Hascall v. Williams , 2013 IL App (4th) 121131 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Hascall v. Williams, 2013 IL App (4th) 121131
Appellate Court VILMA HASCALL, Individually; and C.H., a Minor, Through Her
Caption Mother and Next Friend, Vilma Hascall, Plaintiffs-Appellants, v.
PRESTON L. WILLIAMS, JR., SANDY COOPER, and URBANA
SCHOOL DISTRICT NO. 116 BOARD OF EDUCATION, Defendants-
Appellees.
District & No. Fourth District
Docket No. 4-12-1131
Filed September 18, 2013
Held Section 2-201 of the Tort Immunity Act provided defendant school
(Note: This syllabus district and members of its staff with immunity from liability for
constitutes no part of plaintiffs’ allegations that defendants failed to properly respond to
the opinion of the court plaintiff student, who was bullied by her classmates, and that immunity
but has been prepared was not subject to the willful and wanton conduct exception in section 2-
by the Reporter of 202 of the Act.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Champaign County, No. 12-L-16; the
Review Hon. Michael Q. Jones, Judge, presiding.
Judgment Affirmed.
Counsel on Gerald W. Smith (argued), of Smith Law Firm, P.C., of Mahomet, for
Appeal appellants.
Dennis L.Weedman and Belinda Becker (argued), both of Robbins
Schwartz Nicholas Lifton & Taylor, of Collinsville, for appellees.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Steigmann and Justice Knecht concurred in the
judgment and opinion.
OPINION
¶1 In July 2012, plaintiffs, Vilma Hascall (Hascall), individually, and C.H., a minor,
through her mother and next friend, Vilma Hascall, filed an 11-count second amended
complaint against defendants, Preston L. Williams, Jr. (Williams), Sandy Cooper
(Cooper), and the Urbana School District No. 116 Board of Education (Board). Plaintiffs
alleged C.H. was bullied by classmates and defendants failed to appropriately respond.
Defendants filed a motion to dismiss and the circuit court dismissed the complaint with
prejudice. We affirm.
¶2 I. BACKGROUND
¶3 On July 2, 2012, plaintiffs filed an 11-count second amended complaint against
defendants for alleged violations of the Illinois School Code (School Code) (105 ILCS
5/1-1 to 36-1 (West 2010)) (counts I, II, XI); fraud (counts III, IV, V); intentional
infliction of emotional distress (counts VI, VII, VIII); and retaliation (count X). Plaintiffs
voluntarily dismissed count IX.
¶4 According to the complaint, C.H. was a fourth-grade student attending Thomas Paine
Elementary School (Thomas Paine). On August 18, 2011, Hascall reported to Cooper, the
principal of Thomas Paine, a “bullying situation” involving C.H. and classmates M.J.,
I.H., and A.M. According to Hascall, M.J., I.H., and A.M. had bullied C.H. since
kindergarten. Hascall requested that C.H. be reassigned to a different fourth-grade
classroom. In a letter dated August 18, 2011, Cooper assured Hascall that “we take
reports of bullying very seriously.” Cooper stated she would “address the situation with
the girls and notify the parents of the conversation.” Cooper attached to the letter “the
school district policy.” C.H. was not reassigned to a different fourth-grade classroom.
¶5 On August 20, 2011, Hascall requested a meeting with school district superintendent
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Williams, Cooper, C.H.’s classroom teacher, “the police,” and the parents of M.J., I.H.,
and A.M. The following day, Hascall met with Williams and Cooper, who assured
Hascall that they would contact the parents (“or words to that effect”) of M.J., I.H., and
A.M.
¶6 On October 14, 2011, M.J. and I.H. verbally harassed C.H. when she withdrew from a
game of tag. M.J., I.H., and A.M. followed C.H. into a school restroom, blocking the exit
and continuing to “harass, intimidate, and threaten C.H.” C.H. reported the incident to
Hascall, who contacted the police. The following day, Cooper telephoned Hascall and
advised she would contact the girls’ parents and “take appropriate disciplinary action.”
