2025 IL App (2d) 250038-U No. 2-25-0038 Order filed December 5, 2025
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
JANE DOE, Individually and as Mother and ) Appeal from the Circuit Court Next Friend of Minor-Doe, a Minor, ) of Kane County. ) Plaintiff-Appellant, ) ) v. ) No. 24-LA-98 ) BOARD OF EDUCATION OF ) COMMUNITY UNIT SCHOOL DISTRICT ) 300, and ADAM FAULKNER, ) ) Defendants ) ) Honorable (Board of Education of Community Unit ) Kevin T. Busch, School District 300, Defendant-Appellee). ) Judge, Presiding. ______________________________________________________________________________
PRESIDING JUSTICE KENNEDY delivered the judgment of the court. Justices McLaren and Schostok concurred in the judgment.
ORDER
¶1 Held: Vicarious liability claim against a school board based on the misconduct of a teacher toward a student did not state a claim of willful and wanton misconduct because plaintiff did not properly allege that the school board had constructive notice of the teacher’s capacity for misconduct.
¶2 Plaintiff, Jane Doe, individually and as mother and next friend of Minor-Doe (the minor),
appeals the dismissal, with prejudice, of her claim of willful and wanton conduct against defendant 2025 IL App (2d) 250038-U
the Board of Education of Community Unit School District 300 (District) in count I of plaintiff’s
amended complaint. We agree with the trial court that the claim of willful and wanton conduct
failed to state a cause of action. Therefore, we affirm.
¶3 I. BACKGROUND
¶4 On March 4, 2024, plaintiff filed a six-count complaint against the District and Adam
Faulkner. When the complaint was filed, the minor, a female, was 17 years old. The common
allegations of the complaint were, in sum, that Faulkner, while employed by the District, engaged
in misconduct toward the minor and other students in the District. Counts I, IV, and VI named the
District. Count I alleged willful and wanton conduct and that the District breached its duties toward
the minor in various respects.
¶5 On May 24, 2024, the District filed a combined motion to dismiss counts I, IV, and VI of
the complaint under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1
(West 2022)). As relevant here, the District argued that count I failed to plead a claim of willful
and wanton conduct and that, in so far as count I stated a claim of ordinary negligence, it was
barred by section 3-108(a) of the Local Governmental and Governmental Employees Tort
Immunity Act (Tort Immunity Act) (745 ILCS 10/3-108(a) (West 2022)) and section 24-24 of the
School Code (105 ILCS 5/24-24 (West 2022)). The District argued, inter alia, that plaintiff did
not properly allege that the District had notice of Faulkner’s capacity for misconduct before he
acted improperly toward the minor. Plaintiff did not respond to the motion.
¶6 On June 11, 2024, the trial court heard the District’s motion. At the hearing, plaintiff made
an oral motion to allow discovery that plaintiff claimed was needed to respond to the District’s
assertion that it lacked notice that Faulkner was a danger to students. The court denied plaintiff’s
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motion for discovery and, without ruling on the motion to dismiss, granted plaintiff leave to file
an amended complaint.
¶7 On June 24, 2024, plaintiff filed a six-count amended complaint. Count I named the District
and alleged willful and wanton conduct. Count II named Faulkner and alleged willful and wanton
conduct. Count III named Faulkner and alleged a violation of federal law. Count IV named the
District and alleged a violation of federal law. Count V named Faulkner and alleged intentional
infliction of emotional distress. Finally, count VI named both the District and Faulkner and sought,
under Illinois statutory authority, reimbursement of the minor’s medical costs. Only count I is at
issue on appeal.
¶8 According to the amended complaint’s common allegations, the following occurred during
the relevant time period of 2022 to 2023. The District owned and operated Hampshire High School
(high school). The District “interviewed, selected, hired, trained, supervised, employed, controlled,
and/or provided administrators, teachers, aides, and other personnel for [the high school].”
