FILED 2014 IL App (4th) 130503 April 18, 2014 Carla Bender NO. 4-13-0503 4th District Appellate Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
JASMINE BROOKS, as Special Administrator of the ) Appeal from Estate of Donnie Hampton, Deceased, ) Circuit Court of Plaintiff-Appellant, ) McLean County v. ) No. 12L126 McLEAN COUNTY UNIT DISTRICT NO. 5, ) Defendant-Appellee. ) Honorable ) Rebecca Simmons Foley, ) Judge Presiding. ____________________________________________________________
JUSTICE POPE delivered the judgment of the court, with opinion. Presiding Justice Appleton and Justice Knecht concurred in the judgment and opinion.
OPINION
¶1 On May 18, 2010, Donnie Hampton, a student at Kingsley Junior High School
(Kingsley) in Normal, Illinois, was in a boys' bathroom at the school with other students playing
a "game" called "Body Shots." According to the complaint in this case, the game involved
students voluntarily punching each other with closed fists as hard as they could in the abdomen,
chest, and ribs. After participating in the game, Hampton exited the bathroom, collapsed in the
hallway, and later died.
¶2 On February 1, 2013, plaintiff, Jasmine Brooks, the special administrator of
Hampton's estate, filed a first amended three-count complaint against McLean County Unit
District No. 5 (McLean), which operated Kingsley. The complaint alleged, inter alia, Hampton's death was the result of willful and wanton conduct on the part of McLean. On February 19,
2013, McLean filed a combined motion to dismiss the complaint with prejudice, which the trial
court granted.
¶3 Brooks appeals, arguing the trial court erred in (1) applying the public-duty rule
instead of engaging in a traditional duty analysis, (2) finding the complaint failed to plead
sufficient facts to establish willful and wanton misconduct, and (3) holding the complaint was
barred by sections 4-102, 2-201, and 2-109 of the Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4-102, 2-201, 2-109 (West
2012)). We affirm.
¶4 I. BACKGROUND
¶5 Count I of Brooks' first amended three-count complaint sought medical expenses
under the Illinois Rights of Married Persons Act, often referred to as the Family Expense Act
(750 ILCS 65/15 (West 2012)). Count II sought recovery under the Illinois Wrongful Death Act
(740 ILCS 180/1 (West 2012)). Count III sought damages pursuant to the Illinois Survival Act
(755 ILCS 5/27-6 (West 2012)).
¶6 The allegations common to all three counts include the following: (1) the "Body
Shots" game was routinely played at Kingsley and other schools in the district for more than a
year prior to Hampton's death; (2) students had been injured playing the game prior to Hampton's
death; (3) McLean owed a duty to hire competent staff to instruct students regarding the dangers
of playing the game; (4) Lynette Mehall, Kingsley's principal, and/or Marlys Bennington,
Kingsley's support principal, knew students played the game in Kingsley bathrooms; (5) the staff
at Kingsley, who stand in loco parentis status to the students, failed to control the behavior of the
-2- students and punish known dangerous behavior to prevent injury; (6) McLean owed a duty to
supervise students to prevent them from playing the game; (7) McLean's failure to supervise the
students and enforce its policies despite its prior knowledge amounted to willful and wanton
conduct; (8) McLean willfully and wantonly (a) failed to monitor the bathrooms to make sure
students were not striking each other, (b) failed to educate its students regarding the dangers of
playing the game, (c) allowed students to play the game on school premises, (d) failed to enforce
policies and procedures to prevent students from playing the game and/or engaging in other
physically violent behaviors on school premises, and (e) failed to keep the students safe; and (9)
McLean's willful and wantons acts or omissions resulted in the injuries causing Hampton's death.
