Brookens v. Springfield School District No. 186

NOTICE 2024 IL App (4th) 4240126-U FILED

This Order was filed under November 1, 2024

Supreme Court Rule 23 and is

NO. 4-24-0126 Carla Bender

not precedent except in the

limited circumstances allowed 4th District Appellate

under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

CYHILA BROOKENS, ) Appeal from the

as Independent Administrator ) Circuit Court of

of the Estate of Pierre Scott Jr., Deceased ) Sangamon County

)

and )

)

KRISHAWNA ACRES, )

as Guardian of the Estate and )

Person of D.D., a Minor, ) No. 22LA145

)

Plaintiffs-Appellants, )

)

v. )

)

SPRINGFIELD SCHOOL DISTRICT NO. 186, )

JASON WIND, DIANNE BELL, JEFF BARR, )

ROMONA MARTIN, KARI BORDERS, and )

KIMBERLY SMITH, ) Honorable

) Ryan M. Cadagin,

Defendants-Appellees. ) Judge Presiding.

JUSTICE VANCIL delivered the judgment of the court.

Justices Doherty and Lannerd concurred in the judgment.

ORDER

¶1 Held: The appellate court reversed and remanded for further proceedings in the trial

court, finding the amended complaint and other supporting documents did not

contain a sufficient factual basis for an immunity finding under sections 2-201

and 2-109 of the Tort Immunity Act that would warrant dismissal; the appellate

court also reversed the trial court’s holding that section 4-102 of the Tort

Immunity Act applied, holding that the allegations in the amended complaint did

not allege that defendants failed to provide police protection services.

¶2 This case arises from a tragic incident involving a fatal stabbing that occurred at

Lanphier High School (Lanphier) in 2021. Plaintiffs, Cyhila Brookens, as independent

administrator of the estate of Pierre Scott Jr., and Krishawna Acres, as guardian of the estate of

D.D., asserted wrongful death claims against defendants, Springfield School District No. 186

(School District), Jason Wind, Dianne Bell, Jeff Barr, Romona Martin, Kari Borders, and

Kimberly Smith, on a theory of willful and wanton conduct and negligence. The trial court

dismissed the case pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735

ILCS 5/2-619(a)(9) (West 2022)) based on immunity under sections 2-201, 2-109, and 4-102 of

the Tort Immunity Act (Act) (745 ILCS 10/1-101.1, et seq. (West 2020)). On appeal, plaintiffs

ask us to reverse the trial court’s judgment. For the reasons stated below, we reverse.

¶3 I. BACKGROUND

¶4 A. Factual Background

¶5 The following factual background is taken from plaintiffs’ amended complaint.

We note at the outset that plaintiffs’ amended complaint contains certain errors and omissions

that somewhat obscure their claims before us. For example, plaintiffs seemingly refer to

Christopher Barham and Brian Caton, the assistant principals of Lanphier, as defendants when

they are not named defendants in the case. Furthermore, plaintiffs failed to delineate their

specific claims as to each defendant and allege specific actions taken by each defendant in

relation to the alleged wrongful actions. At oral argument, plaintiffs also seemingly changed

what conduct the claims in the amended complaint sought to redress. Nevertheless, we are able

to surmise the following factual allegations, which we accept as true solely for purposes of this

appeal. We note that this case has a related criminal appeal in the Fourth District (case no.

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4-23-0553). The facts and analysis in this case are limited to the appeal before us and have no

bearing on the result in the criminal case.

¶6 On November 17, 2021, while at Lanphier, a facility of the School District, K.B.,

a minor at the time, stabbed two fellow students: Pierre Scott Jr. and D.D., a minor. This resulted

in the tragic death of Scott.

¶7 K.B., a special needs student with a history of bad behavior, including aggression

and physical violence, had an individualized educational plan that entailed her attending

alternative school programming at Douglas/PREP (Douglas), another facility in the School

District. Prior to the Lanphier incident of November 17, a separate incident occurred at Douglas

in which defendant Dianne Bell, a teaching assistant, encountered K.B., who possessed a knife.

