No. 3--96--0485
_________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
MARIA GRANT, as Administrator ) Appeal from the Circuit Court
of the Estate of JASON A. ) for the 12th Judicial Circuit,
GRANT, Deceased, ) Will County, Illinois
)
Plaintiff-Appellant, )
v. ) No. 95--L--13572
BOARD OF TRUSTEES OF VALLEY )
VIEW SCHOOL DISTRICT NO. )
365-U and JEAN OWEN, ) Honorable
) Herman S. Haase
Defendants-Appellees. ) Judge, Presiding
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JUSTICE HOMER delivered the Opinion of the court:
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Plaintiff Maria Grant, as administrator of the estate of her
deceased son, Jason Grant, filed a wrongful death action against
the Board of Trustees of Valley View School District No. 365-U and
Jean Owen, a school counselor. The trial court granted the
defendants' motion to dismiss plaintiff's three-count complaint and
the plaintiff appeals. We affirm.
FACTS
According to the complaint, on October 27, 1994, Jason, a
senior at Romeoville High School, told other students that he was
going to kill himself. He also wrote suicide notes. Several
students reported Jason's intentions to Jean Owen, a school
counselor. Owen questioned Jason but took no action other than
calling his mother, Maria Grant. Owen advised Maria that she
should take Jason to a hospital for drug overdose treatment, but
she did not discuss Jason's suicide threats. On the way to the
hospital, Jason jumped from the car. Later that day he jumped off
a highway overpass and killed himself.
ANALYSIS
In count I of her complaint, Maria alleges that defendants
owed Jason a special duty to exercise reasonable care for his
safety which they breached by failing to call an ambulance or other
medical personnel, for failing to inform Maria of Jason's
intentions, and for failing to implement a suicide prevention
program. In count II, with the same factual allegations, plaintiff
pleads defendants' breach of an ordinary negligence standard, and
in count III, Maria alleges that defendants knew or should have
known that great caution should be used in dealing with teenagers
with suicidal tendencies and that their failure to take reasonable
precautions or to notify Maria was intentional and constituted
wilful and wanton conduct.
The defendants responded with a motion to dismiss, pursuant to
section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615
(West 1994)), arguing that they were immune from liability and
further that the complaint failed to state a cause of action for
wilful and wanton conduct. The trial court agreed with the
defendants and dismissed the complaint with prejudice.
When reviewing a trial court's order granting a motion to
dismiss, a reviewing court must accept as true all well-pleaded
facts. Dennis E. v. O'Malley, 256 Ill. App. 3d 334, 628 N.E.2d 362
(1993). On appeal from the dismissal of a complaint, this court
applies the de novo standard of review. Toombs v. City of
Champaign, 245 Ill. App. 3d 580, 615 N.E.2d 50 (1993).
The first issue is whether count I of the complaint states a
cause of action for breach of a special duty. The "special duty"
doctrine was established as an exception to the common law
principle that municipalities are generally not liable in tort to
members of the general public for failure to enforce local
ordinances or for their negligent exercise of municipal authority,
such as in providing police and fire protection. The special duty
doctrine has been extended by Illinois courts as an exception,
also, to the immunities provided under the Local Government and
Governmental Employees Tort Immunity Act, 745 ILCS 10/1--101 et.
seq. (West 1994) ( Tort Immunity Act). See Burdinie v. Village of
Glendale Heights, 139 Ill. 2d 501, 565 N.E.2d 654 (1990), and Leone
v. City of Chicago, 156 Ill. 2d 33, 619 N.E.2d 119 (1993). The
special duty can arise when the municipality develops a
relationship to a specific individual, as opposed to the public at
large.
Because we hold below that the Tort Immunity Act is
inapplicable to the allegations of the complaint, consideration of
the special duty exception becomes moot. Moreover, even if the
case were to be decided under the provisions of the Tort Immunity
Act, the special duty theory advanced by plaintiff in count I would
fail for two additional reasons. First, plaintiff has cited no
Illinois case which would extend the special duty exception to
schools or school employees. In addition, in order for the special
duty exception to apply it must be established, inter alia, that
the injury occurred while the plaintiff was under the direct and
immediate control of employees or agents of the municipality. Bell
v. Village of Midlothian, 90 Ill. App. 3d 967, 970, 414 N.E.2d 104,
106 (1980); Fryman v. JMK/Skewer, Inc., 137 Ill. App. 3d 611, 617,
484 N.E.2d 909, 912 (1985).
The instant complaint alleges that Jason left school with his
mother. At the time of his death, he was no longer under the
direct and immediate control of the defendants. Therefore, the
special duty doctrine would not apply.
We next address the allegation concerning the school
district's duty to implement a suicide prevention program.
While section 10--22.39 of the Illinois School Code, 105 ILCS
5/10--22.39 (West 1994) empowers school boards to establish in-
service training programs for teachers and specifies that such
programs shall include a topic on suicide intervention, that
section does not mandate exercise of that power, and the failure of
a school district to develop such teacher training or to develop an
adequate training program does not give rise to a cause of action
against the district.