Faulkner was “an employee, agent, and/or representative of [the District] and assigned as an aide
or teacher for a sophomore biology class at [the high school].” The minor and two other female
classmates, “[Classmate 1]” and “[Classmate 2],” were enrolled in the biology class. The District
“placed [Faulkner] in charge of [the minor] to teach, supervise[,] and act in loco parentis.”
¶9 Paragraphs 12-16 of the amended complaint alleged grooming behavior by Faulkner 1 and
referenced a criminal prosecution against him:
“12. Based on the indictment by Kane County State’s Attorney, beginning in
approximately August 2022, [Faulkner] began grooming and/or engaging in grooming
1 Plaintiff’s original complaint did not allege grooming by Faulkner.
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behavior towards three minor female students [the minor, Classmate 1, and Classmate 2]
during class and/or in school, trying to ascertain their vulnerabilities for potential sexual
activities.
13. Beginning in approximately August 2022, as part of the grooming behavior in
paragraph 12, [Faulkner] sought to meet [Classmate 1] privately and without the
supervision, knowledge[,] or consent of her parents.
14. Beginning in approximately August 2022, as part of the grooming behavior in
paragraph 12, [Faulkner] demanded and/or directed [Classmate 1] to lie to her parents
about her activities and whereabouts, deliberately done so he could meet [Classmate 1]
privately and without the supervision, knowledge or consent of her parents.
15. Beginning in approximately August 2022, as part of the grooming behavior in
paragraph 12, [Faulkner] harassed, intimidated, and/or threatened [Classmate 2] during
class and/or in school, including threats to cause her bodily and emotional harm.
16. Beginning in approximately August 2022, and while engaging in the behavior
in paragraphs 12-15, [Faulkner] continued to groom and/or probe [the minor’s]
vulnerabilities during biology class, still intending to engage in sexual activities with [the
minor].”
¶ 10 Paragraph 17 alleged additional misconduct by Faulkner toward the minor:
“17. For at least two weeks during March 2023, during biology class, [Faulkner]
made vile threats to [the minor] consisting of threats to harm and/or kill [the minor] and/or
her family. On some days, this occurred multiple times in one day.”
¶ 11 The common allegations concluded with paragraphs 18 and 19, which referred back to
paragraphs 12 to 17:
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“18. Regarding the behavior in paragraphs 12-17 occurring in class, at all times
there was another teacher, employee, aide or staff member present in addition to
[Faulkner], and this person was an agent and/or representative of [the District].
19. Regarding the behavior in paragraphs 12-17 occurring in biology class, this
occurred more than occasionally, and in close proximity to [the District’s]
agent/representative identified in paragraph 18.”
¶ 12 Plaintiff’s allegations in count I began by stating that, during the relevant time, the District
had duties to (1) supervise and protect students; (2) supervise and control teachers and aides;
(3) “enforce and comply with its rules, guidelines, policies, and procedures”; (4) “employ and
provide competent teachers and personnel, including but not limited to school leadership,
administrators, staff, aides, and counselors”; and (5) “safeguard students such as [the minor] from
harassment, intimidation, and threats.”
¶ 13 Plaintiff proceeded to allegations of breach:
“26. [The District] willfully and wantonly breached the aforesaid duties because of
one or more of the following:
a) permitted [the minor] to be groomed, harassed, intimidated, and
threatened, violating Sections 2:265, 7:20, and 7:180 of [the District’s] policies and
Illinois’ Educator Code of Ethics.
b) failing to supervise and protect [the minor].
c) failing to supervise and control [Faulkner].
d) failing to monitor [Faulkner’s] compliance with (and preventing
[Faulkner] from violating) employee-student boundaries, violating Section 5:120
of [the District’s] policies.
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e) failing to properly investigate [Faulkner’s] grooming, harassment,
intimidation, and threats of [sic] female students in the biology class.
f) failing to properly investigate [Faulkner’s] sexual behavior with/toward
female students in the biology class.
g) failing to properly report [Faulkner’s] harassment, intimidation, and
threats.
h) failing to properly report [Faulkner’s] grooming and other behaviors
which violated employee-student boundaries; and,
i) failing to enforce and comply with its rules, guidelines, policies &
procedures.”