¶7 On November 21, 2011, I.H. approached C.H. in the classroom, slapped a book C.H.
was holding, and “threatened C.H.” M.J., I.H., and A.M. again followed C.H. into the
school restroom. C.H. entered a stall and the girls kicked open the door of the stall,
injuring C.H. The girls “threatened C.H. by stating, ‘I’m going to kill you’ or similar
words.” C.H. reported the incident to Hascall, who contacted the police.
¶8 On November 22, 2011, an investigating officer spoke to the parents of M.J., I.H., and
A.M. The parents reported never having been told their child had bullied another student
prior to November 22, 2011. Cooper allegedly told the investigating officer that she had
no knowledge of C.H. being bullied prior to October 2011.
¶9 On November 28, 2011, Hascall again requested a meeting with Williams, Cooper,
C.H.’s classroom teacher, “the police,” and the parents of M.J., I.H., and A.M. Williams
denied Hascall’s request, stating, “[w]e will handle this situation.” On December 6, 2011,
Hascall addressed the Board regarding bullying at Thomas Paine.
¶ 10 C.H. alleged these incidents led to (1) difficulty sleeping, (2) nightmares, (3) physical
injury, (4) physical illness, (5) stomachaches, (6) headaches, (7) worsening asthma, (8)
mental anguish, and (9) emotional distress. Hascall alleged these incidents led to (1)
severe anxiety, (2) mental anguish, and (3) “significant emotional distress over the health
and safety of C.H. while at school” and the inaction by school personnel.
¶ 11 On October 4, 2012, defendants filed a combined motion to dismiss plaintiffs’
complaint under sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735
ILCS 5/2-615, 2-619 (West 2010)). Under section 2-615, defendants argued the second
amended complaint failed to state a cause of action upon which relief could be granted.
Under section 2-619(a)(9), defendants asserted they were immune from liability under
sections 2-201 and 2-109 of the Local Governmental and Governmental Employees Tort
Immunity Act (Tort Immunity Act) (745 ILCS 10/2-201, 2-109 (West 2010)). Defendants
attached affidavits of Williams and Cooper to a memorandum in support of their section
2-619 motion to dismiss. Williams averred, in part, as follows:
“3. As Superintendent I am responsible for determining school district policy in many
areas, including that in the areas of student relations and student discipline; and I exercise
discretion in the determination and administration of such policies.
***
6. Board Policy 7:180 defines prohibited bullying activities and requires the
development of a program to implement the policy. I have determined that each
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attendance center principal shall be responsible for implementing this policy at the
building level so grade level appropriate programs can be more effectively
developed. ***
7. Generally, when an allegation of student bullying surfaces at my level, I must: 1)
assess the credibility of the allegations; 2) assess the severity and frequency of the
actions; 3) assess the nature of the actions, i.e., physical and/or verbal; 4) assess the age,
grade level and maturity level of the students involved; 5) assess the disciplinary history
of the students involved; 6) assess which building staff to appropriately involve in the
process; 7) assess whether to monitor the situation as needed; 8) take appropriate
disciplinary action against students when necessary. I followed this very process during
the 2011-2012 school year when allegations concerning C.H. surfaced.”
Cooper averred, in part, as follows:
“3. As Principal I am responsible for determining school district policy in many areas,
including that in the areas of student relations and student discipline; and I exercise
discretion in the determination and administration of such policies.
4. Among my duties as Principal, I am responsible for the overall operation of
Thomas Paine School consistent with the mission and goals of the Urbana School
District. The scope of those duties includes instructional programs that span traditional
academics, fine arts, and social emotional learning. Examples of other significant duties
include overseeing building maintenance, program evaluation, personnel management,
office operations, and emergency procedures. My duties as Principal also entail that I
respond to allegations of student bullying and administer discipline to students within my
attendance center.
