Appeal from the Circuit Court of Lake County. No. 12-L-272. Honorable Jorge L. Ortiz, Judge, Presiding.
The trial court properly dismissed plaintiff's complaint alleging that he was subjected to bullying and that defendant school district caused plaintiff's injuries by failing to provide a safe environment on the ground that defendant was immune from liability under sections 2-201 and 3-108(b) of the Tort Immunity Act, notwithstanding plaintiff's contention that carrying out the district's anti-bullying policy was a ministerial act that was not immunized, since the policy did not mandate a particular response to a specific set of circumstances; rather, the policy gave the district the discretion to determine whether bullying occurred, what the consequences would be, and what remedial action would be appropriate.
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Birkett and Spence concurred in the judgment and opinion.
[¶1] On April 10, 2012, plaintiff, Carlos Malinksi, filed a complaint against defendant, Grayslake Community High School District 127. Plaintiff, a student at Grayslake North High School, alleged that other students subjected him to bullying and that defendant failed to provide a safe environment, proximately causing plaintiff's injuries. The trial court granted defendant's motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619.1 (West 2012)), and plaintiff appeals. We affirm.
[¶2] The pleadings reflect that plaintiff was a student at Grayslake North High School. During school hours and on school property, other students subjected him to verbal and physical abuse including being punched and pushed. Plaintiff was attacked on November 16, 2009, and plaintiff had previously informed school officials " on numerous occasions" about being bullied by other students. Specifically, " [t]hroughout 2008 and 2009," plaintiff had several email exchanges and meetings with Dean Athena Toliopoulos, warning her that he was in danger due to bullying and that he feared that the violence against him would escalate if the problem was not addressed. Plaintiff also had " continuous contact" with Joseph Volante, a school counselor. Plaintiff told Volante that other students were bullying him on school grounds and that the physical abuse would not stop unless " action was taken." On
November 6, 2009, plaintiff emailed Volante, advising him that the bullying was getting worse and that he wanted to commit suicide. On November 12, 2009, plaintiff met with school administrators and told them that other students were subjecting him to bullying.
[¶3] Plaintiff's complaint alleged that defendant had a duty to provide a safe environment and that defendant failed to do so by " [w]illfully, wantonly, and with reckless disregard for [plaintiff's safety]" ignoring plaintiff's warnings of bullying by other students and " allow[ing] [p]laintiff to be beaten outside of his classroom." Plaintiff alleged that, as a result of defendant's reckless disregard for his safety, plaintiff suffered injuries " both in mind and body" and will have to pay " large sums of money" for medical care.
[¶4] On April 11, 2013, defendant filed a motion to dismiss plaintiff's second amended complaint pursuant to section 2-619.1 of the Code. In relevant part, defendant argued that it was entitled to immunity under sections 2-201 and 3-108(b) of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/2-201, 3-108(b) (West 2012)). Defendant argued that section 3-108(b) immunized its alleged failure to properly supervise plaintiff's interactions with students. Defendant also argued that it had immunity under section 2-201 because " dealing with student bullying [was] exactly the type of discretionary decision for which [s]ection 2-201 of the Tort Immunity Act provides absolute immunity." On June 5, 2013, the trial court granted defendant's motion to dismiss pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2012)). Plaintiff timely appealed.
[¶5] Plaintiff's only contention is that the trial court erred in granting defendant's motion to dismiss. Plaintiff argues that section 2-201 of the Tort Immunity Act is inapplicable because, although defendant exercised its discretion in adopting an anti-bullying policy, carrying out that policy was a ministerial act that is not immunized. Plaintiff further argues that the trial court erred because defendant failed to attach supporting evidence to prove its affirmative defense.
[¶6] Section 2-619.1 of the Code provides that motions with respect to pleadings pursuant to sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2012)) may be filed together as a single motion. 735 ILCS 5/2-619.1 (West 2012). A motion to dismiss pursuant to section 2-615 of the Code tests the legal sufficiency of the complaint, whereas a motion to dismiss under section 2-619 admits the legal sufficiency of the complaint but asserts an affirmative defense that defeats the claim. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.2d 558, 578-79, 852 N.E.2d 825, 304 Ill.Dec. 369 (2006). In considering a combined motion to dismiss pursuant to section 2-619.1, we accept all well-pleaded facts in the complaint as true, drawing all reasonable inferences from those facts in favor of the nonmoving party. Morris v. Harvey Cycle & Camper, Inc., 392 Ill.App.3d 399, 402, 911 N.E.2d 1049, 331 Ill.Dec. 819 (2009). When reviewing a decision to grant a motion pursuant to section 2-615, our inquiry is whether the allegations of the complaint, construed in the light most favorable to the nonmoving party, are sufficient to establish a cause of action upon which relief may be granted. Weidner v. Karlin, 402 Ill.App.3d 1084, 1086, 932 N.E.2d ...