¶7 On February 19, 2013, McLean filed a combined motion to dismiss Brooks'
complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Procedure Code) (735
ILCS 5/2-619.1 (West 2012)) (allowing combined motions under sections 2-615 and 2-619 of the
Procedure Code (735 ILCS 5/2-615, 2-619 (West 2012)), arguing the following: (1) counts I and
III should be dismissed because no probate estate had been opened and Brooks' authority as
special administrator only allowed for prosecution of a wrongful death claim, i.e., count II; (2)
McLean owed no duty to protect individual students from tortious acts of others under the
public-duty rule; (3) Brooks failed to allege a special duty exception to the public-duty rule; (4)
assuming McLean owed a duty, the complaint was still barred by various sections of the Tort
Immunity Act (745 ILCS 10/4-102, 2-201, 2-109 (West 2012)); and, finally, (5) even assuming
McLean owed a duty and the Tort Immunity Act did not apply, the complaint should still be
dismissed because Brooks failed to plead sufficient facts to demonstrate willful and wanton
conduct.
-3- ¶8 On April 25, 2013, the trial court held a hearing on McLean's motion to dismiss.
We note no report of the proceedings for this hearing is included in the record on appeal.
¶9 On May 1, 2013, the trial court dismissed the complaint with prejudice on section
2-615 grounds (735 ILCS 5/2-615 (West 2012)) where it (1) failed to allege facts demonstrating
a special duty was owed under the public-duty rule and (2) failed to allege facts demonstrating
willful and wanton conduct. The court also dismissed the complaint pursuant to section 2-619 of
the Procedure Code (735 ILCS 5/2-619 (West 2012)) finding it was barred by sections 4-102, 2-
201, and 2-109 of the Tort Immunity Act (745 ILCS 10/4-102, 2-201, 2-109 (West 2012)).
¶ 10 This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 On appeal, Brooks argues the trial court erred in (1) applying the public-duty rule
instead of engaging in a traditional duty analysis, (2) finding the complaint failed to plead
sufficient facts to establish willful and wanton misconduct, and (3) holding the complaint was
barred by sections 4-102, 2-201, and 2-109 of the Tort Immunity Act.
¶ 13 A. Standard of Review
¶ 14 Section 2-619.1 of the Procedure Code (735 ILCS 5/2-619.1 (West 2012)) permits
a defendant to file a combined motion to dismiss pursuant to sections 2-615 and 2-619 of the
Procedure Code (735 ILCS 5/2-615, 2-619 (West 2012)). A section 2-615 motion to dismiss
"tests the legal sufficiency of the complaint," while a section 2-619 motion "admits the legal
sufficiency of the complaint, but asserts affirmative matter outside the complaint that defeats the
cause of action." Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361, 919 N.E.2d 926, 931-32
(2009). This court reviews the dismissal under either section de novo. Kean, 235 Ill. 2d at 361,
-4- 919 N.E.2d at 932. On appeal, we "review the trial court's judgment, not its rationale," and we
"can affirm for any reason the record supports." People v. Reed, 361 Ill. App. 3d 995, 1000,
838 N.E.2d 328, 332 (2005).
¶ 15 B. Standing to Bring Counts I and III
¶ 16 As an initial matter, McLean argues we should affirm the trial court's dismissal of
count I (Family Expense Act) and count III (Survival Act) because Brooks lacked standing to
bring those claims. Specifically, McLean contends counts I and III should be dismissed because
no probate estate had been opened and Brooks' authority as special administrator only allowed
the prosecution of a wrongful death claim, i.e., count II.
¶ 17 In her appellate brief, Brooks agrees no probate estate had been opened in this
case. As such, she only had standing to bring a claim under the Wrongful Death Act (count II).
See 740 ILCS 180/2.1 (West 2012) (appointment of a special administrator under the Wrongful
Death Act is for the sole purpose of either prosecuting or defending the wrongful death action);
Baez v. Rosenberg, 409 Ill. App. 3d 525, 532, 949 N.E.2d 250, 259 (2011) ("[w]hereas executors
and administrators appointed under the Probate Act are given powers to collect and manage[]
assets, pay claims and make distributions [citation], the powers and duties of a special
administrator are strictly limited to those prescribed by the wrongful death statute [citation]").
Accordingly, Brooks' authority to prosecute a cause of action "was limited to the wrongful death
claim." Baez, 409 Ill. App. 3d at 533, 949 N.E.2d at 259.
