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Mulvey v. Carl Sandburg High School

Court of Appeals of Illinois, First District, Sixth Division

October 28, 2016

JOSEPH MULVEY and ELLEN HOGAN-MULVEY, Parents and Next Friends of Kathleen Mulvey, a minor, andfor themselves personally, and MEGHAN MULVEY, Plaintiffs-Appellants,
CARL SANDBURG HIGH SCHOOL, CONSOLIDATED SCHOOL DISTRICT 230, DR. JAMES GAY, individually and as Superintendent of District 230, BRENDA REYNOLDS, individually and assistant superintendent, CHRIS HELLRUNG, individually, BRUCE SCHEIDEGGER, individually, JEAN PACZESNY, individually, and TODD HELLRUNG, individually, Defendants-Appellees.

         Appeal from the Circuit Court of Cook County. No. 12 L 2126 Honorable John P. Callahan, Jr., Judge Presiding.

          Presiding Justice Hoffman and Justice Rochford concurred in the judgment and opinion.



         ¶ 1 Joseph Mulvey and Ellen Hogan-Mulvey are the parents of Kathleen Mulvey. They filed this lawsuit on behalf of themselves and Kathleen for injuries Kathleen allegedly sustained as the result of school bullying. Kathleen's older sister, Meghan, brought similar claims. These individuals sued Carl Sandburg High School (Sandburg), Consolidated High School District 230 (District 230), and various district officials and coaches. The circuit court ruled in favor of the school district defendants on all claims. We affirm.

         ¶ 2 Illinois Bullying Prevention Statute

         ¶ 3 The Mulveys' claims have their genesis in a 2006 statute which provided that each Illinois school district must "make suitable provisions for instruction in bullying prevention in all grades and include such instruction in the courses of study regularly taught therein." Pub. Act 94-937, §5 (eff. June 26, 2006) (adding 105 ILCS 5/27-23.7). The legislature later amended the statute to mandate that each Illinois school district create and maintain a policy on bullying to be filed with the State Board of Education (State Board) and "communicate its policy on bullying to its students and their parent or guardian on an annual basis." Pub. Act 95-349, §5 (eff. Aug. 23, 2007) (amending 105 ILCS 5/27-23.7). School districts are also required to update the policy every two years and file the update with the State Board. 105 ILCS 5/27-23.7(d) (West 2012).

         ¶ 4 The statute generally defines "bullying" as "any severe or pervasive physical or verbal act or conduct, including communications made in writing or electronically, directed toward a student or students that has or can be reasonably predicted to have the effect of" placing a student in reasonable fear of harm, having a detrimental effect on the student's physical or mental health, or substantially interfering with a student's academic performance or the student's ability to participate in school activities. 105 ILCS 5/27-23.7(b) (West 2012). It also provides that "[n]o student shall be subjected to bullying" while in school, on school property, or during school-related activities. 105 ILCS 5/27-23.7(a) (West 2012).

         ¶ 5 District 230 Parent-Student Handbooks

         ¶ 6 The student handbook distributed to students and parents for the 2010-2011 school year included explicit policies regarding the prevention of bullying and disciplinary action which school officials may administer when violations occur. The handbook defined bullying as "conduct and behavior toward other students that, to a marked degree, appear to terrorize, intimidate, or start fights with other students. It includes, but is not limited to, engaging in any form or type of aggressive behavior that does physical or psychological harm to someone else and/or using students to engage in such conduct." Policy 7:180 in the student handbook specifically stated that "[p]reventing students from engaging in these disruptive behaviors is an important District goal." The policy required the superintendent or his designee to develop and maintain a program that "fully implements and enforces" the policy, a function including, among other things: conducting prompt and thorough investigations of alleged incidents of bullying, intimidation, or harassing behavior; providing students who violate the policies with appropriate consequences and remedial action; and protecting students against retaliation for reporting such conduct. It also required bullying prevention instruction in all grades and communication of the policy to all teachers and certified employees.

         ¶ 7 The policy listed progressive disciplinary actions to be implemented and administered by school officials, as follows: (1) "Dean's referral"; (2) "Notification of parents"; (3) "Completion of form 7:190 E1"; (4) "Out of School Suspension for 1 to 10 days"; (5) "Possible recommendation for expulsion"; and (6) "Possible notification of police." In addition, the student handbook included a point system for progressive discipline in which points were assessed against students based upon the consequences received for a violation of the discipline code. For example, a student who accumulated 30 points would be suspended from school for a period of 10 days.

         ¶ 8 The student handbook also included a cocurricular code of conduct which provided that "[a] student may be excluded from activities or competition while the school is conducting an investigation regarding that student's conduct. A student found to be in violation of the Code of Conduct while in school, on school property, or at a school-sponsored event, will also be subject to the Consolidated High School District 230 discipline guidelines and consequences."

         ¶ 9 Students participating in school athletics and their parents also received an athletic handbook. The athletic handbook stated that coaches had a duty to supervise and provide a safe environment, and required them to "control reckless player behaviors. (before and after games, practices, locker room, and bus supervision)." (Emphasis in original.)

         ¶ 10 Plaintiffs' Amended Complaint

         ¶ 11 The plaintiffs filed an amended complaint containing three counts. Counts I and III were breach of contract claims based on District 230's alleged failure to enforce the anti-bullying policies in the handbooks. In count I, Meghan and Kathleen set forth a host of allegations of bullying conduct they suffered at the hands of their basketball teammates. They claimed that they were ignored, harassed, humiliated, physically assaulted, injured, and intimidated by their teammates during their high school tenure. They also alleged that certain teammates teased them on specific occasions, both in person and on social media.

         ¶ 12 The sisters alleged that they performed all the duties and obligations required of them by the student and athletic handbooks, but that the defendants failed to understand and rectify the conditions that fostered bullying, intimidation, and harassment. They further alleged that they suffered damages due to the defendants' breaches of contract, including physical injury, emotional pain and distress, depression, post traumatic stress disorder, surgery, and having to change schools prior to graduation. Count III realleged the same claims as Count I, but on behalf of the plaintiff-parents.

         ¶ 13 Count II of the amended complaint alleged willful and wanton conduct on behalf of Meghan and Kathleen against all defendants. This count claimed that beginning as early as November 2008 and continuing thereafter, defendants knew or acted with utter indifference and reckless disregard to the bullying conduct. They claimed that but for the willful and wanton failure of defendants to address the bullying conduct as required by common law, Illinois statutes, and District 230's policies, they would have been protected from the known danger of bullying and would not have suffered the injuries inflicted on them.

         ¶ 14 Defendants' Motion to Dismiss the Amended Complaint

         ¶ 15 Defendants filed a combined motion to dismiss the amended complaint pursuant to section 2-619.1 of the Illinois Code of Civil Procedure (Code), 735 ILCS 5/2-619.1 (West 2012)). They asked the court to dismiss counts I and III pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2012)) contending that, as a matter of law, public school student handbooks do not possess the elements of a legal contract: offer, acceptance, and consideration. They also moved to dismiss count II pursuant to section 2-615 for failure to state a valid cause of action for willful and wanton conduct because it did not allege a known threat of serious physical harm and because plaintiffs' allegations eliminated any claim of deliberate indifference to any alleged threat. Finally, defendants moved to dismiss count II on two bases. They argued under section 2-619(a)(5) (735 ILCS 5/2-619(a)(5) (West 2012)) that Meghan's claims were time-barred, and under section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West ...

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