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Reyes v. The Board of Education of City of Chicago

Court of Appeals of Illinois, First District, Sixth Division

June 28, 2019

FEDERICO REYES and ROSA REYES, Individually, and as Plenary Guardians of S.R., a Legally Disabled Adult, Plaintiffs-Appellants,
v.
THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, a/k/a The Chicago Public Schools; LISA RAGO, an Individual; LUBIRTHA SHARP, an Individual; LAIDLAW TRANSIT, INC., a Delaware Corporation; LAIDLAW INTERNATIONAL INC., a Delaware Corporation; VICTORIA LYNN, an Individual; and TRANSPAR TRANSPORTATION MANAGEMENT SERVICES, LLC, Defendants The Board of Education of the City of Chicago, Lisa Rago, and Lubirtha Sharp, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County. No. 16 L 12555, Honorable Kathy Flanagan, Judge Presiding.

          CONNORS JUSTICE delivered the judgment of the court, with opinion. Justices Cunningham and Harris concurred in the judgment and opinion.

          OPINION

          CONNORS JUSTICE.

         ¶ 1 Plaintiffs, Federico Reyes and Rosa Reyes, the parents and plenary guardians of S.R., appeal the circuit court's dismissal of their second amended complaint under section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2014)). Defendants, the Board of Education of the City of Chicago (Board), also known as Chicago Public Schools (CPS), as well as Lisa Rago and Lubirtha Sharp, had asserted that plaintiffs' claims were barred by certain sections of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West 2014)). On appeal, plaintiffs contend that the sections of the Act raised by defendants do not apply to plaintiffs' claims. Finding that the Act immunizes defendants for only some of plaintiffs' claims, we affirm in part, reverse in part, and remand for further proceedings.

         ¶ 2 I. BACKGROUND

         ¶ 3 The record reveals that A.V., a minor male student, sexually assaulted S.R., a disabled female student, on a special needs school bus on May 5, 2005. At the time, Sharp was the bus aide and Rago was S.R.'s teacher at the John Coonley School. Plaintiffs filed a lawsuit against defendants in 2009, but the matter was voluntarily dismissed on January 5, 2016. Plaintiffs re-filed the action on December 23, 2016, and filed a first amended complaint on May 11, 2017. Defendants moved to dismiss three counts of the first amended complaint under section 2-619(a)(9) of the Code.[1] In part, defendants contended that, under sections 2-103 and 2-205 of the Act (745 ILCS 10/2-103, 2-205 (West 2014)), they were immune from plaintiffs' claims that they failed to follow various laws and policies. Defendants further asserted that they were immune under section 4-102 of the Act (745 ILCS 10/4-102 (West 2014)) for any alleged failure to protect S.R. from sexual assault. Defendants also maintained that, under section 2-201 of the Act (745 ILCS 10/2-201 (West 2014)), they were broadly immunized for their policy decisions.

         ¶ 4 After plaintiffs filed a response, the court granted defendants' motion to dismiss without prejudice. In a written order, the court stated that to the extent that plaintiffs' claims "[were] based on the failure to follow, enforce, or enact any laws, policies or procedures," defendants were immune from liability under sections 2-103 and 2-205 of the Act. The court also characterized plaintiffs' claims as a failure to prevent and/or stop the alleged sexual abuse, which was in effect an allegation that defendants failed to provide police protection services and prevent a crime. Thus, section 4-102 of the Act immunized defendants as well. The court further found that plaintiffs' allegations with regard to defendants' decisions about student transportation, placement, and discipline all involved both the determination of policy and the exercise of discretion, which made defendants immune under section 2-201 of the Act. Plaintiffs were granted one opportunity to amend the pleading to allege claims outside the governing immunities.

         ¶ 5 On December 20, 2017, plaintiffs filed their second amended complaint, which is the complaint at issue in this appeal. Plaintiffs alleged in part as follows. Rago, the teacher for the special education/developmentally disabled class at S.R.'s school, and Sharp, the bus aide, both had the duty to supervise and protect the physical safety of students at Coonley School at all times. The Board was responsible for providing safe and effective bus transportation for qualified students, including those with special needs.

         ¶ 6 Plaintiffs described policies that were in place when S.R. was sexually assaulted. Under the Board's sibling transportation policy, a nonspecial needs student who was the sibling of a special needs student could be eligible to ride the special needs bus only upon written application and approval and under two conditions: (1) the Bureau of Student Transportation received and approved a written request for the nonspecial needs sibling to ride the special needs bus, and (2) the nonspecial needs sibling was allowed to ride the special needs bus only so long as the special needs sibling was a student at the school and continued to ride the special needs bus. According to the Coonley School principal, general education students who would be dropped off at the same address as a special needs student could ride the bus as long as the special needs student's parents filled out a form. On information and belief, the Board developed the sibling transportation policy, and only the chairman of the Board could change the policy about who could ride the special needs bus.