¶ 18 Brooks concedes the point, stating in her reply brief a probate estate would be
opened and she would file an amended complaint "to cure any defect in this regard" if the matter
is reversed. Although this issue was raised in McLean's motion to dismiss, no probate estate was
-5- opened and Brooks did not move to amend the complaint. Considering the state of the case
before us and Brooks' acknowledgment she lacked standing to prosecute other claims as special
administrator, we affirm the trial court's dismissal of counts I and III. See In re Marriage of
Gary, 384 Ill. App. 3d 979, 987, 894 N.E.2d 809, 816 (2008) (we may affirm on any basis
supported by the record, regardless of whether the trial court based its decision on it).
Accordingly, we will confine our review on appeal to Brooks' wrongful death claim (count II).
(We note the core allegations of count II mirror those of counts I and III.)
¶ 19 C. Duty of Care
¶ 20 No separate and independent tort of willful and wanton conduct exists in Illinois.
Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274, 641 N.E.2d 402, 406 (1994). Instead, it is
viewed as an aggravated form of negligence. Sparks v. Starks, 367 Ill. App. 3d 834, 837, 856
N.E.2d 575, 577 (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, i.e., (1) defendant owed
a duty to the plaintiff, (2) defendant breached the duty, and (3) the breach was the proximate
cause of the plaintiff's injury. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 225, 938
N.E.2d 440, 446 (2010). 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, 820 N.E.2d 418, 423 (2004). However, we must first determine whether McLean
owed Hampton a duty. See Scarano v. Town of Ela, 166 Ill. App. 3d 184, 187, 520 N.E.2d 62,
64 (1988) (duty is a prerequisite to any willful and wanton cause of action). The question of
whether a duty exists is a question of law. Krywin, 238 Ill. 2d at 226, 938 N.E.2d at 447.
¶ 21 1. Public-Duty Rule
-6- ¶ 22 Brooks argues the trial court erred in applying the public-duty rule in determining
whether McLean owed a duty instead of engaging in a traditional duty analysis. We agree.
¶ 23 "The public[-]duty rule is a long-standing precept which establishes that a
governmental entity and its employees owe no duty of care to individual members of the general
public to provide governmental services, such as police and fire protection. [Citation.] This rule
of nonliability is grounded in the principle that the duty of the governmental entity to 'preserve
the well-being of the community is owed to the public at large rather than to specific members of
the community.' [Citation.]" Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 32, 697 N.E.2d
699, 702 (1998). As such, the public-duty rule has historically been applied to cases involving
conduct by policemen, firemen, or other first-responder-type personnel of various branches of
governmental entities. See Doe-3 v. White, 409 Ill. App. 3d 1087, 1095, 951 N.E.2d 216, 225
(2011) ("rule generally applies when a plaintiff alleges damages based on a governmental entity's
failure to perform adequate governmental services").
¶ 24 The public-duty rule was applied to a school district in Thames v. Board of
Education, 269 Ill. App. 3d 210, 645 N.E.2d 445 (1994). That case involved allegations the
defendant's failure to install metal detectors or to adopt weapons interdiction measures, despite
knowledge guns had previously been brought into some of the defendant's schools, caused a
student's death. Thames, 269 Ill. App. 3d at 211, 645 N.E.2d at 447. The rule was applied in a
school context again in Lawson v. City of Chicago, 278 Ill. App. 3d 628, 662 N.E.2d 1377
(1996). However, like Thames, that case involved allegations a student's death on school
premises was caused by the school board's failure to maintain its property by having metal
detectors. Lawson, 278 Ill. App. 3d at 632-33, 662 N.E.2d at 1381. In both cases, the allegations
-7- attacked the schools' respective failures to implement police-like protective measures. The
allegations in this case do not approach those in either Thames or Lawson.