¶ 14 Plaintiff alleged that “[t]he acts and omissions described herein *** were done with utter
indifference to and/or conscious disregard for [the minor’s] safety and well-being.” The District
was “vicariously liable for [Faulkner’s] acts and omissions described herein.”
¶ 15 Next, plaintiff included allegations about the District’s knowledge of Faulkner’s
misconduct:
“29. Given the frequency with which it was occurring in biology class, as early as
August 2022, and that it was occurring in proximity to one of [the District’s]
agents/representatives other than [Faulkner], [the District] knew, prior to March 2023, that
[Faulkner] was grooming and/or engaging in grooming behavior towards [the minor],
[Classmate 1], and [Classmate 2], trying to ascertain their vulnerabilities for potential
sexual activities; yet, [the District] took no (or grossly inadequate) measures to prevent
such behavior and protect [the minor].
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30. In conjunction with paragraph 29, [the District] knew, prior to March 2023, that
[Faulkner] would engage in threatening and manipulative behavior toward [the minor] in
pursuit of sexual activity with her.”
¶ 16 On July 11, 2024, plaintiff filed a written motion for discovery. The motion sought,
inter alia, any records, data, and communications concerning Faulkner, including his personnel
file and background checks. The motion also sought the names of all persons claiming to have
potentially relevant information about the claims in the amended complaint and “the pending
criminal case against [Faulkner]” (plaintiff attached a copy of an indictment filed against Faulkner
in May 2023). Plaintiff claimed that the District “ha[d] virtually exclusive control” over evidence
related to whether the District knew of Faulkner’s misconduct.
¶ 17 On July 16, 2024, the District filed a combined motion to dismiss the three counts (I, IV,
and VI) of the amended complaint that named the District. See 735 ILCS 5/2-619.1 (West 2022).
As relevant here, the District argued that count I failed to state a claim of willful and wanton
conduct because plaintiff did not specifically allege how Faulkner groomed or harassed the minor
or how the District became aware of Faulkner’s misconduct. The District further argued that,
insofar as count I alleged ordinary negligence, it was barred under section 3-108(a) of the Tort
Immunity Act (745 ILCS 10/3-108(a) (West 2022)) and section 24-24 of the School Code (105
ILCS 5/24-24 (West 2022)). Plaintiff did not respond to the motion.
¶ 18 On July 22, 2024, the District filed a response opposing plaintiff’s July 11 motion for
discovery.
¶ 19 On August 15, 2024, the trial court heard plaintiff’s motion for discovery. The District
argued that plaintiff was engaging in a “fishing expedition” by making conclusory allegations and
then seeking discovery to flesh them out. The District also challenged plaintiff’s allegation in the
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discovery motion that the District had “exclusive control” of the evidence pertaining to the
amended complaint’s allegations. For instance, the District claimed that plaintiff had exclusive
knowledge as to how specifically the minor was groomed.
¶ 20 The trial court denied plaintiff’s motion for discovery. According to the court, plaintiff’s
“general discovery requests” were not aimed at enabling her to cure the deficiencies identified in
the District’s motion to dismiss, such as the failure to specify how Faulkner groomed the minor.
¶ 21 On October 24, 2024, plaintiff’s counsel filed a freestanding affidavit noting that he had
ordered the transcript of “the criminal trial against [Faulkner] ***, involving assertions of
wrongdoing by Faulkner which are also a basis for the subject civil litigation.” Counsel asked that
plaintiff be given another opportunity to amend the complaint if the trial court found it deficient.