         ¶ 7 Plaintiffs also stated that the "Guidelines for Principals Served by CWAs/Bus Aides" required school bus aides to report any behavioral problems to the principal or his designee and to "insist that children wear a seat belt at all times when the bus is in motion." Also, CPS described the essential functions of bus aides as including fastening seat belts around students and referring misbehaving students to the school principal.

         ¶ 8 Further, plaintiffs excerpted the CPS sexual harassment policy, which defined sexual harassment and outlined the procedure for addressing complaints. The sexual harassment policy stated that any person, such as a teacher, who receives a complaint "must refer it in writing, using the Sexual Harassment Information Form, to the Sexual Harassment Officer or designee no later than the end of the third business day following receipt of the complaint." The policy also provided that "[f]ailure to timely refer such complaints can be the basis for disciplinary action." Sworn policy statements, including one signed by Rago, required employees to sign off on the following: "I am required to report or cause a report to be made to the child abuse Hotline number whenever I have reasonable cause to believe a child known to me in my professional or official capacity may be abused or neglected."

         ¶ 9 Plaintiffs averred that A.V., who was not a student with physical or developmental disabilities and committed the assault, rode the special needs bus with his brother, allegedly under the sibling transportation policy. However, defendants did not receive, approve, or possess a written request from A.V.'s parents requesting that A.V. ride the bus with his brother, and the Board did not approve or issue an authorization for A.V. to ride the bus or create a route sheet granting A.V. permission to ride the bus with his brother. A.V. was not listed on the bus route roster checked by Sharp that would have allowed him to ride the bus, and Sharp never reviewed an annual parent authorization form for A.V. Further, A.V.'s brother left the Coonley School and stopped riding the bus no later than November 7, 2004, which ended any eligibility A.V. had to ride the bus. On May 5, 2005, the date of the final assault, A.V. should not have been on the bus, and neither Sharp nor the principal had the discretion to continue to allow A.V. to ride the bus. Moreover, Sharp and the principal directly violated CPS policy by allowing A.V. to keep riding the bus for months after his brother was taken off the route, when a parent should have been notified within a week.

         ¶ 10 Plaintiffs further alleged that Sharp failed to keep A.V. seat-belted in his assigned seat on the special needs bus and allowed him to roam around the bus at will. Numerous times, Sharp slept on the bus while functioning as a bus aide. Another student observed Sharp asleep on the bus, falling off her seat, and with her eyes closed on multiple occasions. This student would wake up Sharp when Sharp had to help a student off the bus and observe Sharp fall asleep until the next location. S.R. observed that Sharp was asleep when A.V. touched S.R.'s buttocks and put a pencil in her vagina at least once before May 5, 2005. Sharp advised S.R. that "you don't touch that part," indicating her private areas, and was required to report the behavior problems caused by A.V. S.R. informed her father that Sharp was sleeping on the occasions she was abused. S.R.'s father was informed by a second bus driver that Sharp slept on his bus as well.

         ¶ 11 Plaintiffs further alleged the details of incidents that happened before May 5, 2005. Two or three months before that date, S.R. came home from school with her hair and clothes disheveled and complained to her parents that a boy named A.V. or Alejandro was pulling her hair and grabbing her breasts and buttocks on the bus. Shortly afterwards, S.R.'s parents met with Rago twice, stating that a boy named A.V. or Alejandro was sexually and physically assaulting and bullying S.R. by pushing and kicking her, trying to touch her breasts and buttocks, and pulling her hair and shirt. When S.R.'s father requested that Rago and the school stop A.V.'s behavior, Rago responded that she did not have a student named A.V. or Alejandro in her class and she did not supervise any such student. According to plaintiffs, Rago did not investigate or report plaintiffs' complaints to school officials, the authorities, or any governmental agencies. Plaintiffs alleged that, via her meetings with plaintiffs, Rago discovered and was suspicious about abuse and sexual assault and did not report it, despite policy and mandatory reporting requirements. Plaintiffs asserted that Rago did not have the discretion not to report complaints of sexual harassment.