¶ 25 Moreover, the question is not whether the public-duty rule should be applied to a
school district. Instead, it is the nature of the alleged conduct which determines the rule's
applicability. See Doe-3, 409 Ill. App. 3d at 1096, 951 N.E.2d at 226 (noting the distinction
between "conduct that would give rise to a conclusion that a governmental entity owes a duty to
protect the public at large and not individual citizens and conduct by the governmental entity that
specifically creates the danger complained of"). Here, Brooks does not allege McLean owed an
affirmative duty to protect Hampton. Instead, the complaint alleges McLean's failure to
supervise students, educate them on the danger of playing the game, and enforce existing policies
created the danger to Hampton. As such, the public-duty rule is not implicated in this case. See
Doe-3 v. McLean County Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 40, 973
N.E.2d 880 (finding public-duty rule not applicable where the "plaintiffs [did] not allege [the]
defendants failed to protect them or that they owed any affirmative duty to do so").
¶ 26 2. Traditional Duty Analysis
¶ 27 Because we have found the public-duty rule inapplicable in this case, we must
now determine whether Brooks' allegations demonstrate sufficient facts to establish the existence
of a duty under a traditional duty analysis. The existence of a duty is a question of law shaped
by public policy considerations. LaFever v. Kemlite Co., 185 Ill. 2d 380, 388, 706 N.E.2d 441,
446 (1998). Whether the law will impose an obligation of reasonable conduct upon a defendant
for the benefit of a plaintiff depends on the nature of their relationship. Marshall v. Burger King
Corp., 222 Ill. 2d 422, 441, 856 N.E.2d 1048, 1060 (2006); LaFever, 185 Ill. 2d at 388-89, 706
-8- N.E.2d at 446. The following four factors are relevant to whether a duty exists: (1) the
reasonable foreseeability of the plaintiff's injury, (2) the reasonable likelihood of the injury, (3)
the magnitude of the defendant's burden of guarding against the injury, and (4) the consequences
of placing that burden on the defendant. LaFever, 185 Ill. 2d at 389, 706 N.E.2d at 446.
¶ 28 In this case, the complaint alleged McLean knew the game was being played by
students in the bathrooms of its schools for a year prior to Hampton's death. The complaint
further alleged Mehall and/or Bennington was aware the game "involved boys striking each other
about the chest and abdomen." The complaint stated "several students" had been injured playing
the game. Brooks also alleged the staff at Kingsley, "who stand in loco parentis status to the
students," failed "to control the behavior of the students" and "punish known dangerous behavior
to prevent injury to students." See Henrich v. Libertyville High School, 186 Ill. 2d 381, 388, 712
N.E.2d 298, 302 (1998) (section 24-24 of the School Code (105 ILCS 5/24-24 (West 1994))
confers on educators in loco parentis status in matters relating to the supervision of students).
The complaint also alleged McLean's failure to properly supervise its students led to Hampton's
injuries.
¶ 29 We find Brooks' first amended complaint sufficiently established McLean owed a
duty to supervise the students as part of an overall duty to maintain discipline. See 105 ILCS
5/24-24 (West 2012) (educational employees "shall maintain discipline in the schools"). Once a
court determines a duty exists, the next inquiry is whether the Tort Immunity Act applies.
Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 480, 763 N.E.2d
756, 760 (2002) (citing Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490,
752 N.E.2d 1090, 1096 (2001)).
-9- ¶ 30 D. Tort Immunity Act
¶ 31 A public entity is liable in tort to the same extent as a private party unless an
immunity provision applies. Trtanj v. City of Granite City, 379 Ill. App. 3d 795, 802-03, 884
N.E.2d 741, 748 (2008). Immunity from suit under the Tort Immunity Act is an "affirmative
matter" properly raised under section 2-619(a)(9) of the Procedure Code. DeSmet v. County of
Rock Island, 219 Ill. 2d 497, 504, 848 N.E.2d 1030, 1035 (2006); Van Meter v. Darien Park
District, 207 Ill. 2d 359, 367, 799 N.E.2d 273, 278 (2003); 735 ILCS 5/2-619(a)(9) (West 2012).
