Mueller v. Community Consolidated School District 54

FIRST DIVISION

March 24, 1997

No. 1-94-1563

SARAH C. MUELLER, a Minor, by Kathleen E.

Math, Her Mother,

Plaintiff-Appellant,

v.

COMMUNITY CONSOLIDATED SCHOOL DISTRICT 54

and ANTHONY D. ROBINSON,

Defendant's-Appellees.)

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)Appeal from the

Circuit Court of

Cook County.

Honorable

Patrick E. McGann,

Judge Presiding.

JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiff appeals the order of the trial court dismissing her

first amended complaint with prejudice.

Plaintiff, Sarah Mueller, was a student at Margaret Mead

Junior High School of Community Consolidated School District 54

(the School District or defendant) in the Village of Elk Grove,

Illinois. The school maintained a wrestling team, sponsored by and

through the school with the approval of the School District.

Plaintiff was a manager of the wrestling team. Defendant, Anthony

D. Robinson (Robinson), was the wrestling coach.

Following afternoon wrestling practices, Robinson customarily

drove various wrestling team members and managers home. On

February 28, 1992, plaintiff attended wrestling practice. After

practice, Robinson offered to drive Mueller to Robinson's residence

so they could work on a personnel roster. While at his home,

Robinson sexually assaulted Mueller.

Mueller, by and through her mother, Kathleen E. Math, filed a

four-count complaint against both Robinson and the School District.

On November 30, 1993, Mueller filed a four-count first amended

complaint. The School District filed a three-part motion to

dismiss. The trial court granted the School District's motion with

prejudice. Plaintiff filed a motion to reconsider or, in the

alternative, to permit her to file a second amended complaint. The

trial court denied plaintiff's motion. This appeal followed. We

review the matter de novo.

As a preliminary matter, we note that although the School

District's motion to dismiss was divided into three sections, it

failed to specify whether portions of the motion were brought

pursuant to section 2-615 or 2-619 of the Code of Civil Procedure

as required by section 2-619.1 of the Code of Civil Procedure (735

ILCS 5/2-615, 2-619, and 2-619.1 (West 1994)) nor did the court

draw a distinction as to whether it was dismissing plaintiff's

complaint pursuant to section 2-615 or 2-619. Under these

circumstances, we must review the ruling on defendant's

nondesignated motion according to its grounds, its requests, or its

treatment by the parties and the trial court. Illinois Graphics

Co. v. Nickum, 159 Ill. 2d 469, 484, 639 N.E.2d 1282, 1289 (1994).

Motions properly brought under section 2-615 should be ruled upon

before a court entertains motions properly brought under section 2-

619. Talbert v. Home Savings of America, F.A., 265 Ill. App. 3d

376, 379, 638 N.E.2d 354, 357 (1994).

I

Section I of defendant's motion contends the complaint should

be dismissed on grounds plaintiff improperly commingled and

duplicated allegations and claims. Because defendant's argument

attacks the legal sufficiency of the complaint, we review section

I of defendant's motion under section 2-615. A section 2-615

motion should be granted only in those cases where the complaint

fails to allege sufficient facts which, if proved, would entitle

the plaintiff to relief. Urbaitis v. Commonwealth Edison, 143 Ill.

2d 458, 475, 575 N.E.2d 548, 555 (1991).

In support of its argument that plaintiff "improperly

commingled and duplicated allegations and claims," defendant cites

sections 2-603(a) and (b), 2-613(a), and 2-610(a) of the Code of

Civil Procedure. 735 ILCS 5/2-603(a), (b), 2-613(a), 2-610(a)

(West 1994). Sections 2-603(a) and (b) (735 ILCS 5/2-

603(a),(b)(West 1994)) require that a complaint contain a "plain

and concise statement of the pleader's cause of action" and that

"[e]ach separate cause of action *** be stated in a separate

count." Section 2-613(a) permits a party to "plead as many causes

of action *** as they may have". (735 ILCS 5/2-613(a)(West 1994))

We find nothing in the above-cited rules to prohibit plaintiff from

"restating the same claimed acts and omissions" in each count if

such acts or omissions give rise to liability under multiple

theories of recovery. Indeed, section 2-613(b) of the Code of

Civil Procedure implicitly acknowledges the possibility of such an

occurrence by permitting a party to state alternative causes of

action, regardless of their consistency.

Here, plaintiff's complaint alleges that the same operative

facts give rise to defendant's liability under four distinct

theories of tort. Count I of plaintiff's complaint alleges that

section 34-18.5 of the Illinois School Code (105 ILCS 5/1-1 et seq.