         ¶ 12 After school on May 5, 2005, S.R. and A.V., along with other children, got on the special needs bus. There, A.V. again sexually and physically assaulted, battered, bullied, hit, restrained, and threatened S.R., including by pulling down her jeans and underpants and inserting his mouth and tongue into S.R.'s vagina and genitals. S.R.'s mother was waiting for S.R. to exit the bus at the designated bus stop when the bus arrived. After stopping the bus, the bus driver and Sharp called the Coonley School to inform the principal of the assault, battery, and bullying of S.R., but made no further calls to any other authorities appropriate to investigate under the Abused and Neglected Child Reporting Act (Reporting Act) (325 ILCS 5/1 et seq. (West 2014)). Eventually, the bus driver opened the door to the bus and asked S.R.'s mother to enter the bus because someone on the phone wanted to talk with her. Once S.R.'s mother was on the phone, the Coonley School secretary apologized for what happened and stated that S.R. had been sexually and physically attacked, battered, and assaulted by A.V. S.R.'s mother looked to the back of the bus and saw S.R. pulling up her underpants and jeans. Ultimately, the Coonley School assistant principal called the police, A.V. was suspended, and the Board recommended that Sharp be terminated.

         ¶ 13 Count I of the complaint alleged willful and wanton conduct related to the Board and Rago and Sharp as agents. Count II alleged willful and wanton conduct against Rago and Sharp individually. In both counts, plaintiffs alleged in part that defendants committed one or more of the following willful and wanton acts and/or omissions in reckless or careless disregard for S.R.'s safety and welfare: (1) failed to investigate or report the complaints by S.R.'s father to Rago of the assaults, battery, and bullying; (2) failed to report to the child abuse Hotline number regarding the complaints of S.R.'s father to Rago; (3) failed to refer S.R.'s complaints in writing to the Board's sexual harassment officer or designee as required by Board policy; (4) failed to follow the Board's practices and procedures for investigating sexual and physical harassment, assault, battery, bullying, and other improper acts by one student against another student; (5) failed to take appropriate disciplinary and remedial action when they knew or should have known that Sharp was derelict in her duties; (6) failed to monitor A.V.'s activities on the bus, including allowing him to roam the bus without wearing a seat belt; (7) failed to keep A.V. seat-belted in his assigned seat, in violation of the Board's policies; (8) failed to report A.V.'s behavioral problems on the bus, in violation of the essential functions of a bus aide; (9) failed to remain awake and alert; (10) allowed A.V. on the bus without his name appearing on the roster; and (11) allowed A.V. to ride the bus in violation of the Board's sibling transportation policy. Plaintiffs asserted that as a direct and proximate cause of the aforementioned willful and wanton conduct, S.R. was sexually and physically assaulted, battered, and bullied by A.V. while on the bus and suffered severe and permanent injuries.

         ¶ 14 In count III, plaintiffs asserted a claim under a provision of the Rights of Married Persons Act, commonly referred to as the Family Expense Act (750 ILCS 65/15 (West 2014)).

         ¶ 15 The Board filed a motion to dismiss the second amended complaint under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2014)), contending that dismissal was warranted by the Act. Defendants asserted that plaintiffs' claims were barred by sections 2-103 and 2-205 of the Act (745 ILCS 10/2-103, 2-105 (West 2014)). Defendants maintained that section 4-102 of the Act (745 ILCS 10/4-102 (West 2014)) shielded them against all allegations that they failed to prevent or protect S.R. from criminal sexual assaults. Defendants further asserted that section 2-201 of the Act (745 ILCS 10/2-201 (West 2014)) barred plaintiffs' claims about transportation, placement, and discipline. In response, plaintiffs submitted copies of their first and second amended complaints.

         ¶ 16 In a written order, the court granted defendants' motion to dismiss with prejudice. The court found that "to the extent that the claims in counts I through III are based on the failure to follow, enforce, or enact any laws, policies, or procedures, the [d]efendants are absolutely immune from liability" under sections 2-205 and 2-103 of the Act. The court also found that defendants were absolutely immune under section 4-102 of the Act. The court stated that the crux of the allegations came down to defendants' failure to prevent and/or stop the alleged sexual abuse, and so the claims effectively alleged a failure to provide police protection services and the failure to prevent a crime. Lastly, defendants were immune under section 2-201 of the Act. The court maintained that most of the decisions at issue about student transportation, placement, and discipline all involved the determination of policy and the exercise of discretion. The court noted that to the extent that plaintiffs alleged any ministerial decisions about the failure to report abuse or harassment or follow any mandated procedure, defendants would not be immune under section 2-201. However, those acts would still be immunized under sections 4-102, 2-103, and 2-205 of the Act. The court concluded that its finding was made under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) and there was no just reason to delay the enforcement or appeal of the order.

         ¶ 17 II. ANALYSIS

         ¶ 18 A. ...


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