The other defendants were aware of this incident and also knew of an escalating feud between

the children, including threats of physical violence. Nevertheless, after an unspecified period of

time, K.B. was allowed to return to Lanphier for schooling in the afternoon under supervision on

a daily or semidaily basis. Thus, K.B. would attend Douglas in the morning, then, by way of

school transportation, she would attend Lanphier in the afternoon.

¶8 B. Procedural Background

¶9 After plaintiffs filed their original complaint, defendants filed a motion to dismiss,

which included an affidavit of defendant Jason Wind, the executive director of school support for

the School District. Plaintiffs moved for leave to file an amended complaint, and the trial court

granted leave. Plaintiffs then filed the amended complaint before us now. In the amended

complaint, plaintiffs alleged defendants consciously and purposefully reintroduced K.B. to

Lanphier without adequate supervision despite knowing of the danger she posed to the student

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body. Plaintiffs lump all defendants together and allege they collectively breached their duty to

the students willfully and wantonly.

¶ 10 Defendants filed a second motion to dismiss, which again included an affidavit of

defendant Wind. In their motion, defendants argued that (1) the amended complaint failed to

comply with section 2-603 of the Code (735 ILCS 5/2-603 (West 2022), (2) the amended

complaint failed to adequately plead facts supporting a cause of action, and (3) absolute

immunity under the Act—specifically sections 2-201, 2-109, and 4-102—precluded suit against

defendants. See 745 ILCS 10/2-201, 2-109, 4-102 (West 2020). The trial court ruled only on the

third issue, holding that defendants had absolute immunity from suit under the Act, and

dismissed plaintiffs’ complaint pursuant to section 2-619(a)(9) of the Code. 735 ILCS 5/2-

619(a)(9) (West 2022).

¶ 11 Thereafter, plaintiffs filed a notice of appeal, and later a motion to reconsider. As

part of the motion to reconsider, plaintiffs noted that defendant DiAnne Bell did not join the

motion to dismiss; therefore, the order was not a final order as to all parties. We accordingly

dismissed the pending appeal. Bell eventually adopted defendants’ motion to dismiss. The parties

submitted briefs, along with a second affidavit from Wind, and the trial court granted Bell’s

motion to dismiss for the reasons explained in its first order. As no further claims were pending

before the court, it entered judgment in favor of all defendants.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, plaintiffs’ arguments largely pertain to alleged issues with Wind’s two

affidavits. Plaintiffs assert the trial court should not have relied on the affidavits because they

improperly refuted facts in the amended complaint, failed to comply with Illinois Supreme Court

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Rule 191(a) (eff. Jan. 4, 2013), and offered their own facts, which conflicted with those in the

amended complaint. Defendants respond to these arguments and ask us to affirm the trial court’s

holdings on absolute immunity under the Act.

¶ 15 A. Standard of Review

¶ 16 The trial court granted dismissal pursuant to section 2-619(a)(9), which provides

for involuntary dismissal where a “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 2020). Tort immunity is a proper affirmative matter under section 2-619(a)(9), as it

“ ‘completely defeats the plaintiff’s ability to successfully prosecute its claim against the

defendant.’ ” Xochi, LLC v. City of Galena, 2022 IL App (4th) 220340, ¶ 18 (quoting Reynolds v.

Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 33).

¶ 17 “A motion for involuntary dismissal under section 2-619(a)(9) of the Code admits

the legal sufficiency of the complaint, as well as all well-pleaded facts and all reasonable

inferences therefrom.” (Internal quotation marks omitted.) Xochi, 2022 IL App (4th) 220340,

¶ 19. “The trial court should grant a motion to dismiss under section 2-619(a)(9) only when,

construing the pleadings in the light most favorable to the plaintiff, the plaintiff can prove no set

of facts that would support a cause of action.” (Internal quotation marks omitted.) Id. “This court

reviews a dismissal pursuant to section 2-619 de novo.” Id.

