Doe v. Lawrence Hall Youth Services

ILLINOIS OFFICIAL REPORTS

Appellate Court

Doe v. Lawrence Hall Youth Services, 2012 IL App (1st) 103758

Appellate Court JOHN DOE, a Minor, by his Father and Next Friend, RICHARD DOE,

Caption Plaintiff-Appellant, v. LAWRENCE HALL YOUTH SERVICES, an

Illinois Corporation, Defendant-Appellee.

District & No. First District, Fourth Division

Docket No. 1-10-3758

Filed January 26, 2012

Held The trial court properly dismissed an action alleging negligent

(Note: This syllabus supervision and intentional infliction of emotional distress in connection

constitutes no part of with the alleged improper sexual relationship one of defendant’s

the opinion of the court employees had with a minor student defendant accepted into its

but has been prepared residential treatment program for children with emotional, behavioral and

by the Reporter of learning challenges, since the school was operated pursuant to the Illinois

Decisions for the School Code, section 34-84a of the School Code conferred in loco

convenience of the parentis status on defendant’s teachers and staff, which conferred

reader.)

immunity from liability for negligence relating to conduct with the

children in the absence of proof of wilful or wanton misconduct, the

allegations made against the teacher could not be imputed to defendant,

the conduct occurred off the school grounds and was beyond the scope of

the teacher’s employment, and plaintiff expressly waived the argument

that he alleged wilful and wanton misconduct via the claim of intentional

infliction of emotional distress.

Decision Under Appeal from the Circuit Court of Cook County, No. 09-L-004313; the

Review Hon. Drella Savage, Judge, presiding.

Judgment Affirmed.

Counsel on Edmund J. Scanlan, of Chicago, for appellant.

Appeal

Robert Mark Chemers, Richard M. Waris, Edward J. Aucion, and Sara

Jane Brundage, all of Pretzel & Stouffer, Chtrd., of Chicago, for appellee.

Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court,

with opinion.

Presiding Justice Lavin and Justice Sterba concur in the judgment and

opinion.

OPINION

¶1 Plaintiff John Doe, by his father and next friend Richard Doe, appeals from orders of the

trial court dismissing with prejudice various counts of his complaint against defendant

Lawrence Hall Youth Services pursuant to sections 2-619 and 2-615 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-619, 2-615 (West 2008)). We affirm.

¶2 BACKGROUND

¶3 Defendant is a residential private school providing services to children with severe

emotional, behavioral, and learning challenges. Its program is a 24-hour-per-day, 7-day-per-

week therapeutic treatment program. Defendant is registered and funded by the Illinois State

Board of Education and operates its school pursuant to the Illinois School Code (105 ILCS

5/24-24 (West 2010)). In September 2007, defendant voluntarily accepted minor plaintiff

John Doe into its school and residential treatment program. Later, during the years of 2008

to 2009, defendant employed Linda Pithyou as a teacher in its treatment, education, and

residential program. During her employment, Pithyou allegedly engaged in an improper

sexual relationship off school grounds.

¶4 Defendant maintained rules and regulations for children in its program, including

establishing curfews and prohibiting alcohol and drug use both on-site and off-site.

Nonetheless, according to the complaint, on numerous occasions between December 2008

and January 27, 2009, Pithyou picked plaintiff up at Lawrence Hall and consumed alcohol

and marijuana with him. She also drove him to retail stores where she purchased clothing and

cellular telephones for him. From January 27, 2009, to February 23, 2009, Pithyou on various

occasions engaged in oral sex and intercourse with plaintiff.

¶5 In April 2009, plaintiff filed a complaint against defendant alleging negligent supervision

(count I) and intentional infliction of emotional distress (count II) in connection with the

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alleged sexual misconduct perpetrated by Pithyou while plaintiff was a resident student at

Lawrence Hall. Defendant filed a motion to dismiss. The circuit court granted the motion to

dismiss without prejudice.

¶6 Plaintiff then filed an amended complaint in December 2009, and defendant filed a

motion to dismiss pursuant to section 2-619. This is the motion at issue here. After hearing

oral arguments by both parties, the court granted defendant’s motion to dismiss.