"Because the immunities afforded to governmental entities operate as an affirmative defense,
those entities bear the burden of properly raising and proving their immunity under the [Tort
Immunity] Act." Van Meter, 207 Ill. 2d at 370, 799 N.E.2d at 280; DeSmet, 219 Ill. 2d at 504,
848 N.E.2d at 1035. "It is only when the governmental entities have met this burden that a
plaintiff's right to recovery is barred." Van Meter, 207 Ill. 2d at 370, 799 N.E.2d at 280. Here,
the trial court found the complaint was barred by sections 4-102, 2-201, and 2-109 of the Tort
Immunity Act (745 ILCS 10/4-102, 2-201, 2-109 (West 2012)).
¶ 32 Section 4-102 of the Tort Immunity Act provides, in relevant part, the following:
"Neither a local public entity nor a public employee is liable for
failure to establish a police department or otherwise provide police
protection service or, if police protection service is provided, for
failure to provide adequate police protection or service, failure to
prevent the commission of crimes, failure to detect or solve crimes,
and failure to identify or apprehend criminals." 745 ILCS 10/4-
102 (West 2012).
- 10 - ¶ 33 Brooks argues McLean's failure to monitor students in the bathrooms should be
seen more as a supervisory act under section 3-108 and not a police protective act per section 4-
102 of the Tort Immunity Act. The rationale underlying Brooks' argument is the fact section 3-
108 contains an exception for willful and wanton conduct and section 4-102 does not.
¶ 34 Sections 3-108(a) and (b) of the Tort Immunity Act, which provide immunity for
injuries resulting from a failure to supervise, state the following:
"(a) Except as otherwise provided in this Act, neither a local public
entity nor a public employee who undertakes to supervise an
activity on or the use of any public property is liable for an injury
unless the local public entity or public employee is guilty of willful
and wanton conduct in its supervision proximately causing such
injury.
(b) Except as otherwise provided in this Act, neither a local
public entity nor a public employee is liable for an injury caused
by a failure to supervise an activity on or the use of any public
property unless the employee or the local public entity has a duty
to provide supervision imposed by common law, statute,
ordinance, code or regulation and the local public entity or public
employee is guilty of willful and wanton conduct in its failure to
provide supervision proximately causing such injury." 745 ILCS
10/3-108(a), (b) (West 2012).
- 11 - ¶ 35 While a broad reading of Brooks' allegations could arguably describe McLean's
failure to protect its students, the allegations more properly relate to McLean's failure to
supervise them despite knowing the game was being played in the bathrooms of its schools.
Only an unreasonably broad reading could cast the complaint as alleging a failure on the part of
McLean to provide "police protection services" for its students while in the bathrooms.
Likewise, reading the complaint to allege only a failure to protect claim would be to construe the
pleadings too narrowly. Thus, we view the allegations in Brooks' complaint as asserting McLean
failed to supervise its students. Based on the allegations in Brooks' complaint, we find section 4-
102 of the Tort Immunity Act does not immunize McLean from liability.
¶ 36 However, because we have characterized the allegations as alleging a failure to
supervise, we agree section 3-108 of the Tort Immunity Act does apply in this case. As stated,
section 3-108 contains an exception for willful and wanton conduct not found in section 4-102.
Thus, in order to defeat McLean's immunity under section 3-108, Brooks' complaint must
properly allege willful and wanton conduct on McLean's part. See Doe v. Chicago Board of
Education, 339 Ill. App. 3d 848, 856, 791 N.E.2d 1283, 1290 (2003).
¶ 37 E. Willful and Wanton Conduct
¶ 38 The Tort Immunity Act defines willful and wanton conduct as "a course of action
which shows an actual or deliberate intention to cause harm or which, if not intentional, shows
an utter indifference to or conscious disregard for the safety of others or their property." 745
ILCS 10/1-210 (West 2012). "A determination of willful and wanton conduct will be based on
the facts of any given case." Burke v. 12 Rothchild's Liquor Mart, Inc., 148 Ill. 2d 429, 451, 593
N.E.2d 522, 532 (1992). "When the plaintiff is alleging that the defendant engaged in willful
- 12 - and wanton conduct, such conduct must be shown through well-pled facts, and not by merely
labelling the conduct willful and wanton." Winfrey v. Chicago Park District, 274 Ill. App. 3d
939, 943, 654 N.E.2d 508, 512 (1995). Thus, to properly plead willful and wanton conduct,
Brooks' complaint must allege facts demonstrating either a deliberate intention to harm or utter
indifference toward or conscious disregard for Hampton's welfare.