¶ 22 On October 25, 2024, the trial court heard the District’s motion to dismiss. The District
argued that plaintiff’s conduct showed “a pattern of delay” in responding to the District’s two
motions to dismiss. Specifically, plaintiff responded to neither motion but instead sought further
discovery. More recently, plaintiff filed an affidavit seeking an opportunity to further amend the
complaint. The District argued that the transcript in Faulkner’s criminal case had no bearing on
this case and, in any event, Faulkner had been found not guilty on all counts. The District suggested
that plaintiff was on yet another “fishing expedition to search for facts to state a claim which they
simply haven’t stated and, in order to state that claim, should have had those facts to begin with.”
The District asserted that, because plaintiff had failed to respond to the current motion to dismiss,
any arguments in opposition were forfeited.
¶ 23 The District then argued the substance of its motion to dismiss. As relevant here, the
District argued that plaintiff failed to state a claim of willful and wanton conduct. The District
noted that many of the amended complaint’s allegations pertained to the minor’s two classmates,
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who were not parties to the suit. In addition, the District argued that no detail was alleged regarding
Faulkner’s grooming of the minor, much less how the District became aware of Faulkner’s alleged
threats or grooming.
¶ 24 Plaintiff responded that the allegations in the amended complaint had to be taken as true
and that they were sufficient to survive dismissal. Specifically, plaintiff argued that the allegations
established a “pattern” of misconduct that occurred “in immediate proximity” to an agent of the
District. According to plaintiff, “If this conduct is despicable and a teacher heard it and saw it
going on and [did not] do anything about it, *** certainly one reasonable juror could conclude
that’s willful and wanton ***.”
¶ 25 The trial court ruled as follows. The amended complaint read “more like a closing
argument.” “Grooming [was not] really defined,” and the “generic” grooming allegation was based
on an indictment—an improper way to plead. Further, the allegation that Faulkner’s misconduct
occurred “in the presence of somebody [fell] woefully short of knowledge or that this person
actually knew.” According to the court, it was “clear” that plaintiff “[did not] have any facts to
sufficiently allege willful and wanton conduct.”
¶ 26 The trial court did not enter a dismissal order immediately but continued the matter for
status on the counts against Faulkner. On November 4, 2024, the court entered an order dismissing
with prejudice counts I, IV, and VI of the amended complaint for failure to state a cause of action.
The court declined to allow further amendment of the complaint, noting that plaintiff “would be
in sole possession of any allegations supporting any purported cause of action against [the
District].”
¶ 27 Plaintiff filed a timely motion to reconsider, which the trial court denied. Thereafter, the
court granted defendant’s motion to amend the November 4, 2024, order to add language under
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Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) to allow an immediate appeal. This timely
appeal followed.
¶ 28 II. ANALYSIS
¶ 29 At issue on appeal is whether the trial court erred in dismissing count I for failure to state
a cause of action.
¶ 30 The District’s combined motion to dismiss under section 2-619.1 of the Code (735 ILCS
5/2-619.1 (West 2022)) included a motion to dismiss under section 2-615 of the Code (id. § 2-615)
for failure to state a cause of action. A section 2-615 motion to dismiss challenges the legal
sufficiency of a complaint based on defects apparent on its face. Marshall v. Burger King Corp.,
222 Ill. 2d 422, 429 (2006). Consequently, we review de novo an order granting or denying a
section 2-615 motion. Id.
¶ 31 In reviewing the sufficiency of a complaint, we accept as true all well-pleaded facts and all
reasonable inferences that may be drawn from those facts. Id. In addition, we construe the
complaint’s allegations in the light most favorable to the plaintiff. Id. A cause of action should not
be dismissed under section 2-615 unless it is clearly apparent that no set of facts can be proved
that would entitle the plaintiff to recovery. Canel v. Topinka, 212 Ill. 2d 311, 318 (2004). That
said, our supreme court has repeatedly affirmed that Illinois is a fact-pleading jurisdiction.
Marshall, 222 Ill. 2d at 429; Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 40.