¶ 18 B. The Act

¶ 19 The trial court found defendants were immune from liability under the Act. The

Act’s purpose “is to protect local public entities and public employees from liability arising from

the operation of government.” 745 ILCS 10/1-101.1 (West 2020). The Act only grants

immunities and defenses. Id. The legislature provided immunity to local public entities “to

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prevent the dissipation of public funds on damage awards in tort cases.” Van Meter v. Darien

Park District, 207 Ill. 2d 359, 368 (2003). Government entities bear the burden of proving they

are immune from a claim under the Act. Id. at 370. The defense must be apparent on the face of

the complaint or else supported by affidavits or other evidentiary materials. Id. at 377.

¶ 20 At issue in this case are sections 2-201, 2-109, and 4-102 of the Act. Ultimately,

we hold that (1) based on the facts before us, dismissal is not warranted based on immunity

pursuant to sections 2-201 and 2-109 and (2) section 4-102 does not apply to the claims as

pleaded. We begin our analysis with sections 2-201 and 2-109.

¶ 21 1. Sections 2-201 and 2-109

¶ 22 Section 2-201 of the Act provides that “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 2020). Section 2-109 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.” Id. § 2-109 (West 2020). Therefore, if an employee

is immune under section 2-201, then the School District is also immune.

¶ 23 Our supreme court has held that the 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 or she holds either a position involving the determination of policy or involving

the exercise of discretion; second, an employee who satisfies the first prong 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. Hascall v. Williams, 2013 IL App (4th)

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121131, ¶ 23 (citing Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341

(1998) (abrogated on other grounds)).

¶ 24 The crux of plaintiffs’ allegations is that defendants wrongfully allowed a student

to reenter Lanphier in the afternoons after doing alternative schooling at Douglas, and that as a

result, that student stabbed other children, resulting in the death of one student. The amended

complaint alleges that defendants did this despite having prior knowledge that this student was

dangerous. Plaintiffs allege that “[d]efendants’ affirmative acts and conscious decisions to

separate the student from the student body at Lanphier and then reintroduce her into that

population without adequate supervision proximately caused severe bodily harm to [D.D.] and

[Scott].” We note that at oral argument, plaintiffs seemingly changed the conduct, or rather lack

of conduct, that would serve as the basis for their claim. They asserted that their claims were for

inaction on the part of school officials in preventing the incident.

¶ 25 The legal framework for our analysis is as follows: first, we examine whether

defendants hold either a position involving the determination of policy or involving the exercise

of discretion; and second, we analyze whether defendants engaged in both the determination of

policy and the exercise of discretion when they decided to separate the student from the student

body at Lanphier and then reintroduce her into that population.

¶ 26 A policy choice is one which “require[s] 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.” Van Meter, 207 Ill. 2d at 375. Discretionary acts are “unique to a particular

public office.” Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 484-

85 (2002). Discretion “ ‘connotes a conscious decision.’ ” Monson v. City of Danville, 2018 IL

122486, ¶ 33 (quoting Corning v. East Oakland Township, 283 Ill. App. 3d 765, 768 (1996)).

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¶ 27 The named defendants are the School District, Wind, Bell, Barr, Martin, Borders,

and Smith. Wind is employed at the School District as the executive director of school support;

Bell is employed at the School District as a teaching assistant; Barr is employed at the School

District as a security guard; Martin is employed at the School District as a social worker; Borders

is employed at the School District as a site administrator; and, Smith is employed at the School

District as a guidance counselor.

¶ 28 Notably, the amended complaint does not delineate between the defendants as to

which defendant made which decision or which defendant took which action. Wind’s affidavits,

which defendants rely upon, similarly do not indicate who made decisions or who took which

actions. Wind’s first affidavit speculates on what employees would have done and references the

School District’s handbook and disciplinary policies. His second affidavit recounts what some of

the defendants did on a prior date when K.B. was caught with a knife when entering Douglas,

then simply states:

“Each of these six individuals held a policy making position to the extent that he

or she was required to balance the competing interests in determining appropriate

discipline for students and to determine what solution best serves those interests.

