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Albert v. The Bd. of Education

Court of Appeals of Illinois, First District, Third Division

November 26, 2014

AN-JANETTE ALBERT, as Special Administrator of the Estate of DERRION ALBERT, Deceased, Plaintiff-Appellant,

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Appeal from the Circuit Court of Cook County. No. 09 L 12526. The Honorable Kathy M. Flanagan, Judge Presiding.


The trial court properly entered summary judgment for the Board of Education of the City of Chicago in plaintiff's wrongful death and survival action for the death of her son during a fight that occurred while her son was on his way home from school, notwithstanding plaintiff's contentions that defendant knew a fight had occurred earlier in the day on school property, that the fight would continue later and that defendant failed to adequately protect her son when the fight broke out on his way home, since defendant's failure to provide police protection and services was immunized pursuant to section 4-102 of the Tort Immunity Act, especially when the fight took place after school hours, off the school grounds, and when no activity supervised by the school was taking place; furthermore, defendant had no duty to decedent under the common-law public duty rule and defendant was immune from liability for its discretionary disciplinary decisions under section 2-201 of the Act.

FOR PLAINTIFF-APPELLANT: Larry R. Rogers, Power Rogers & Smith, P.C., Chicago, IL.

FOR DEFENDANT-APPELLEE: William A. Morgan, Deputy General Counsel, James L. Bebley, General Counsel, William A. Morgan, Deputy General Counsel, Chicago, IL.

PRESIDING JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justice Mason specially concurred, with opinion, joined by Justice Hyman.


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[¶1] Plaintiff filed a complaint for wrongful death and survival against defendant Board of Education of the City of Chicago (Board) following the death of her son, Derrion. Plaintiff alleged that the Board should have done something to prevent a fight after school and off school grounds and should have protected Derrion because the Board (through its employees) had notice that a fight had occurred on school property earlier in the day. The fight involved other students; Derrion was not involved in either fight. Plaintiff alleged that the Board knew that the fight between the other students would continue later and that the Board did not adequately protect Derrion later that day when the second fight broke out, not on school property, but on the route he took for his commute home. Derrion was injured in the second fight and subsequently died. Plaintiff argues that though the Board suspended a student involved in the earlier fight at school, the Board (through its employees) should have disciplined the students involved in the earlier fight in school in a different manner, such as after-school detention, and also that the Board should have protected Derrion by placing security personnel on the route for his commute home. Plaintiff repeatedly filed amended complaints alleging that the Board owed a special duty to Derrion, which the circuit court dismissed, allowing plaintiff to file only claims for wrongful death and survival based on willful and wanton conduct. The circuit court granted summary judgment in favor of the Board, ruling that plaintiff failed to allege any duty, and that section 4-102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act, which has no exception for willful and wanton conduct and provides blanket immunity for failure to provide police protection or service (745 ILCS 10/4-102 (West 2008)), applied and that section 2-201 (745 ILCS 10/2-201 (West 2008)), which provides immunity for discretionary decisions by a public entity's employees, also applied to immunize the Board.

[¶2] Plaintiff argues that the circuit court erred because either section 2-202 (745 ILCS 10/2-202 (West 2008)) (willful and wanton conduct in enforcing or executing a law) or section 3-108 (745 ILCS 10/3-108 (West 2008)) (willful and wanton conduct in failure to supervise) applies. We hold neither provision applies in this case. In so holding, we reject the Board's contention that section 2-202 is inapplicable to the Board as a party because it applies only to public employees and not public entities. We reaffirm that section 2-109 provides derivative immunity or liability to public entities for injuries alleged to have been caused by the entity's employees. Rather, section 2-202 does not apply to the facts of this case on the merits, because the student code regarding discipline adopted by the Board is not a " law" within the purview of section 2-202 and because the Board was not executing or enforcing anything at the time of the incident.

[¶3] We also hold that section 3-108 does not apply because there was no school activity being supervised at the time of the incident.

[¶4] We hold the Board had no duty to Derrion at the time of the incident alleged

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in this case under section 4-102, which provides complete immunity and codified the public duty rule that public entities are not liable for failure to provide police services.

