus, we cannot say, as a matter of law, that plaintiffs' injuries were so remote or unlikely as to preclude a duty owed by the defendants.
¶ 34 The magnitude of defendants' burden of guarding against such injury, the third factor, would not be great. If defendants undertake to fill out employment forms, they must do so with reasonable care. It is not an undue burden to require an employer to accurately complete an employment form. Imposing this obligation is not so unreasonable and impractical as to negate the imposition of a legal duty. See Krywin, 238 Ill. 2d at 232-33. Finally, looking at the fourth factor, it is difficult to see how any adverse consequences could result from imposing such a slight burden on a school district.
¶ 35 Viewing all four factors as a whole, we conclude that plaintiffs have sufficiently alleged facts which support the finding that defendants owed plaintiffs a duty of care. Having undertaken the affirmative act of filling out White's employment verification form, defendants had a duty to use reasonable care in ensuring that the information was accurate.
¶ 36 Our holding is further bolstered by the public policy in Illinois favoring the protection of children:
"[T]his state has traditionally exhibited an 'acute interest' in the well-being of minors. Indeed, 'the welfare and protection of minors has always been considered one of the State's most fundamental interests.' American Federation of State, County & Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299, 311 (1996). Long ago, this court acknowledged the paramount importance of ensuring the welfare of children, and others, who are least able to protect themselves:
'It is the unquestioned right and imperative duty of every enlightened government, in its character of parens patriae, to protect and provide for the comfort and well-being of such of its citizens as, by reason of infancy, defective understanding, or other misfortune or infirmity, are unable to take care of themselves. The performance of this duty is justly regarded as one of the most important of governmental functions, and all constitutional limitations must be so understood and construed as not to interfere with its proper and legitimate exercise.' County of McLean v. Humphreys, 104 Ill. 378, 383 (1882)." People v. Huddleston, 212 Ill. 2d 107, 133 (2004).
¶ 37 "This public policy has led our courts to recognize that even parents' rights are secondary to the State's strong interest in protecting children when the potential for abuse or neglect exists." American Federation of State, County & Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299, 312 (1996). Moreover, there is a specific public policy in this State, as evidenced by various statutes, which favors, in particular, the protection of children from sex offenders. See Chicago Transit Authority v. Amalgamated Transit Union, Local 241, 399 Ill. App. 3d 689, 697-98 (2010) (collecting citations). In Huddleston, 212 Ill. 2d at 137, this court noted, "Suffice it to say that the incidence of child molestation is a matter of grave concern in this state and others, as is the rate of recidivism among the offenders." See also Chicago Transit Authority, 399 Ill. App. 3d at 698 (citing McKune v. Lile, 536 U.S. 24, 33-34 (2002) (describing the risk of recidivism posed by sex offenders as "frightening and high")).
¶ 38 These public policy concerns for the protection of children, particularly from the dangers of sex offenders, weigh in favor of finding a duty under the facts of this case. Accordingly, we affirm the appellate court's judgment that defendants owed plaintiffs a duty. However, we do so on different grounds. We reverse the ...