Accordingly, “[w]hile the plaintiff is not required to set forth evidence in the complaint [citation],
the plaintiff must allege facts sufficient to bring a claim within a legally recognized cause of action
[citation], not simply conclusions.” Marshall, 222 Ill. 2d at 429-30; see Pooh-Bah Enterprises,
Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009) (“a plaintiff may not rely on mere conclusions
of law or fact unsupported by specific factual allegations”).
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¶ 32 Count I alleged that the District was vicariously liable for Faulkner’s acts against the minor.
In its motion to dismiss, the District cited section 3-108(a) of the Tort Immunity Act and section
24-24 of the School Code, both of which provide school districts with limited immunity for
vicarious liability claims based on the acts of school employees. See In re Estate of Stewart, 2016
IL App (2d) 151117, ¶ 73. “Each of those sections provides immunity against negligent conduct
but not against willful and wanton conduct.” Id. Section 3-108(a) of the Tort Immunity Act states:
“(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.” 745 ILCS
10/3-108(a) (West 2022).
Section 24-24 of the School Code provides that “[i]n all matters relating to the discipline in and
conduct of the schools and the school children, [school employees providing services for the
children] stand in the relation of parents and guardians to the pupils.” 105 ILCS 5/24-24 (West
2022). Under section 24-24, teachers have the same immunity that parents enjoy in relation to their
children, which is immunity from liability for ordinary negligence but not willful and wanton
conduct. Henrich v. Libertyville High School, 186 Ill. 2d 381, 388 (1998). When, as here, a school
district’s liability is premised on the acts of a school employee, section 24-24 confers immunity
from ordinary negligence but not willful and wanton conduct. Id. at 389.
¶ 33 “ ‘Willful and wanton conduct’ ” is “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 2022).
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¶ 34 Our supreme court has explained that there is no separate, independent tort of willful and
wanton conduct. Doe-3 v. McLean County Unit District No. 5 Board of Directors, 2012 IL 112479,
¶ 19. Instead, willful and wanton conduct is considered to be an aggravated form of negligence.
Id. A willful and wanton conduct claim requires a plaintiff to plead the basic elements of a
negligence claim: that the defendant owed a duty to the plaintiff; that the defendant breached that
duty; and that the breach was a proximate cause of the plaintiff’s injury. Id. Thus, “[t]o sufficiently
plead willful and wanton conduct, a plaintiff must allege not only duty, breach, and proximate
cause [citation], but also that the defendant engaged in a course of action that showed a deliberate
intention to harm or an utter indifference to or conscious disregard for the plaintiff's welfare.”
Floyd v. Rockford Park District, 355 Ill. App. 3d 695, 700 (2005).
¶ 35 A plaintiff alleging willful and wanton conduct must show the defendant’s conduct through
well-pleaded facts, and not by merely labeling the conduct willful and wanton. Thurman v.
Champaign Park District, 2011 IL App (4th) 101024, ¶ 10. A qualitative difference necessarily
exists between willful and wanton conduct and negligence; willful and wanton misconduct should
shock the conscience. Oravek v. Community School District 146, 264 Ill. App. 3d 895, 900 (1994).
Although the question of whether a defendant acted willfully and wantonly is generally a question
of fact (Murray v. Chicago Youth Center, 224 Ill. 2d 213, 236 (2007)), “the preliminary question
of whether allegations of willful and wanton misconduct are sufficient to state a cause of action is
a question of law to be determined by a court” (Davis v. Village of Maywood, 2023 IL App (1st)
211373, ¶ 28).
¶ 36 The main issue on appeal is whether count I adequately alleged—as was essential for
plaintiff’s vicarious liability claim—that the District had notice of Faulkner’s capacity for
misconduct in time to protect the minor. Plaintiff argues that it pleaded “sufficient facts that [the]
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‘District’ knew that ‘Faulkner’ was harassing and threatening underage female students in biology
class, including [the minor].”