***
6. Board Policy 7:180 defines prohibited bullying activities and requires the
development of a program to implement the policy. In Urbana School District, each
attendance center principal is responsible for implementing a bullying prevention
program and updating it annually. ***
***
8. Generally, when an allegation of student bullying surfaces at my level, I must: 1)
assess the credibility of the allegations; 2) assess the severity and frequency of the
actions; 3) assess the nature of the actions, i.e., physical and/or verbal; 4) assess the age,
grade level and maturity level of the students involved; 5) assess the disciplinary history
of the students involved; 6) assess which building staff to appropriately involve in the
process; 7) develop a specific plan for addressing the situation; 8) continue to monitor
the effectiveness of the plan and make necessary adjustments to the plan as needed; 9)
take appropriate disciplinary action against students when necessary; and 10) assess how
my decision may affect the students. I followed this very process during the 2011-2012
school year when allegations concerning C.H. surfaced.”
¶ 12 Following a hearing in November 2012, the trial court granted defendants’ motion to
dismiss plaintiffs’ second amended complaint with prejudice.
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¶ 13 This appeal followed.
¶ 14 II. ANALYSIS
¶ 15 Plaintiffs argue the trial court erred in granting defendants’ motion to dismiss plaintiffs’
second amended complaint with prejudice. We disagree.
¶ 16 Section 2-619(a)(9) of the Code provides a defendant may file a motion for dismissal of
the action on the grounds “the claim asserted against defendant is barred by other affirmative
matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West
2010). Section 2-619(a)’s purpose is to provide litigants with a method of disposing of issues
of law and easily proved issues of fact relating to the affirmative matter early in the litigation.
Van Meter v. Darien Park District, 207 Ill. 2d 359, 367, 799 N.E.2d 273, 278 (2003).
¶ 17 A motion for involuntary dismissal under section 2-619(a)(9) of the Code admits the
legal sufficiency of the complaint, admits all well-pleaded facts and all reasonable inferences
therefrom, and asserts an affirmative matter outside the complaint bars or defeats the cause
of action. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361, 919 N.E.2d 926, 931-32
(2009); Smith v. Waukegan Park District, 231 Ill. 2d 111, 120, 896 N.E.2d 232, 238 (2008);
Snyder v. Heidelberger, 2011 IL 111052, ¶ 8, 953 N.E.2d 415. In a section 2-619(a) motion,
the movant is essentially saying “ ‘Yes, the complaint was legally sufficient, but an
affirmative matter exists that defeats the claim.’ ” Winters v. Wangler, 386 Ill. App. 3d 788,
792, 898 N.E.2d 776, 779 (2008). When ruling on the section 2-619(a)(9) motion, the court
construes the pleadings “in the light most favorable to the nonmoving party” (Sandholm v.
Kuecker, 2012 IL 111443, ¶ 55, 962 N.E.2d 418) and should only grant the motion “if the
plaintiff can prove no set of facts that would support a cause of action” (Snyder, 2011 IL
111052, ¶ 8, 953 N.E.2d 415). A section 2-619(a)(9) motion dismissal is reviewed de novo.
Kean, 235 Ill. 2d at 361, 919 N.E.2d at 932.
¶ 18 Plaintiffs argue that the trial court erred in finding defendants immune from liability
under sections 2-201 and 2-109 the Tort Immunity Act (745 ILCS 10/2-201, 2-109 (West
2010)).
¶ 19 The Tort Immunity Act adopted the general principle “ ‘that local governmental units are
liable in tort but limited this [liability] with an extensive list of immunities based on specific
government functions.’ ” Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 43, 697 N.E.2d
699, 707 (1998) (quoting Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 506, 565
N.E.2d 654, 658 (1990)). The Tort Immunity Act is in derogation of the common law and,
therefore, must be strictly construed against the public entities involved. Aikens v. Morris,
145 Ill. 2d 273, 278, 583 N.E.2d 487, 490 (1991). “Unless an immunity provision applies,
municipalities are liable in tort to the same extent as private parties.” Van Meter, 207 Ill. 2d
at 368-69, 799 N.E.2d at 273. To bar plaintiffs’ recovery, governmental entities bear the
burden of properly raising and proving that they are immune under the Tort Immunity Act.