(West 1994)) imposed a duty upon defendant to conduct a background

check on Robinson, that it violated that statute, and as a result

plaintiff was injured. Count II alleges that, apart from its

statutory duty, the defendant owed plaintiff the duty of reasonable

care and caution in the hiring and investigation of Robinson, that

it violated that duty, and that plaintiff was injured. Count III

alleges that, in addition to its statutory duty to investigate

before hiring, the defendant owed plaintiff the duty of reasonable

care and caution in the supervision of Robinson after hiring, that

it violated that duty, and that plaintiff was injured. Finally,

count IV alleges that, in addition to its statutory duty to

investigate before hiring, the defendant owed plaintiff the

nondelegable duty to refrain from causing injury to plaintiff.

Because plaintiff's complaint plainly and clearly attempts to

allege four different causes of action, namely, negligence per se

(count I), negligent hiring (count II), negligent supervision

(count III), and breach of a nondelegable duty (count IV), we find

plaintiff has fulfilled the requirements of sections 2-603(a) and

(b) and 2-613(a) of the Code of Civil Procedure and defendant's

claim is without merit.

Section 2-610(a) of the Code of Civil Procedure (735 ILCS 5/2-

610(a)(West 1994)) applies only to "answer[s] and subsequent

pleading[s]", not to complaints. Accordingly, defendant's

contention section 2-610(a) supports its argument that plaintiff's

complaint improperly commingled and duplicated allegations and

claims is not well taken.

II

We next address section III of defendant's motion, which

asserts the complaint should be dismissed on grounds the plaintiff

failed to state a cause of action for negligent hiring (count II)

or based upon a "non-delegable duty" theory of liability (count

IV). Because these arguments also attack the legal sufficiency of

the complaint, we likewise review them under section 2-615. We

also consider here defendant's additional argument on appeal that

count III of plaintiff's complaint was likewise subject to

dismissal on grounds it failed to state a cause of action for

negligent supervision. Murphy v. Lindahl, 24 Ill. App. 2d 461,

468, 165 N.E.2d 340, 343 (1960); (where the decision of the lower

court is correct, the reasons acted upon by it are immaterial).

A

A cause of action for negligent hiring exists against an

employer only if it is alleged and established that (1) the

employer knew or should have known that the employee in question

had a particular unfitness for the position so as to create a

danger of harm to third persons, (2) that such particular unfitness

was known or should have been known at the time of hiring, and (3)

that this particular unfitness proximately caused the claimed

injury. Fallon v. Indian Trail School, Addison Township School

District, No. 4, 148 Ill. App. 3d 931, 935, 500 N.E.2d 101, 103-04

(1986).

Defendant contends count II of plaintiff's complaint was

deficient because it failed to allege that the School District knew

or should have known of Robinson's particular unfitness for his job

as a wrestling coach, or that such unfitness rendered the precise

injury suffered by plaintiff reasonably foreseeable. We disagree.

Count II of plaintiff's complaint alleges that because the

defendant was required by law and otherwise had a duty to exercise

reasonable care and caution in the hiring and investigation of

Robinson, it should have known at the time of hiring that he had a

criminal background exhibiting moral turpitude which made him unfit

for a position dealing with minors, and that plaintiff was injured.

We agree with plaintiff that this alleges sufficient facts to

satisfy the first and second elements of a negligent hiring cause

of action. Contrary to defendant's assertion, plaintiff need not

allege that Robinson had a "particular unfitness" for employment as

a wrestling coach under these facts. His coaching abilities are

not in question here. His fitness for a position that allowed him

unsupervised contact with minors is in question here, and it is the

perils and hazards likely to be encountered in that context against

which the defendant had a duty to protect. Malorney v. B&L Motor

Freight, Inc., 146 Ill. App. 3d 265, 268, 496 N.E.2d 1086, 1088

(1986); Easley v. Apollo Detective Agency, 69 Ill. App. 3d 920,

932, 387 N.E.2d 1241, 1248 (1979).

We note, however, that further review of plaintiff's complaint

reveals that count II fails to allege that the School District's

failure to exercise reasonable care and caution in the hiring and

investigation of Robinson was a proximate cause of plaintiff's

injury. Accordingly, count II was subject to dismissal without

prejudice under section 2-615 so as to allow plaintiff the

opportunity to replead and incorporate the causation element.

B

On appeal, the School District similarly contends count III of

plaintiff's complaint was deficient because it gave no factual

basis to support its allegation of negligent supervision other than

the same failure to conduct the criminal background investigation.

We disagree.