¶7 In the amended complaint, plaintiff again alleged both negligent supervision and

intentional infliction of emotional distress.1 He alleged that defendant employed Pithyou and

that Pithyou was his teacher. He alleged that he violated the school’s regulations regarding

curfew and the consumption of alcohol and drugs by sneaking out to meet Pithyou, who

would take him away from Lawrence Hall and purchase and consume alcohol and marijuana

with him. He also alleged that Pithyou would engage in oral sex and intercourse with him.

Further, plaintiff alleged that “various employees of defendant” observed him coming home

after curfew intoxicated and under the influence of drugs. He alleged:

“[N]umerous employees and agents of defendant’s comprehensive treatment, educational

and residential program were aware that minor plaintiff was receiving gifts from

defendant’s agent and employee, Linda Pithyou, as well as staying out all night, staying

out past curfew with defendant’s agent, and was coming back to [defendant’s] facility

under the influence of alcohol and/or drugs.”

He argued that defendant had a special relationship with plaintiff as a voluntary custodian

and protector and that, as a direct result of the special relationship, defendant had a duty to

protect plaintiff “from a criminal attack by a third person, its employee and agent, Linda

Pithyou.” He argued that, even though defendant had this duty, it was nonetheless guilty by

and through its agents, servants, and employees of one or more of the following negligent

acts and/or omissions:

“(a) failed to report suspicions of abuse pursuant to 325 ILCS 5/4;

(b) failed to supervise the minor plaintiff, JOHN DOE, to ensure compliance with its

curfew regulations;

(c) allowed the minor plaintiff, JOHN DOE, to remain outside its residential

treatment centers over night, despite no prior authorization to do so;

(d) failed to enforce its policy regarding consumption of alcohol and/or use of

recreational drugs;

(e) failed to properly supervise the minor plaintiff, JOHN DOE, by failing to discover

that its employee, Linda Pithyou, was picking up the minor plaintiff, JOHN DOE, in a

car after school hours and returning him after curfew;

(f) failed to establish policies for its teachers regarding boundaries with the at-risk

children, including the minor plaintiff, JOHN DOE, that they are servicing, including

1

The trial court eventually dismissed both counts of the lawsuit, but plaintiff only appeals

the dismissal of his claim for negligent supervision. Accordingly, we discuss only that claim in this

order.

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having no private outside contact with these children without prior express approval;

(g) failed to properly monitor the activities of its agent and employee, Linda Pithyou,

regarding outside contact with its protectees, including the minor plaintiff, JOHN DOE;

(h) failed to appreciate the grooming techniques being employed by its agent and

employee, Linda Pithyou, toward the minor plaintiff, JOHN DOE; [and]

(i) failed to train its staff in its comprehensive treatment, education and residential

program of the potential for abuse of its protectees by defendant’s agents who are

grooming them by virtue of buying them gifts.”

He alleged that, as a direct and proximate cause of one of the aforementioned acts, plaintiff

suffered various injuries. He asked for judgment against defendant and a sum in excess of

$50,000 plus the costs of the lawsuit.

¶8 Thereafter, defendant filed a motion to strike plaintiff’s first amended complaint or, in

the alternative, to dismiss the first amended complaint pursuant to sections 2-615 and 2-619.

Defendant contended that plaintiff’s amended pleading was legally insufficient because: (1)

it failed to state a cause of action for intentional infliction of emotional distress where

defendant could not be held legally responsible for the intentional acts of a former employee

which were outside the scope of her employment responsibilities as an educator; and (2)

defendant owed no duty to plaintiff to protect him from illegal, criminal, or sexual conduct

by a teacher that occurred off of school grounds.

¶9 Alternatively, defendant contended that, pursuant to section 2-619, plaintiff’s claims were

barred by the Illinois School Code (105 ILCS 5/24-24 (West 2010)), which provides

immunity from liability for negligence and requires the plaintiff to prove wilful and wanton

misconduct in order to recover. It argued that, because Pithyou acted completely outside the

scope of her employment with defendant, there can be no claim under a respondeat superior

argument. Defendant contended that plaintiff’s complaint, which alleged negligent

supervision by defendant, was insufficient because it related to the conduct of the school and

the school children, which is protected under section 24-24.