Van Meter, 207 Ill. 2d at 368-69, 799 N.E.2d at 279.
¶ 20 The Tort Immunity Act grants only immunities and defenses; it does not create duties.
Rather, the Tort Immunity Act merely codifies existing common-law duties, to which the
delineated immunities apply. Arteman v. Clinton Community Unit School District No. 15,
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198 Ill. 2d 475, 479, 763 N.E.2d 756, 760 (2002); Village of Bloomingdale v. CDG
Enterprises, Inc., 196 Ill. 2d 484, 490, 752 N.E.2d 1090, 1096 (2001). Therefore, whether
a local public entity owed a duty of care and whether that entity enjoyed immunity are
separate issues. Once a court determines that a duty exists, it then addresses whether the Tort
Immunity Act applies. Arteman, 198 Ill. 2d at 480, 763 N.E.2d at 760; Village of
Bloomingdale, 196 Ill. 2d at 490, 752 N.E.2d at 1096.
¶ 21 Section 2-201 of the Tort Immunity Act provides:
“Except as otherwise provided by Statute, a public employee serving in a position
involving the determination of policy or the exercise of discretion is not liable for an
injury resulting from his act or omission in determining policy when acting in the
exercise of such discretion even though abused.” 745 ILCS 10/2-201 (West 2010).
¶ 22 In section 2-201, the legislature immunized “liability for both negligence and willful and
wanton misconduct.” In re Chicago Flood Litigation, 176 Ill. 2d 179, 196, 680 N.E.2d 265,
273 (1997). Section 2-109 of the statute provides that “[a] local public entity is not liable for
an injury resulting from an act or omission of its employee where the employee is not liable.”
745 ILCS 10/2-109 (West 2010).
¶ 23 Our supreme court has held that the Tort Immunity Act sets up a two-part test to
determine which employees may be granted immunity under section 2-201. First, an
employee may qualify for immunity “if he holds either a position involving the determination
of policy or a position involving the exercise of discretion.” (Emphases in original.) Harinek
v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341, 692 N.E.2d 1177, 1181
(1998). Second, an employee who satisfies the first prong of the test must also have engaged
in both the determination of policy and the exercise of discretion when performing the act
or omission from which the plaintiff’s injury resulted. Harinek, 181 Ill. 2d at 341, 692
N.E.2d at 1181. Plaintiffs admit defendants hold positions that involve the determination of
policy or the exercise of discretion. Thus, we focus on the second prong of the test.
¶ 24 Plaintiffs argue that defendants’ duties were ministerial acts to which immunity did not
attach. Specifically, plaintiffs claim that defendants were mandated by Board policy to act
in response to the bullying incidents, without regard to the exercise of discretion.
¶ 25 We reject plaintiffs’ claim. The acts or omissions of which plaintiffs complain
constituted discretionary acts and policy determinations, not ministerial acts. Public policy
decisions are “those that require the governmental entity or employee to balance competing
interests and to make a judgment call as to what solutions will best serve each of those
interests.” Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466,
472, 758 N.E.2d 848, 852 (2001); see also Albers v. Breen, 346 Ill. App. 3d 799, 808, 806
N.E.2d 667, 675 (2004) (“A school principal dealing with a disciplinary matter must balance
competing interests–the confidentiality of his information source, the appropriate level of
punishment, the concerns of all the children’s parents, the impact of his decision on the
student body generally–and make a judgment as to what balance to strike among them.”).
Plaintiffs do not argue that defendants were not in a position involving the determination of
policy but only that defendants’ acts or omissions were ministerial, and not discretionary.