¶ 37 We begin by reviewing the allegations in plaintiff’s amended complaint, which contained
“grooming” allegations that were not brought in the original complaint. As relevant here, plaintiff
alleged that between 2022 and 2023, the District hired Faulkner and assigned him as an aide or
teacher for a sophomore biology class. The students enrolled in the biology class included the
minor, Classmate 1, and Classmate 2. Beginning in approximately August 2022, Faulkner engaged
in “grooming behavior” toward the minor, Classmate 1, and Classmate 2. Further, “[f]or at least
two weeks during March 2023, during biology class, [Faulkner] made vile threats to [the minor]
consisting of threats to harm and/or kill [the minor] and/or her family. On some days this occurred
multiple times in one day.” At all times during the foregoing misconduct, “another teacher,
employee, aide or staff member [was] present in addition to [Faulkner], and this person was an
agent and/or representative of [the District].” Faulkner’s misconduct “occurred more than
occasionally, and in close proximity to [the District’s] agent/representative.”
¶ 38 On the issue of notice, plaintiff alleged that, “[g]iven the frequency with which it was
occurring in biology class, as early as August 2022, and that it was occurring in proximity to one
of [the District’s] agents/representatives other than [Faulkner],” the District “knew” prior to March
2023 that Faulkner was “grooming and/or engaging in grooming behavior” toward the minor,
Classmate 1, and Classmate 2. Relatedly, the District “knew, prior to March 2023, that [Faulkner]
would engage in threatening and manipulative behavior toward [the minor] in pursuit of sexual
activity with her.”
¶ 39 Plaintiff has significantly limited the issues on appeal regarding notice. Plaintiff’s opening
brief focuses on Faulkner’s alleged misconduct toward the minor during two weeks in March 2023.
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Despite the trial court’s finding that the allegations of grooming behavior that began in August
2022 were “generic” and insufficient, plaintiff’s opening brief does not defend the sufficiency of
those allegations. The District argues, therefore, that plaintiff has abandoned any reliance on the
grooming allegations. In her reply brief, plaintiff acknowledges the District’s abandonment claim
and accuses the District of “conflat[ing] plaintiff’s various claims into a single one arising from
sexual grooming.” However, instead of defending the sufficiency of the grooming allegations,
plaintiff argues that she “need not establish [the] ‘District’s’ notice of sexual grooming, or even
that grooming occurred, since plaintiff has meritorious claims based on non-sexual, but vile,
harassment, intimidation[,] and threats by [Faulkner], against [the minor], including threats to kill
[the minor] and her family.” We construe this as a voluntary relinquishment—in any event, a
forfeiture—of any reliance on the grooming allegations. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1,
2020) (“Points not argued [in the opening brief] are forfeited and shall not be raised in the reply
brief, in oral argument, or on petition for rehearing.”).
¶ 40 Critically, this abandonment hamstrings plaintiff’s ability to argue that the amended
complaint sufficiently alleged that the District knew of Faulkner’s misconduct. Plaintiff has chosen
to focus her appellate argument on the allegation that, during two weeks in March 2023, Faulkner
“made vile threats to [the minor] consisting of threats to harm and/or kill [the minor] and/or her
family.” Plaintiff alleged that the District “knew, prior to March 2023” (emphasis added) that
Faulkner would engage in misconduct toward the minor. However, the only basis the amended
complaint alleged for the District’s knowledge “prior to March 2023” was the alleged grooming
behavior that began in August 2022. Thus, plaintiff has abandoned the very allegations that might
have established that the District knew, before March 2023, of Faulkner’s capacity for misconduct.