[¶5] We further hold that the Board is immunized for any alleged discretionary disciplinary decisions made by its employees under section 2-201, and that the Board is afforded this immunity derivatively through section 2-109 of the Tort Immunity Act.


[¶7] Plaintiff's fourth amended complaint at law alleged claims against the Board in two counts under the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2008)) and the survival provision of the Probate Act of 1975 (Survival Act) (755 ILCS 5/27-6 (West 2008)), based on the Board's alleged failure to adequately execute and enforce the student code of conduct and failure to protect plaintiff's decedent, her son Derrion. Plaintiff's fourth amended complaint also contained some allegations seemingly alleging a special duty on the part of the Board to protect Derrion. The following facts are from the pleadings and depositions. Prior to the date of the incident alleged, some students from the Altgeld Garden neighborhood, including Derrion, transferred to Fenger High School. In July 2000, as part of the conversion of Carver High School to Carver Military Academy, the Board changed the attendance-area boundaries for Fenger High School to include portions of Chicago in which the Altgeld Gardens housing project was located. The attendance-area boundaries define the geographic areas from which a school is required to admit resident students. The boundary change did not result in mandatory transfer of any students but, rather, entitled students within the new boundaries to enroll at Fenger High School.

[¶8] Violence and fights occurred between students attending Fenger High School who were from the school neighborhood and students from the Altgeld Gardens neighborhood. Principal Elizabeth Dozier began her tenure at Fenger High School in September 2009 and learned of the rivalry between the " Ville gang" from the Fenger High School area and the " Gardens gang" from the Altgeld Gardens neighborhood. On several occasions she voiced concerns about that gang rivalry to the local police commander, Michael Kuemmeth, Chicago Police Chief Jody Weis, the Board's head of safety and security, Michael Shields, and her area officer, Donald Fraynd.

[¶9] The morning of September 24, 2009, there was a shooting near Fenger High School between students of these rival neighborhoods. That same morning, there was also a fight at Fenger High School. Principal Dozier knew of the fight but, at her deposition, was not asked about whether she also knew of the shooting. No weapons were used in the school fight. Principal Dozier testified she heard someone " screaming *** something with a particular gang--I can't recall which gang it was--a lot of cussing and, you know, threats of bodily harm." Principal Dozier testified that the threats indicated to her that the " fight wasn't over, that it would continue at some point in the future."

[¶10] The fight was stopped by school security guards and a misconduct report was prepared by Dean Robert Spicer. The " Student Code of Conduct" was adopted by the Chicago board of education effective September 17, 2009, a week before the incident in this case. The deans at Fenger High School are responsible for student discipline and have the discretion to determine the appropriate consequences

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for violations of the Student Code of Conduct. The consequences for each kind of infraction depend, in part, on the age and grade level of the student and the severity of the conduct. The Board's Student Code of Conduct classifies a fight between two students, where no one is injured, as a Group 3 infraction. Fights involving more than two students, fights where someone is injured, incidents of battery without injury, and " acts of misconduct [that] include those student behaviors that very seriously disrupt the orderly educational process of the Chicago Public Schools" are classified as Group 4 infractions. The possible consequences for a Group 4 infraction include: disciplinary conferences involving the teacher, the student, a resource person and an administrator; in-school suspensions of 1 to 5 days; detentions; out-of-school suspensions of up to 10 days; disciplinary reassignment to another school; suspension of Chicago Public School Network privileges for up to 1 year; or balanced and restorative justice strategies.

[¶11] Dean Spicer determined that the student who instigated the fight, Vashion Bullock, committed a Group 4 infraction and violated section 4-5 of the Student Code of Conduct, which prohibits " [b]attery or aiding or abetting in the commission of a battery which does not result in a physical injury" and is marked with two asterisks. The Student Code of Conduct states: " Inappropriate behaviors marked with two asterisks indicate that the school may use its discretion in notifying the police about the incident. Police notification is not required for these Inappropriate Behaviors." Dean Spicer suspended Bullock for four days and sent him home with his mother that day at 2 p.m. Dean Spicer determined this fight did not warrant calling the police. An exhibit to Principal Dozier's deposition indicates that another student, Fred Couch, was also disciplined for violating section 5-1 of the Student Code of Conduct.