¶ 10 In May 2010, the trial court granted defendant’s motion to dismiss count II of the first

amended complaint for intentional infliction of emotional distress and took the negligent

supervision count (count I) under advisement. Soon after, the court issued a memorandum

order granting the motion to dismiss count I. The court found that: (1) the doctrine of

respondeat superior did not apply because the sexual misconduct by Pithyou was not within

the course and scope of her employment; and (2) the Illinois School Code provided immunity

to defendant against claims for negligent supervision. Regarding the doctrine of respondeat

superior, the court reasoned:

“In this case, there is no evidence that the Defendant, independent from the actions of

Linda Pithyou, condoned, benefitted or encouraged Pithyou in acting outside the scope

of her employment with the minor plaintiff. Rather, the case law on this matter

establishes that since criminal sexual abuse/assault is personally motivated, it is outside

the scope of employment. There is no evidence to indicate that the acts of Pithyou fell

within the scope of her employment. The matters alleged in this case fall in the category

of intentional tortious acts designed to carry out an independent purpose by Pithyou and

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they thus were not within the course and scope of his employment with Defendant

Lawrence Hall Youth Services. In proceeding to sexually assault and offer drugs to the

minor Plaintiff, John Doe, Pithyou was advancing a completely personal objective. The

sexual assaults could advance no conceivable purpose of Defendant. This Court finds

that Linda Pithyou acted for personal reasons only and thus her acts were beyond the

course and scope of employment and could in no way be interpreted as an act in

furtherance of the business interests of Defendant Lawrence Hall Youth Services.”

¶ 11 Regarding the applicability of the Illinois School Code to the case at bar, the court found:

“The evidence clearly demonstrates that defendant was registered by the Illinois State

Board of Education at the time of plaintiff’s alleged injuries and thus was operating the

school pursuant to the Illinois School Code. As such, defendant is protected by Section

[34-84a] *** in loco parentis status to teachers, certified education employees and other

staff for matters relating to the conduct of the schools and school children. This Court

finds that defendant stands in the shoes of an in loco parentis and thus, the statute confers

immunity from liability for negligence arising out of plaintiff’s actions.”

¶ 12 Thereafter, plaintiff filed a motion for reconsideration, which the court denied. Plaintiff

appeals.

¶ 13 ANALYSIS

¶ 14 Plaintiff contends that the trial court erred in granting the motion to dismiss where

defendant is not entitled to the protection of section 34-84a of the Illinois School Code.2

Alternatively, plaintiff contends that, even if defendant is not entitled to such immunity, the

motion to dismiss should not have been granted where defendant was liable for the behavior

of its employees. For the following reasons, we disagree.

¶ 15 A section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2010)) challenges the legal

sufficiency of a complaint based on defects apparent on its face. Marshall v. Burger King

Corp., 222 Ill. 2d 422, 429 (2006). In reviewing the sufficiency of a complaint, we accept as

true all well-pleaded facts and all reasonable inferences that may be drawn from those facts

and we construe the allegations in the complaint in the light most favorable to the plaintiff.

Marshall, 222 Ill. 2d at 429. A cause of action should not be dismissed pursuant to section

2-615 unless it is clearly apparent that no set of facts can be proved that would entitle the

plaintiff to recovery. Canel v. Topinka, 212 Ill. 2d 311, 318 (2004). We review an order

granting or denying a section 2-615 motion de novo. Marshall, 222 Ill. 2d at 429.

2

Both the parties and the trial court referred to section 24-24 of the Illinois School Code

regarding the issue of Lawrence Hall’s immunity against claims of negligence. Section 24-24 applies

to cities with a population of fewer than 500,000. 105 ILCS 5/24-24 (2010). Section 34-84a, which

is identical in form and substance to section 24-24, applies to cities like Chicago with a population

greater than 500,000. 105 ILCS 5/34-84a (West 2010). There is no substantive difference between

these statutory sections. See Kobylanski v. Chicago Board of Education, 63 Ill. 2d 165, 172 (1976);

Doe v. Chicago Board of Education, 339 Ill. App. 3d 848, 853 (2003). Accordingly, we refer herein

to section 34-84a.