Each also participated in the discretionary policy decision of how to respond to

[K.B.’s] act of bringing the pocketknife into Douglas.”

Even if we were to accept these statements, they do not relate to the alleged improper actions,

nor do they add any facts relating to the individual defendants’ positions or actions.

¶ 29 As such, we cannot determine whether each of the defendants held a position

involving the determination of policy or involving the exercise of discretion, nor which

defendants, if any, engaged in both the determination of policy and the exercise of discretion

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when they decided to separate the student from the student body at Lanphier and then

reintroduce her into that population. See Roe v. Board of Education of Community High School

District 99, 2024 IL App (3d) 220377-U, ¶ 33 (not applying section 2-201 immunity where the

record on appeal lacked evidence of whether policy determinations were made and what

discretionary acts occurred, if there were indeed acts of discretion); see also Doe ex rel. Doe v.

White, 627 F. Supp. 2d 905, 923-24 (C.D. Ill. 2009)) (not applying section 2-201 immunity on a

motion to dismiss where questions remained about whether all the actions were discretionary, or

whether some were ministerial, and there was no evidence about what competing interests were

balanced). Where facts necessary to sustain an affirmative defense are not apparent on the face of

the complaint and not supported by affidavits or other materials in the record, defendants are not

entitled to dismissal. Monson ¶ 31 n.1.

¶ 30 For example, we cannot determine from the amended complaint or defendants’

provided affidavits how and in what manner Barr, the security guard, exercised discretion or

made a policy determination in relation to K.B.’s schooling at Lanphier and Douglas. The

allegations in the amended complaint lump Barr in with all of the other defendants in its claims.

Barr is not mentioned at all in the first affidavit, and the second affidavit only discusses Barr’s

actions relating to the first incident of K.B. bringing a knife to Douglas. This can be said of each

defendant. While it very well might be true that the parties held positions of policy discretion and

made such policy determinations, nothing provided by the parties establishes this. There is

simply not enough information before us at this time to affirm dismissal pursuant to section 2-

619(a)(9) on the basis of immunity under sections 2-201 and 2-109.

¶ 31 2. Section 4-102

¶ 32 Section 4-102 of the Act states:

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“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. This immunity is

not waived by a contract for private security service, but cannot be transferred to

any non-public entity or employee.” 745 ILCS 10/4-102 (West 2020).

¶ 33 Section 4-102 does not contain any exceptions and absolutely immunizes local

public entities and their employees for both negligent and willful and wanton conduct in failing

to protect or in providing inadequate police protection services. Andrade v. City of Kankakee,

2023 IL App (3d) 230035, ¶ 16. The plain language of section 4-102 provides that immunity for

failure to prevent a crime attaches “if police protection service is provided.” (Emphasis in

original.) Doe ex rel. Ortega-Piron v. Chicago Board of Education, 213 Ill. 2d 19, 25 (2004).

¶ 34 In Doe v. School District U-46, the Northern District of Illinois federal court held

that section 4-102 immunity did not apply because the plaintiff did not allege that the defendants

failed to establish a police department or otherwise provide police protection service or, if police

protection service was provided, failed to provide adequate police protection or service. Doe v.

School District U-46, 557 F. Supp. 3d 860, 876 (N.D. Ill. 2021). The plaintiff brought claims

against the defendants for willful and wanton misconduct for failure to ensure student safety

from physical violence. Id. There were no allegations that a teacher or administrator functioned

as police personnel by “provid[ing] services performed by police personnel such as ‘weapons

detection, traffic control, and crowd security and control.’ ” Id. at 876-77.