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¶ 41 Even if plaintiff had not abandoned its reliance on the allegation that Faulkner committed
misconduct beginning in August 2022, we would still conclude that count I failed to allege that
the District had notice of Faulkner’s capacity for misconduct. Plaintiff is correct that she only had
to allege that the District had constructive notice, through an agent, of Faulkner’s unfitness. See
Doe v. Dimovski, 336 Ill. App. 3d 292, 297 (2003) (notice properly pleaded where the plaintiff
alleged that she and her mother informed the school board’s agents of the teacher’s inappropriate
conduct and that, thus, the school board had constructive notice). However, plaintiff failed to allege
even constructive notice. She alleged that the misconduct beginning in August 2022 occurred in
“close proximity” to “one of [the District’s] agents/representatives other than [Faulkner].” We
disagree with plaintiff that “this is sufficient evidence of constructive notice, imputed to [the
District].” While it is well established that a principal is deemed to have constructive notice of
facts known to the agent (see Lombardo v. Reliance Elevator Co., 315 Ill. App. 3d 111, 120
(2000)), plaintiff did not allege that the District’s agent knew of Faulkner’s misconduct. Critically,
plaintiff did not allege that the District’s agent actually observed the misconduct. At the hearing
on the motion to dismiss, plaintiff’s counsel appeared to assume that, because Faulkner’s
misconduct occurred “in immediate proximity” (as counsel put it), the District’s agent must have
seen it. However, plaintiff’s complaint did not elaborate on “close proximity” 2 (nor, for that matter,
did plaintiff’s counsel elaborate on “immediate proximity”). We cannot assume that the District’s
agent observed Faulkner’s misconduct, absent a more definite idea of the distance and other
pertinent circumstances. Thus, plaintiff’s attempt to allege that the District had constructive notice
2 Although it appears in common usage, the term “close proximity” has been criticized as “a
redundant and tautologically imprecise measurement.” Commonwealth v. Hanson, 82 A.3d 1023, 1040 (Pa.
2013) (Eakin, J., dissenting).
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of Faulkner’s misconduct depends on vague and conclusory allegations, which are insufficient.
See Mitchell v. Norman James Construction Co., 291 Ill. App. 3d 927, 935 (1997) (conclusory
allegations that the defendant “ ‘knew or should have known’ ” of a condition or an event, without
allegations of specific facts as to how or why the defendant knew or should have known, were
insufficient to state a claim of negligence).
¶ 42 Plaintiff relies heavily on the federal district court’s statement in Doe v. Board of Education
of City of Chicago, 611 F. Supp. 3d 516, 544 (N.D. Ill. 2020), that “[u]nlike Title IX, 3 ***, liability
for willful and wanton misconduct under Illinois common law does not require actual notice of
knowledge.” (Emphasis in original.) That is, under Illinois law, “outright knowledge is not
required; recklessness is enough.” Id. We note first that we are not bound by federal court decisions
interpreting Illinois law. People v. Christian, 2016 IL App (1st) 140030, ¶ 89. However, even
accepting Doe’s interpretation of Illinois law, we cannot see how the case helps the District.
¶ 43 The Doe court referenced the following definition of willful and wanton conduct from
Illinois case law:
“A wilful or wanton injury must have been intentional or the act must have been committed
under circumstances exhibiting a reckless disregard for the safety of others, such as a
failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a
failure to discover the danger through recklessness, or carelessness when it could have been
discovered by ordinary care.” (Emphasis added and internal quotation marks omitted.)
Lynch v. Board of Education of Collinsville Community Unit District No. 10, 82 Ill. 2d 415,
429 (1980).
3 Title IX of the Education Amendments of 1972.(20 U.S.C. § 1681 et seq. (1972)).
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The court construed the disjunctive (“or”) to suggest that liability can rest upon either
(1) “knowledge of impending danger” or (2) the “failure to discover the danger.” (Emphasis
omitted.) Doe, 611 F. Supp. 3d at 544. This distinction does not benefit plaintiff. “The plaintiff is
bound, as [is] the trial court, by the allegations in [the] complaint.” Handzel v. Kane-Miller Corp.,
244 Ill. App. 3d 244, 247 (1993). Plaintiff alleged that the misconduct that began in August 2022
and occurred in the presence of the District’s agent was the exact source of the District’s
knowledge, before March 2023, of Faulkner’s capacity for misconduct. Plaintiff alleged no other
means by which the District could have “discovered” Faulkner’s capacity for misconduct. Plaintiff
is bound by those allegations, which, as explained, are insufficient to establish that the District had
constructive notice of Faulkner’s capacity for misconduct.