A cause of action for negligent supervision exists against the

School District if it is alleged and established that the School

District had a duty to supervise its employees, that the School

District negligently supervised Robinson, and that such negligence

proximately caused plaintiff's injuries. See generally State Farm

Fire & Casualty Co. v. Mann, 172 Ill. App. 3d 86, 92, 526 N.E.2d

389, 393 (1988) (plaintiff alleged parent negligent in supervision

of child); Niven v. Siqueira, 109 Ill. 2d 357, 361, 487 N.E.2d 937,

939 (1985) (plaintiff alleged hospital negligent in supervision of

physician); Normoyle-Berg & Associates, Inc. v. Village of Deer

Creek, 39 Ill. App. 3d 744, 744-45, 350 N.E.2d 559, 559-60 (1976)

(plaintiff alleged engineer negligent in supervision of

construction project). See also Quality Education for All

Children, Inc. v. School Board of School District No. 205, 385 F.

Supp. 803 (N.D. Ill. 1974) (holding that under Illinois law the

school board is vested with power to supervise teachers); 105 ILCS

5/10-20.7, 10-20.8, 10-21.1, and 10-22.4 (West 1994).

Count III of plaintiff's complaint alleges that the School

District owed her a duty to exercise reasonable care and caution in

the supervision of its employee, Robinson, that the School District

negligently or carelessly failed to supervise its employee in that

it failed to conduct a criminal background check on him even after

he was hired, allowed him to remain as an employee when the

criminal background check would have disclosed his moral turpitude

making him unfit for employment, and failed to employ any

procedures to determine whether or not he was competent and fit for

his job, and that plaintiff was injured by Robinson. Contrary to

the School District's assertion, we find that this does not merely

restate the same failure to conduct the criminal background

investigation alleged in count II of plaintiff's complaint. Count

II of plaintiff's complaint alleges the School District failed to

conduct the requisite prehire investigation whereas the instant

count alleges the School District failed to conduct any post-hire

investigation or procedures to determine whether Robinson was

competent and fit for his job. Thus, count III of plaintiff's

complaint was not subject to dismissal under section 2-615 for

failure to allege sufficient facts to support her claim that the

School District breached its duty to supervise Robinson.

The foregoing notwithstanding, we find that further review of

plaintiff's complaint reveals that count III, like count II, failed

to allege that the School District's failure to properly supervise

Robinson was a proximate cause of plaintiff's injury. Accordingly,

count III was likewise subject to dismissal without prejudice under

section 2-615 so as to allow plaintiff the opportunity to replead

and incorporate the causation element.

C

With regard to count IV of plaintiff's first amended

complaint, plaintiff alleges that the School District provided her

with transportation to and from school via bus, that as a result of

the wrestling team's after-school activities she was unable to take

the bus, and therefore Robinson was "a substitute driver." The

complaint further alleges that, owing to Robinson's status as a

"substitute driver," the school district had a nondelegable duty

"to refrain from causing injury" to her. Plaintiff therefore

concludes that, because she was injured, she is entitled to relief

from the School District. In support of her argument, plaintiff

relies primarily upon the fourth district case of Eversole v.

Wasson, 80 Ill. App. 3d 94, 398 N.E.2d 1246 (1980).

Plaintiff's reliance is misplaced. In Eversole, the court

held that a special relationship between the parties required the

defendant school district to protect the injured plaintiff. 80

Ill. App. 3d at 96-97, 398 N.E.2d at 1248. Here, the plaintiff did

not allege the School District breached a duty "to protect" but

rather pled the School District breached a duty "to refrain from

causing injury."

Furthermore, even assuming without deciding that count IV

alleges sufficient facts to establish that the School District owed

plaintiff a nondelegable duty of care (either because the school

district, through its employee Robinson, was acting as a common

carrier or because of a "special relationship" between the

parties), plaintiff would not be entitled to relief. Like a

corporation, the defendant School District is an artificial person

or legal entity created by or under the authority of the laws of

this state and cannot act save through its agents. Accordingly,

the School District may be held to have "assaulted, abused, and

caused intentional harm" to plaintiff as alleged in count IV of

plaintiff's complaint only if such acts by the School District's

agent, Robinson, were authorized or ratified.

Count IV of plaintiff's complaint alleges that Robinson had

permission to offer to drive plaintiff from school to her home; it

does not allege that Robinson had permission or authority to

sexually assault plaintiff. Thus, even if proved, the factual

allegations contained in count IV of plaintiff's complaint would

not entitle her to relief.

Because the facts pled would not entitle plaintiff to relief,

count IV of plaintiff's complaint was subject to dismissal under

section 2-615 of the Code of Civil Procedure. Urbaitis, 143 Ill.