[¶12] Derrion was not a member of either group or gang that had been involved in the fight earlier that morning and was not involved in either the shooting off school grounds or the fight in school. That same afternoon on September 24, 2009, Derrion left Fenger High School and walked toward the Chicago Transit Authority (CTA) bus stop at 111th Street near Princeton Avenue to travel home but was unable to reach the bus stop because a fight broke out between teenagers in front of the Agape Community Center on 111th Street. Bullock was one of the students involved in this fight. Plaintiff's complaint does not allege that Couch was involved in the fight. During this fight, Derrion sustained significant physical injuries and subsequently died. Derrion was 16 years old.

[¶13] After Derrion's death, the Board adopted a system-wide program called " Culture of Calm," which included a service called " Safe Passage." Safe Passage utilizes the services of community members who are trained and stationed along the major public sidewalks and transportation routes of high school students. The community members participating in Safe Passage wear yellow vests and use walkie-talkies and phones to report any incidents that arise when students are going to or from their schools. They are not, however, permitted to intervene in any incidents they observe.

[¶14] On October 22, 2009, plaintiff initiated this action by filing a civil action cover sheet and a verified petition for protective order and discovery against the City of Chicago, not yet alleging any particular claims but instead seeking records relating to the fight in front of the Agape Community Center from the Chicago police department, the Chicago fire department,

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and the city's office of emergency management and communications.

[¶15] After receiving police and 911 records from the city, plaintiff filed an eight-count first amended complaint on July 15, 2010, against the city and the Board. Plaintiff brought four counts each against both the city and the Board for wrongful death (740 ILCS 180/1 et seq. (West 2008)) and under the Survival Act (755 ILCS 5/27-6 (West 2008)), " Willful and Wanton--Wrongful Death," and " Willful and Wanton--Survival Act." In her first amended complaint, plaintiff alleged that the Board owed Derrion a special duty as an exception to the public duty rule and was willful and wanton in its conduct.

[¶16] The city filed a motion to dismiss the first amended complaint on August 5, 2010, which was granted in an order entered on October 7, 2010.

[¶17] The Board filed a combined motion under section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2010)), to dismiss the first amended complaint on October 1, 2010, arguing for dismissal under both section 2-619 (735 ILCS 5/2-619 (West 2010)) and section 2-615 (735 ILCS 5/2-615 (West 2010)). The court granted the Board's motion to dismiss the first amended complaint in a memorandum opinion and order entered December 13, 2010. The court addressed only the section 2-615 portion of the Board's motion and ruled that plaintiff failed to state a cause of action because under the public duty rule the Board did not owe plaintiff any duty and plaintiff failed to plead sufficient facts to establish the special duty exception to the public duty rule. The court also ruled that the amended complaint failed to state a cause of action against the Board because proximate cause was not properly pled and dismissed all counts against the Board. The court allowed plaintiff an opportunity to replead.

[¶18] Plaintiff filed a second amended complaint on January 7, 2011, against only the Board, alleging four counts for wrongful death (" Willful and Wanton--Wrongful Death" ) and under the Survival Act (" Willful and Wanton--Survival Act" ), specifically alleging the Board owed Derrion a special duty due to its action of transferring students to Fenger High School and that the Board owed a special duty to Derrion to detain students after the fight, stagger the dismissal times of the students, provide security personnel on the route from Fenger High School to the bus stop where Derrion was walking, provide safe passage for Derrion in his commute from Fenger High School, and provide transportation to Derrion from Fenger High School to his home. The Board filed a section 2-615 (735 ILCS 5/2-615 (West 2010)) motion to dismiss on January 24, 2011. Plaintiff maintained that she sufficiently pled the special duty doctrine and proximate cause. The court dismissed this complaint on April 11, 2012 in a written memorandum opinion and order, ruling that plaintiff again failed to state a cause of action ...

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