“[D]iscretionary acts are those which are unique to a particular public office, while
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ministerial acts are those which a person performs on a given state of facts in a prescribed
manner, in obedience to the mandate of legal authority, and without reference to the official’s
discretion as to the propriety of the act.” Snyder v. Curran Township, 167 Ill. 2d 466, 474,
657 N.E.2d 988, 993 (1995).
¶ 26 Section 27-23.7(d) of the School Code requires that each school district “create and
maintain a policy on bullying.” (Emphasis added.) 105 ILCS 5/27-23.7(d) (West 2010). In
this case, the school district created Board Policy 7:180, “Preventing Bullying, Intimidation,
and Harassment.” The policy on bullying provides that the superintendent or a designee shall
develop and maintain a program that fully implements and enforces the following Board
policies: (1) “Harassment of Students Prohibited” (7:20), (2) “Student Discipline” (7:190),
(3) “Restriction on Publications” (7:130), and (4) “Access to Electronic Networks” (6:235).
“Full implementation” of the policy on bullying includes (1) “conducting a prompt and
thorough investigation of alleged incidents of bullying, intimidation, harassing behavior, or
similar conduct” and (2) “providing each student who violates one or more of these policies
with appropriate consequences and remedial action.” Williams stated in his affidavit that he
designated to each attendance center principal the responsibility for implementing the Board
policy on bullying at the building level.
¶ 27 Plaintiffs further reference an additional paragraph found in the policy, which states:
“The Superintendent or designee shall develop and maintain a program that ***
[a]ctively involves students’ parents/guardians in the remediation of the behavior(s) of
concern. This includes ensuring that all parents/guardians are notified, as required by
State law, whenever their child engages in aggressive behavior.”
¶ 28 The Board policy assigns responsibility to the superintendent or his designee for the
development and maintenance of a program that prevents students from engaging in bullying,
intimidation, or harassment. Although the policy imposes general duties on the
superintendent, or his designee, in the development and maintenance of a program, the policy
does not mandate a particular response to a specific set of circumstances. The determination
of whether bullying has occurred and the appropriate consequences and remedial action are
discretionary acts under these facts. We find the acts or omissions of which plaintiffs
complain constituted discretionary acts.
¶ 29 This court has previously addressed whether a school principal’s actions concerning a
bullied student were discretionary. In Albers, this court stated:
“Certainly the way that a principal handles an instance of bullying in his school falls
within the definition; any student who has been sent to the principal’s office could attest
that he has broad discretion in how to handle such situations. Plaintiff [mother]
recognized the uniqueness of the principal’s function when her first response to [her
son’s] bullying problem was to report it to [the principal]. [The social worker], too,
reported the allegations to [the principal] when she decided that something needed to be
done to protect [the student].” Albers, 346 Ill. App. 3d at 808-09, 806 N.E.2d at 675.
See also Harrison, 197 Ill. 2d at 474, 758 N.E.2d at 852 (principal’s refusal to let student
leave school early was a discretionary act). We conclude that the acts and omissions of which
plaintiffs complain constituted discretionary acts and policy determinations and, therefore,
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defendants are immune under sections 2-201 and 2-109 of the Tort Immunity Act (745 ILCS
10/2-201, 2-109 (West 2010)).
¶ 30 Plaintiffs next argue that section 2-202 of the Tort Immunity Act provides a willful and
wanton exception to the immunities otherwise provided by section 2-201 of the Tort
Immunity Act. Section 2-202 states that “[a] public employee is not liable for his act or
omission in the execution or enforcement of any law unless such act or omission constitutes
willful and wanton conduct.” 745 ILCS 10/2-202 (West 2010). “The determination of
whether an officer is executing or enforcing a law is a factual one which must be made in
light of the circumstances in each case.” Aikens, 145 Ill. 2d at 286, 583 N.E.2d at 493.
Applying the facts of this case as alleged in plaintiffs’ second amended complaint, it is clear
defendants were not executing or enforcing any law. Plaintiffs allege that C.H. was bullied
by classmates and defendants failed to comply with the Board’s policy on bullying. Plaintiffs
have not alleged or shown how defendants’ actions or omissions can be considered to be
either the execution or enforcement of a law.