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¶ 16 A section 2-619 motion to dismiss admits the legal sufficiency of the plaintiff’s

complaint but asserts affirmative defenses or other matter that avoids or defeats the plaintiff’s

claim. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). An “ ‘[a]ffirmative matter’ is

something in the nature of a defense that completely negates the cause of action or refutes

crucial conclusions of law or conclusions of material fact contained in or inferred from the

complaint.” Golden v. Mullen, 295 Ill. App. 3d 865, 869 (1997). All properly pleaded facts

are accepted as true and a reviewing court is concerned only with the question of law

presented by the pleadings. Thornton v. Shah, 333 Ill. App. 3d 1011, 1019 (2002). Rulings

on section 2-619 motions are reviewed de novo. DeLuna, 223 Ill. 2d at 59.3

¶ 17 I. The Illinois School Code Applies in This Context

¶ 18 Because the Illinois School Code applies here, the complaint was legally insufficient, and

it was proper for the trial court to grant the motion to dismiss pursuant to section 2-619.

Section 34-84a of the Illinois School Code provides in part:

“Subject to the limitations of all policies established or adopted under Section 14-8.05,

teachers, other certificated educational employees, and any other person, whether or not

a certificated employee, providing a related service for or with respect to a student shall

maintain discipline in the schools, including school grounds which are owned or leased

by the board and used for school purposes and activities. In all matters relating to the

discipline in and conduct of the schools and the school children, they stand in relation of

parents and guardians to the pupils. This relationship shall extend to all activities

connected with the school program, including all athletic and extracurricular programs,

and may be exercised at any time for the safety and supervision of the pupils in the

absence of their parents or guardians.” 105 ILCS 5/34-84a (West 2010).

¶ 19 Section 34-84a of the Illinois School Code extends in loco parentis status to teachers and

other certified educational employees for matters relating to the conduct of the schools and

school children. 105 ILCS 5/34-84a (West 2010); Plesnicar v. Kovach, 102 Ill. App. 3d 867

(1981) (section 34-84a confers upon educators in loco parentis status, and this statute

extends to nondisciplinary as well as disciplinary matters). Since this statute specifically

confers upon educators the status of parent or guardian to the students and since a parent is

not liable for injuries to his child absent wilful and wanton misconduct, it therefore follows

that the same standard applies as between educator and student.

¶ 20 Here, the record includes a sworn affidavit by Mark Nufer, vice president of finance for

Lawrence Hall, in which he avers that defendant is registered with the Illinois State Board

of Education and was approved to provide education services to John Doe during the time

of the alleged occurrences. Nufer also averred that defendant possesses a nonpublic facility

placement contract for plaintiff, which placed him at “Lawrence Hall’s school pursuant to

section 14-7.02 of the Illinois School Code and mandates that Defendant operate the school

pursuant to the Illinois School Code.”

3

The trial court dismissed count II of the amended complaint following oral argument on

May 27, 2010. Here, plaintiff only contests the dismissal of count I for negligent supervision.

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¶ 21 The record also includes a letter sent from the Illinois State Board of Education to the

vice president of Lawrence Hall, stating:

“The evaluation of the Application for Eligibility of Nonpublic Programs to Serve

Students with Disabilities under Section 14-7.02 of the School Code submitted by your

agency is complete. A copy of the approved application and all its required attachments

is enclosed. In accordance with changes to the 23 Illinois Administrative Code 401, your

program has been granted approval for both 2007-2008 and 2008-2009.”

¶ 22 The trial court did not err in finding that defendant falls within the protection of section

34-84a of the Illinois School Code. The evidence shows that defendant was registered by the

Illinois State Board of Education at the time of plaintiff’s alleged injuries, and, accordingly,

was operating a school pursuant to the Illinois School Code. Section 34-84a of the Illinois

School Code confers in loco parentis status to teachers, certified education employees, and

other staff for matters relating to the conduct of the schools and school children. Defendant

stands in the shoes of an in loco parentis, and that status confers immunity from liability for

negligence arising out of defendant’s actions unless plaintiff can prove wilful or wanton

misconduct by defendant.