2d at 475, 575 N.E.2d at 555. To hold otherwise would be to allow

plaintiff to circumvent the general rule that an employer may not

be held vicariously liable for an employee's willful and wanton,

intentional, or criminal act if it occurred outside the scope of

employment or was solely in furtherance of the employee's own

interests (see Deloney v. Board of Education, 281 Ill. App. 3d 775,

666 N.E.2d 792 (1996); Giraldi v. Lamson, 205 Ill. App. 3d 1025,

1030, 563 N.E.2d 956 (1990); Randi F. v. High Ridge YMCA, 170 Ill.

App. 3d 962, 524 N.E.2d 966 (1988)) by pleading direct and primary

liability rather than vicarious liability. Furthermore, it would

conflict with established law in Illinois, which holds that

although a common carrier has a nondelegable duty of care towards

it passengers (Gordon v. Chicago Transit Authority, 128 Ill. App.

3d 493, 470 N.E.2d 1163 (1984); Giraldi by Giraldi v. Community

Consolidated School District No. 62, 279 Ill. App. 3d 679, 692, 665

N.E.2d 332, 340 (1996)) such duty is to retain direct and primary

responsibility for operating the bus with the highest degree of

care (Garrett v. Grant School District No. 124, 139 Ill. App. 3d

569, 487 N.E.2d 699 (1985)), and does not extend to situations

where, as here, it is not the operation of the bus per se that

resulted in injury.

III

Having reviewed the sections of defendant's motion to dismiss

properly brought under section 2-615, we next address section II of

defendant's motion to dismiss. Section II of defendant's motion

argues that plaintiff's complaint should be dismissed on grounds

the School District has tort immunity under sections 2-103, 2-104,

2-109 and 2-201 of the Local Govermental and Govermental Employees

Tort Immunity Act (Tort Immunity Act). 745 ILCS 10/2-103, 2-104,

2-109, 2-201 (West 1994). Because it gives color to plaintiff's

complaint while claiming statutory immunity from liability, we

review the motion under section 2-619(a)(9). Midwest Bank & Trust

Co. v. Village of Lakewood, 113 Ill. App. 3d 962, 972, 447 N.E.2d

1358, 1364 (1983). Under the facts of this case, we must determine

de novo whether section II of defendant's motion to dismiss

established a valid affirmative defense to plaintiff's complaint or

whether plaintiff's response to defendant's motion to dismiss

established that the asserted defense is unfounded. See 4 R.

Michael, Illinois Practice 41.8 at 334-36 (1989).

Section 2-103 gives governmental entitites immunity from

liability for injury resulting from failure to enforce any law.

This case is not concerned with enforcement of a law, but, rather,

the violation of a state statute. The plaintiff is not suing the

state for failing to make sure the School District abided by its

statute (enforcement); the plaintiff is suing School District 54

because it violated a state statute intended to protect persons

such as herself from the type of injury she received (compliance).

See Filipetto v. Village of Wilmette, 254 Ill. App. 3d 461, 470,

627 N.E.2d 60, 66 (1993).

Section 2-104 gives governmental entitites immunity from

liability for injury resulting from "the issuance, denial,

suspension or revocation of, or by the failure or refusal to issue,

deny, suspend or revoke, any permit, license, certificate,

approval, order or similar authorization." 745 ILCS 5/2-104 (West

1994). Because no permit, license, certificate, approval, order or

similar authorization is alleged to have caused injury in this

case, section 2-104 does not provide the School District with tort

immunity.

Section 2-109 gives governmental entities immunity from

liability for injury resulting from an act or omission of an

employee where the employee is not liable. Neither party has

argued that Robinson is not liable for sexual assault.

Finally, section 2-201 gives governmental entitities immunity

from liability for injuries resulting from exercise of

discretionary authority. Here the School District's discretion is

fettered by the criminal-background-check statute. The statute

provides that the School District "shall not knowingly employ a

person for whom a criminal background investigation has not been

initiated." 105 ILCS 5/34-18.5(d) (West 1994). Given the

statute's mandatory language, we find that it requires the School

District to at least commence an investigation of employment

applicants before it is vested with the discretionary authority to

hire. We therefore conclude that the School District's failure to

comply with the statutorily imposed condition precedent vitiates

any immunity it might otherwise have enjoyed under section 2-201 of

the Tort Immunity Act for hiring Robinson.

Because defendant's motion to dismiss failed to establish a

valid affirmative defense to plaintiff's complaint and because

plaintiff's response to defendant's motion to dismiss established

that the asserted defenses were unfounded, we conclude that if the

trial court's decision to dismiss plaintiff's complaint was

grounded upon an application of section 2-103, 2-104, 2-109, or 2-

201 of the Tort Immunity Act, that decision was in error.