¶ 44 Similarly, the other cases cited by plaintiff do not aid her position. Plaintiff cites Ward v.
Community Unit School District No. 220, 243 Ill. App. 3d 968, 974 (1993), for the proposition that
“[a] statement of a defendant’s knowledge is an allegation of ultimate fact and not a conclusion.”
That principle is closely associated with the proposition—which we acknowledged above—that
“the plaintiff is not required to set forth evidence in the complaint” (Marshall, 222 Ill. 2d at 429).
See Board of Education of Kankakee School District No. 111 v. Kankakee Federation of Teachers
Local No. 886, 46 Ill. 2d 439, 446-47 (1970) (“But it is a rule of pleading long established, that a
pleader is not required to set out his evidence. To the contrary, only the ultimate facts to be proved
should be alleged and not the evidentiary facts tending to prove such ultimate facts.”). While the
supreme court has suggested that, at least in some contexts, knowledge is an ultimate fact, not a
conclusion (see Doner v. Phoenix Joint Stock Land Bank of Kansas City, 381 Ill. 106, 115 (1942)),
the court has also affirmed that a mere allegation of knowledge is insufficient (see Simpkins v. CSX
Transportation, Inc., 2012 IL 110662, ¶ 26 (agreeing with the defendant that “[the] plaintiff’s
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complaint [was] insufficient because it relie[d] on the ‘conclusory allegation’ that [the] defendant
‘knew or should have known’ of the dangers of secondhand asbestos exposure”). Moreover, the
court has consistently affirmed that “the plaintiff must allege facts sufficient to bring a claim within
a legally recognized cause of action [citation], not simply conclusions.” Marshall, 222 Ill. 2d at
429-30. As noted, plaintiff chose to base her claim of willful and wanton conduct on the District’s
“knowledge of impending danger,” not simply its “failure to discover the danger.” (Emphasis
added.) Lynch, 82 Ill. 2d at 429. Thus, plaintiff’s theory was not that the District failed to
“discover” Faulkner’s unfitness when it should have, but that it became (constructively) aware of
his unfitness—meaning, ultimately, that the District’s agent did not fail to “discover” Faulkner’s
misconduct, but that the agent actually saw it. But, as explained, the allegation that Faulkner’s
misconduct occurred in unspecified “close proximity” to the District’s agent did not establish that
the agent observed the misconduct.
¶ 45 Plaintiff also implies that the allegations of knowledge in this case were comparable to
those found sufficient in Dimovski. We disagree. In Dimovski, the plaintiff sued the school district
where she had been a high school student for, inter alia, willful and wanton conduct. Dimovski,
336 Ill. App. 3d at 294. The plaintiff alleged that, from November 1998 through May 1999, while
the plaintiff was under 18, a teacher at the high school engaged in an inappropriate sexual
relationship with the plaintiff. Id. As in this case, the plaintiff in Dimovski alleged that the school
district had prior notice of the teacher’s capacity for misconduct yet did not take corrective action.
Id. at 294-95. Unlike in this case, however, the plaintiff in Dimovski alleged that, before November
1998 (i.e., before the teacher’s improper conduct toward the plaintiff), a fellow student and her
mother informed two “agent[s], servant[s], and employee[s]” of the board that the teacher had
made inappropriate advances toward that fellow student. Id. at 294.
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¶ 46 As potential bases for a theory of constructive notice, an allegation that a teacher’s
misconduct occurred in (undefined) “close proximity” to a school district’s agent is not comparable
to an allegation that the victim of the misconduct directly informed the agent of the misconduct.
Dimovski does not support plaintiff.
¶ 47 In sum, because count I did not state a claim of willful and wanton conduct, the trial court
was correct to dismiss that count under section 2-615 of the Code.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 50 Affirmed.
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