¶ 31 Moreover, no such exception for willful and wanton misconduct is stated in the text of
section 2-201 (745 ILCS 10/2-201 (West 2010)). Our supreme court has stated that when the
legislature intends to except willful and wanton misconduct from the provisions of an
immunity statute, it has “ ‘ “unambiguously done so.” ’ ” DeSmet v. County of Rock Island,
219 Ill. 2d 497, 514, 848 N.E.2d 1030, 1041 (2006) (quoting Village of Bloomingdale, 196
Ill. 2d at 491, 752 N.E.2d at 1096, quoting Barnett v. Zion Park District, 171 Ill. 2d 378, 391,
665 N.E.2d 808, 814 (1996)); see also Chicago Flood Litigation, 176 Ill. 2d at 196, 680
N.E.2d at 273 (where the legislature omitted an immunity exception for willful and wanton
conduct from the plain language of section 2-201 of the Tort Immunity Act, the legislature
must have intended to immunize liability for both negligence and willful and wanton
misconduct). Accordingly, we reject plaintiffs’ argument that section 2-202’s immunity
exception for willful and wanton misconduct should be applied to narrow the scope of
defendants’ immunity under section 2-201, since the plain language of section 2-201 contains
no such exception.
¶ 32 Plaintiffs reliance on Murray v. Chicago Youth Center, 224 Ill. 2d 213, 864 N.E.2d 176
(2007), is misplaced. In Murray, the supreme court explained that a statute that is particular
and relates to only one subject will prevail over one that applies to cases generally. Murray,
224 Ill. 2d at 233, 864 N.E.2d at 188. In Murray, the 13-year-old plaintiff was rendered a
quadriplegic from a trampoline accident during an extracurricular lunch period tumbling
class. Murray, 224 Ill. 2d at 217, 864 N.E.2d at 179. The supreme court determined that
section 3-109 of the Tort Immunity Act (745 ILCS 10/3-109 (West 1992)), which specifically
covered immunity for a person’s voluntary participation in hazardous recreational
activities–including trampolining–prevailed over sections 2-201 (745 ILCS 10/2-201 (West
1992)) (immunity for injuries resulting from act or omission in determining policy) and 3-
108(a) (745 ILCS 10/3-108(a) (West 1992)) (immunity for injuries caused by failure to
supervise an activity on or the use of any public property). Thus, the plaintiffs were entitled
to rely on section 3-109’s exception for willful and wanton misconduct, and the defendants
could not rely on the more complete immunity provided by sections 2-201 and 3-108(a).
Murray, 224 Ill. 2d at 234, 864 N.E.2d at 188-89.
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¶ 33 Here, there is no provision in the Tort Immunity Act directly addressing the situation
giving rise to plaintiffs’ injuries. Plaintiffs were injured when C.H. was bullied by classmates
and defendants failed to appropriately respond. Unlike trampolining, bullying is not
specifically listed in any section of the Tort Immunity Act. Thus, in the case at bar,
defendants’ immunity from liability is not subject to the willful and wanton conduct
exception found in section 2-202 of the Tort Immunity Act.
¶ 34 Plaintiffs also argue that section 24-24 of the School Code (105 ILCS 5/24-24 (West
2010)), and not the Tort Immunity Act, governs the extent of the immunity to which
defendants are entitled. Section 24-24 provides that teachers or other educational employees
enjoy the same immunity from suits by their students as a parent or guardian enjoys against
suits by a child. 105 ILCS 5/24-24 (West 2010). Thus, plaintiffs argue, based on the School
Code, educators are not liable to their students for ordinary negligent conduct but are liable
for willful and wanton conduct. Kobylanski v. Chicago Board of Education, 63 Ill. 2d 165,
173, 347 N.E.2d 705, 709 (1976). Plaintiffs argue that section 24-24 of the School Code
prevails over section 2-201 of the Tort Immunity Act and, consequently, defendants here are
not immune from a claim alleging willful and wanton misconduct. We disagree.