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¶ 35 Many courts, including our supreme court, have found section 4-102 immunity to

apply to “functions traditionally performed by police, such as weapons detection, traffic control,

and crowd security and control.” Albert v. Board of Education of City of Chicago, 2014 IL App

(1st) 123544, ¶ 53 (citing Doe v. Chicago Board of Education, 213 Ill. 2d 19, 26 (2004)); see

Doe v. Board of Education of City of Chicago, 611 F. Supp. 3d 516, 543 (N.D. Ill. 2020)

(holding that immunity under section 4-102 did not apply because the alleged misconduct did not

involve police protection services.); see also Ortega-Piron, 213 Ill. 2d at 27 (finding the school

board was not providing ‘police protection service’ under section 4-102 by providing a bus

attendant).

¶ 36 In Wright-Young v. Chicago State University., 2019 IL App (1st) 181073, ¶ 64,

the defendant school board argued that the jury was improperly allowed to base its verdict on the

school board’s failure to provide adequate police services. Specifically, the jury was instructed

that the claims against the school board were

“based on its failures to implement an appropriate security plan for the safety of

students given the elevated risks for violence at the event, to assign or maintain

posts within the arena, to keep entrances and exits clear of crowds during and

immediately after the game, to prevent fans from engaging in multiple fights

inside the arena and outside its entrances, and to prevent fans from exiting the

arena in a disorderly manner.” (Internal quotation marks omitted.) Id.

The appellate court agreed that these theories of liability described police protection services, all

of which were afforded immunity under section 4-102. Id. ¶ 65. The court explicitly rejected

plaintiff’s theory that her allegations were more properly characterized as the failure to supervise

or monitor students, activities which would not fall within section 4-102. Id. ¶ 67.

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¶ 37 Also instructive is Reyes v. Board of Education of the City of Chicago, 2019 IL

App (1st) 180593, ¶ 3, where a disabled student was sexually assaulted by a nondisabled student

on a special needs school bus. The plaintiffs alleged that an aide assigned to the bus fell asleep

during her shift and allowed the nondisabled student to “roam around the bus at will.” Id. ¶ 10.

The trial court characterized the claim as one based on a failure to provide police protection

services or prevent a crime and concluded that the board was immune from liability under

section 4-102. Id. ¶ 4. The appellate court reversed, reasoning that the attendant “was tasked with

managing student behavior and physically assisting students with getting on and off the bus,”

and as such, her function was more akin to that of a “teacher or a hall monitor whose very

presence may prevent unsafe activity or untoward behavior” than someone functioning as police

personnel. Id. ¶ 46. In reaching its holding, the appellate court stated that it found significant the

fact that the plaintiffs “did not allege anything in their complaint that indicate[d] that [the bus

attendant] also provided services performed by police personnel, such as weapons detection,

traffic control, and crowd security and control.” Id. ¶ 45.

¶ 38 In Brooks v. McLean County Unit District No. 5, 2014 IL App (4th) 130503, ¶ 33,

the plaintiff argued that the defendants’ failure to monitor students in the bathrooms was a

supervisory act with immunity under section 3-108 and not a police act receiving immunity

under section 4-102. We agreed, reasoning that it would require a broad interpretation of the

statute to cast a failure to supervise students in the bathroom as a failure to provide “police

protection services.” Id. ¶ 35. We ultimately analyzed the allegations in the complaint as

asserting a failure to supervise students with potential immunity under section 3-108. Id.

¶ 39 Here, we find that the amended complaint does not allege a failure by defendants

to provide police protection services. In the amended complaint, the allegations are more aptly

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described as alleging a failure to supervise and monitor students. Plaintiffs admit in their briefing

that they are not alleging any failure to provide security. As such, based on the amended

complaint before us, we hold that section 4-102 is inapplicable.

¶ 40 III. CONCLUSION

¶ 41 For the reasons stated, we reverse the trial court’s dismissal. To summarize, first,

we cannot determine based on the record before us whether section 2-201 immunity applies to

defendants’ actions alleged in the amended complaint. Second, we hold that section 4-102

immunity does not apply to the claims in this case as currently pleaded in the amended

complaint, as they are not accurately characterized as services performed by police. The

judgment of the trial court is reversed and remanded for further proceedings not inconsistent with

this order.

¶ 42 Reversed and remanded.

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