IV

On appeal defendant further contends that plaintiff's brief

articulates a negligence per se theory of recovery for count I of

her complaint that was not raised before the trial court and it

should therefore be deemed waived. We disagree.

A complaint is sufficient if it pleads facts that bring the

claim within a legally recognized cause of action. People ex rel.

Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 308, 430 N.E.2d

1005, 1009 (1981). Count I alleges that the School District had a

statutory duty to conduct a backround check on Robinson, that it

violated that statute (i.e., breached that duty), and as a result

plaintiff was injured. These are the elements of a negligence per

se claim which, if proved by plaintiff and not justified by

defendant, would entitle plaintiff to relief. See Ney v. Yellow

Cab Co., 2 Ill. 2d 74, 117 N.E.2d 74 (1954). Thus, while the

phrase "negligence per se" does not appear in count I, it contains

sufficient facts to support the claim. Accordingly, we find that

plaintiff's negligence per se argument has not been waived.

Alternatively, defendant's brief on appeal argues that if

plaintiff did not waive her negligence per se theory of recovery,

count I of her complaint fails to show that it applies in the

instant case. In support of this argument defendant cites Arizzi

v. City of Chicago, 201 Ill. App. 3d 368, 559 N.E.2d 68 (1990).

The Arizzi case holds that laws designed to protect the public

at large impose no corresponding duty to protect individual members

of the public absent a special relationship. 201 Ill. App. 3d at

371, 559 N.E.2d at 70. Defendant thus spends much time and energy

trying to convince this court there was no special relationship

between itself and plaintiff. In so doing, defendant argues

plaintiff must show (1) that the municipality was uniquely aware of

a particular danger or risk to her in particular; (2) that there

are allegations of specific acts or omissions by the municipality

in question; (3) that the alleged acts of the municipality were

affirmative and willful in nature; and, (4) that the plaintiff in

question was under the direct and immediate control of the

municipality at the time that the injury was incurred.

We find the case at bar is distinguishable from Arizzi in that

the statute at issue here is not intended to protect the "public at

large," but, rather, is one intended to protect a specific class of

individuals, namely, schoolchildren. Moreover, the entire Arizzi

line of cases cited by defendant (Stigler v. City of Chiago, 48

Ill. 2d 20, 268 N.E.2d 26 (1971); Ferentchak v. Village of

Frankfort, 105 Ill. 2d 474, 475 N.E.2d 822 (1985); Lakeside

Condominium "C" Association v. Frediani Developers, Inc., 135 Ill.

App. 3d 972, 482 N.E.2d 665 (1985); Gordon v. County of Jackson,

231 Ill. App. 3d 1017, 597 N.E.2d 170 (1992); Swaw v. Ortell, 137

Ill. App. 3d 60, 484 N.E.2d 780 (1985)) is concerned with the

enforcement of laws as opposed to compliance therewith. Here the

plaintiff is not suing the state for failing to make sure the

School District abided by its statute (enforcement), but is suing

the School District because it violated a state statute intended to

protect persons such as herself from the type of injury she

received (compliance).

We conclude, therefore, that where the general rule enunciated

by Arizzi does not apply, neither do the requirements of its

special relationship exception. Accordingly, plaintiff need not

show that the School District had knowledge of a particular danger

to plaintiff, that the alleged acts were willful in nature, or that

plaintiff was under the direct and immediate control of the School

District at the time of her injury in order to maintain her

negligence per se cause of action.

Summary

For the foregoing reasons, we find (1) that count I adequately

alleges the elements of a negligence per se claim and should not

have been dismissed under section 2-615; (2) that count II

adequately alleges duty, breach, and injury, but fails to allege

the causation element of a negligent hiring claim and should have

been dismissed without prejudice; (3) that count III adequately

alleges duty, breach, and injury, but also fails to allege the

causation element of a negligent supervision claim and should have

been dismissed without prejudice; and, (4) that count IV alleges

facts which, even if proved, would not entitle plaintiff to relief

and therefore was properly dismissed with prejudice. We further

find that the sections of the Tort Immunity Act cited by defendant

do not support its motion to dismiss. Accordingly, we reverse and

remand the trial court's dismissal with prejudice of count I, we

modify its dismissal of counts II and III to dismissal without

prejudice, and we affirm its dismissal of count IV with prejudice.

Reversed and remanded in part, modified in part, and affirmed

in part.

CAHILL, J., with THEIS, J., concurring.