FILED

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.,

,

(2009). This court reviews the dismissal under either section de novo. Kean,

,

-4-

. 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,

,

(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,

,

(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,

,

.

¶ 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,

,

(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.,

,

(1994). Instead, it is

viewed as an aggravated form of negligence. Sparks v. Starks,

,

(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,

,

(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,

,

(2004). However, we must first determine whether McLean

owed Hampton a duty. See Scarano v. Town of Ela,

,

(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,

,

.

¶ 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,

,

(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,

,

(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,

,

(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,

,

. The rule was applied in a

school context again in Lawson v. City of Chicago,

,

(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,

,

. 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,

(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,

,

(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.,

,

(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.,

,

(2006); LaFever,

, 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,

,

.

¶ 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,

,

(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,

,

(2002) (citing Village of Bloomingdale v. CDG Enterprises, Inc.,

,

(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,

,

(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,

,

(2006); Van Meter v. Darien Park

District,

, 367,

(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,

,

; DeSmet,

,

. "It is only when the governmental entities have met this burden that a

plaintiff's right to recovery is barred." Van Meter,

,

. 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,

,

(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.,

,

(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,

,

(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,

,

(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,

,

(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,

,

(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 -