¶ 35 We rely upon the reasoning of our supreme court in Henrich v. Libertyville High School,
186 Ill. 2d 381, 712 N.E.2d 298 (1999). In Henrich, a high school student had spine fusion
surgery. The student’s physician advised that he was permanently restricted from any contact
sports in physical education class. The high school knew of this restriction, but less than a
year after the surgery, a substitute instructor required the student to participate in a water
basketball game during physical education class. The student was severely and permanently
injured. He later filed a complaint alleging the school district was willful and wanton.
Henrich, 186 Ill. 2d at 384-85, 712 N.E.2d at 300-01. The district filed a motion to dismiss,
arguing that it enjoyed absolute immunity under sections 3-108(a) and 3-109 of the Tort
Immunity Act (745 ILCS 10/3-108(a), 3-109 (West 2002)). The student responded that the
school district had only limited immunity under sections 24-24 and 34-84a of the School
Code (105 ILCS 5/24-24, 34-84a (West 2002)). Henrich, 186 Ill. 2d at 385, 712 N.E.2d at
301.
¶ 36 The supreme court concluded that the Tort Immunity Act shielded the school district
from liability. Henrich, 186 Ill. 2d at 395, 712 N.E.2d at 306. Though the student argued that
the specific provisions of the School Code prevailed over the general provisions of the Tort
Immunity Act, that distinction was not dispositive: “[T]he plain language of section 3-108(a)
of the Tort Immunity Act immunizes a local public entity’s failure to supervise an activity
on or the use of any public property ***. The legislature could not have made its intent any
plainer.” Henrich, 186 Ill. 2d at 391, 712 N.E.2d at 304. Further, construing the statutes
together, the court stated that each stood “in its own sphere.” Henrich, 186 Ill. 2d at 392, 712
N.E.2d at 304. The School Code immunity provision applies to both private and public
schools; the Tort Immunity Act immunity provision applies only to public schools. Henrich,
186 Ill. 2d at 392, 712 N.E.2d at 304. The court reasoned that the legislature, therefore,
intended to grant public schools and their employees greater protection than private schools
and their employees. Henrich, 186 Ill. 2d at 392, 712 N.E.2d at 304. See Arteman, 198 Ill.
2d at 487, 763 N.E.2d at 764 (holding that sections 24-24 and 34-84a of the School Code
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provided no immunity from the plaintiff’s allegations that the school district failed to provide
a student with safety equipment during physical education class, but that section 2-201 of the
Tort Immunity Act did). Pursuant to Henrich, we conclude that section 2-201 of the Tort
Immunity Act provides immunity to defendants for what is alleged here to be willful and
wanton conduct.
¶ 37 Plaintiffs next contend that the Tort Immunity Act does not apply because their claims
fall within a special duty exception. Because we find that the Tort Immunity Act fully
immunizes defendants from plaintiff’s allegations, a discussion of the special duty exception
is unnecessary. See Zimmerman, 183 Ill. 2d at 46, 697 N.E.2d at 708 (“the special duty
doctrine cannot, and was not intended to, contravene the immunities provided to
governmental entities under the Tort Immunity Act”); see also Harinek, 181 Ill. 2d at 347,
692 N.E.2d at 1183-84 (“the special duty doctrine may not operate to impose liability upon
a public entity after a court has found that entity immune from liability under the Tort
Immunity Act”).
¶ 38 While we are sympathetic to plaintiffs’ claims and acknowledge the seeming harshness
of the result, we are obligated to follow our supreme court’s interpretation of the Tort
Immunity Act and find defendants are immune to liability for the alleged acts or omissions.
Because we resolve the instant case on immunity grounds, we need not address the additional
issue of whether the trial court erred in granting defendants’ motion to dismiss under section
2-615 of the Code.
¶ 39 III. CONCLUSION
¶ 40 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 41 Affirmed.
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