Next, in evaluating the sufficiency of count II, the ordinary
negligence count, we must determine the standard of care owed by
the defendants to the decedent and resolve the issue as to the
nature and extent of any immunity from liability to which the
defendants are entitled.
The Tort Immunity Act provides in relevant part as follows:
"Section 6--105. Neither a local public entity nor a
public employee acting within the scope of his employment is
liable for injury caused by the failure to make a physical
or mental examination, or to make an adequate physical or
mental examination of any person for the purpose of
determining whether such person has a disease or physical or
mental condition that would constitute a hazard to the
health or safety of himself or others." 745 ILCS 10/6--105
(West 1994).
"Section 6--106. (a) Neither a local public entity nor a
liable for injury resulting from diagnosing or failing to
diagnose that a person is afflicted with mental or physical
illness or addiction or from failing to prescribe for mental
or physical illness or addiction." 745 ILCS 10/6--106(a)
These immunities are extended to school districts and school
employees by the provisions of section 1--206 of the Tort Immunity
Act.
In this case, the complaint does not seek to impose liability
for the defendants' failure to examine Jason or diagnose his
condition. Rather, the complaint alleges that the defendants with
knowledge of Jason's intent to commit suicide, failed to call for
medical assistance, failed to inform Maria of her son's intention,
and failed to implement a suicide prevention program. Therefore,
the defendants are not immunized from liability by the provisions
of the Tort Immunity Act.
Rather, we find that the defendants are immune from liability
for ordinary negligence under the doctrine of in loco parentis.
Section 24--24 of the Illinois School Code extends in loco
parentis status to teachers and other certified educational
employees for matters relating to the conduct of the schools and
school children. 105 ILCS 5/24--24 (West 1994). This status
confers immunity from liability for negligence arising out of such
matters and requires the plaintiff to prove wilful and wanton
misconduct in order to recover. Kobylanski v. Chicago Board of
Education, 63 Ill. 2d 165, 347 N.E.2d 705 (1976).
Maria argues, however, that Kobylanski is not controlling in
that the defendant's negligent conduct was not connected with the
school program. She claims that O'Brien v. Township High School
District 214, 83 Ill. 2d 462, 415 N.E.2d 1015 (1980) supports her
argument.
In O'Brien, the plaintiff sued the defendant school district
for injuries that occurred off the school property during an
activity unrelated to school. The complaint alleged that teachers
of the school authorized an untrained individual to render medical
care to the plaintiff. The court held that the activities were not
related to the conduct of the school program and, thus, immunity
did not apply.
The instant case is distinguishable from O'Brien. Plaintiff's
complaint alleged that the defendants were negligent for failing to
take action to prevent Jason's suicide based on Jason's statements
and his conduct while at school during regular school activities.
All of these allegations clearly related to the official conduct of
the school program. Accordingly, O'Brien is inapposite and the
trial court properly dismissed count II of Maria's complaint.
The final issue is whether count III of Maria's complaint
states a cause of action for wilful and wanton conduct.
Wilful and wanton conduct is conduct which is either
"intentional or done with a conscious disregard or indifference for
the consequences when the known safety of other persons is
involved." Stehl v. Brown's Sporting Goods, 236 Ill. App. 3d 976,
979, 603 N.E.2d 48, 50-51 (1992). The plaintiff has the burden to
demonstrate that the defendant had actual or constructive knowledge
that such conduct posed a high probability of serious physical harm
to others. Albers v. Community Consolidated No. 204 School, 155
Ill. App. 3d 1083, 508 N.E.2d 1252 (1987).
The suicide death of a teenager is tragic. School counselors
and other school personnel should take every suicide threat
seriously and take every precaution to protect the child.
If defendant Owen had failed to take any action upon learning
of Jason's statements, her inaction could constitute wilful and
wanton conduct. However, the complaint admits that Owen contacted
Maria and advised her to take Jason to the hospital, albeit for a
drug overdose. While the nondisclosure of Jason's suicide threats,
if proven, could well constitute negligence, the plaintiff has
failed to allege sufficient facts that would support a finding that
either Owen or any other school official acted with conscious
disregard or indifference for Jason's safety or had knowledge that
their conduct posed a high probability of serious physical harm to
Jason.
Plaintiff counters that the very fact of nondisclosure is
evidence of an intentional act or omission by defendants.
A section 2--615 motion admits all well-pleaded facts as true,
but not conclusions of law or factual conclusions which are
unsupported by allegations of specific facts. Lagen v. Balcor
Company, 274 Ill. App. 3d 11, 653 N.E.2d 968 (1995).
Furthermore, in this instance there appear to be no set of
facts, on the basis of the record or representations of plaintiff's
counsel, that could be proven which would entitle the plaintiff to
relief. Therefore, the deficiency in the pleadings cannot be
addressed by simply allowing plaintiff to amend her complaint.
Therefore, the trial court's dismissal of count III of the
complaint with prejudice was appropriate.
For the foregoing reasons, the judgment of the circuit court
of Will County is affirmed.
Affirmed.
LYTTON, P.J., concurs.
BRESLIN, J., dissents [dissent to follow].