¶ 39 Paragraph 16 of Brooks' complaint contains the following allegations of McLean's
willful and wanton conduct:
"[McLean,] in light of its employees' prior knowledge of
THE GAME and its potential consequences, was guilty of one or
more of the following acts or omissions of negligence:
a) Willfully and wantonly failed to monitor
the bathrooms and other areas of the school to make
sure the students were not striking each other;
b) Willfully and wantonly failed to educate
its students regarding the danger of playing THE
GAME;
c) Willfully and wantonly allowed students
to play THE GAME on school premises;
d) Willfully and wantonly failed to enforce
policies and procedures to prevent students from
playing THE GAME and/or other physically violent
behavior on school premises.
- 13 - e) Was otherwise willful and wanton in
keeping the students safe."
¶ 40 However, Brooks' complaint does not plead facts establishing a "course of action"
showing a deliberate intention by McLean to harm Hampton. Nor does the complaint allege
sufficient facts establishing an "utter indifference to or conscious disregard" for Hampton's
safety. Instead, the complaint states generally McLean knew the game was being played in
bathrooms of the school and failed to monitor students in the bathrooms in order to keep those
students safe. However, "[a]llegations of a failure to supervise student activities are not
sufficient to state a cause of action for wilful and wanton misconduct." Holsapple v. Casey
Community Unit School District C-1, 157 Ill. App. 3d 391, 393, 510 N.E.2d 499, 500 (1987).
¶ 41 Further, while the complaint alleges "[s]everal kids who play THE GAME in
[McLean's] junior high schools have been hurt," it stops short of pleading McLean had any
knowledge of past injuries to its students. Although the complaint describes the game as
consisting of "people voluntarily punching each other as hard with closed fists as they can in the
abdomen, chest[,] and ribs," it does not allege McLean was aware of the extent of what the game
entailed. Instead, the complaint alleges only Mehall and/or Bennington was aware the game
"involved boys striking each other about the chest and abdomen." Moreover, the complaint does
not allege facts demonstrating McLean was aware Hampton had previously engaged in the
behavior or any specific danger to Hampton existed on May 18, 2010. In fact, nothing in the
complaint suggests McLean had any reason to know Hampton was any more likely to engage in
the behavior than any other student in any of the schools in the district.
¶ 42 Overall, Brooks alleged no facts, which, if proved, would permit the inference
- 14 - McLean's conduct was willful and wanton, as opposed to possibly merely negligent. Because
Brooks' complaint does not adequately plead allegations of willful and wanton conduct, section
3-108 of the Tort Immunity Act operates to immunize McLean from liability in this case. See
Henrich, 186 Ill. 2d at 391, 712 N.E.2d at 304 (plain language of section 3-108 of the Tort
Immunity Act immunizes against a failure to supervise).
¶ 43 In sum, although McLean owed a duty to supervise its students, Brooks' first
amended complaint was properly dismissed pursuant to section 3-108 of the Tort Immunity Act
where the complaint failed to adequately plead allegations showing willful and wanton conduct.
Because we have found section 3-108 applies, we need not address whether sections 2-201 or 2-
109 of the Tort Immunity Act also apply. See DeSmet, 219 Ill. 2d at 509, 848 N.E.2d at 1038 (it
is the reviewing court's prerogative to forgo determination of issues unnecessary to the outcome
of a case).
¶ 44 III. CONCLUSION
¶ 45 For the reasons stated, we affirm the trial court's judgment.
¶ 46 Affirmed.
- 15 -