¶ 23 Plaintiff’s reliance on Sidwell v. Griggsville Community Unit School District No. 4, 146

Ill. 2d 467 (1992), does not persuade us differently. Sidwell is a premises liability case.

Sidwell, 146 Ill. 2d at 469. In Sidwell, the plaintiff alleged that the school district allowed a

rut to form on the school playground and the plaintiff, while attending the school, sustained

injuries when he fell into the rut. Sidwell, 146 Ill. 2d at 469. The trial court granted the school

district’s motion to dismiss the complaint based on the district’s immunity under the School

Code. Sidwell, 146 Ill. 2d at 469. Our supreme court, however, reversed, holding that the

school district’s alleged negligence in allowing the rut to form was distinct from the teacher’s

negligence in allowing the plaintiff to use the rutted part of the playground. Sidwell, 146 Ill.

2d at 473. Therefore, the School Code did not protect the school district from liability for the

negligent acts alleged. Sidwell, 146 Ill. 2d at 473. Sidwell is inapposite to the case at bar

where, unlike Sidwell, plaintiff here does not allege that defendant’s premises contain a

dangerous condition or that it furnished plaintiff with defective equipment. Rather, plaintiff

claims that defendant’s employees negligently supervised him, allowing him to sneak off

campus and engage in illicit activities. The trial court properly held that the School Code bars

such a claim against defendant.

¶ 24 II. The Trial Court Did Not Err in Finding No Respondeat Superior Liability

¶ 25 Even if defendant were not granted immunity under the Illinois School Code, we would

still find that the trial court did not err in granting the motion to dismiss pursuant to section

2-615 of the Code where Illinois law does not recognize a cause of action for negligent

supervision of a student by an educator such as defendant. Plaintiff argues that the trial court

erred in construing count I as “alleging respondeat superior liability as a basis for the claims

of negligence as to defendant Lawrence Hall Youth Services.” According to plaintiff, the

complaint only alleges the negligent supervision by “agents and employees of Lawrence Hall

Youth Services in supervising and monitoring plaintiff during non-school hours” rather than

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the negligence of Linda Pithyou for, among other things, sexually assaulting plaintiff. We

disagree and find that the trial court did not err where the issue of respondeat superior must

necessarily be addressed based on plaintiff’s allegations that defendant, through its “various

agents and employees,” including Pithyou, negligently supervised plaintiff, causing him

injury.

¶ 26 An employer may be held liable for the acts of its employees under the doctrine of

respondeat superior. See Hargan v. Southwestern Electric Cooperative, Inc., 311 Ill. App.

3d 1029, 1031 (2000) (citing Moy v. County of Cook, 159 Ill. 2d 519, 524 (1994)); see also

Stern v. Ritz Carlton Chicago, 299 Ill. App. 3d 674, 677 (1998) (these acts may include

“ ‘ “negligent, wilful, malicious or even criminal acts of its employees” ’ ” (quoting Deloney

v. Board of Education, 281 Ill. App. 3d 775, 784 (1996), quoting Webb v. Jewel Cos., 137

Ill. App. 3d 1004, 1006 (1985))). The employer will be responsible, however, only when the

employee’s acts were committed within the scope of his employment. See Montgomery v.

Petty Management Corp., 323 Ill. App. 3d 514, 517 (2001) (citing Pyne v. Witmer, 129 Ill.

2d 351, 359 (1989)); accord Hargan, 311 Ill. App. 3d at 1031 (it is of no concern whether

employee’s act is intentional or negligent). While “scope of employment” is not precisely

defined, our courts apply the following three criteria as found in the Restatement (Second)

of Agency to determine whether a certain act is within the scope and, thus, attributable to the

employer:

“ ‘(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits; [and]

(c) it is actuated, at least in part, by a purpose to serve the master[/employer.]

***

*** (Restatement (Second) of Agency § 228 (1958).)’ ” Montgomery, 323 Ill. App.

3d at 517 (quoting Pyne, 129 Ill. 2d at 360).

¶ 27 Again, it is only when these criteria are met–when the employee’s acts were committed

within the scope of his employment and in furtherance of the business of the employer–that

an employer will be held responsible for its employee’s actions. See Montgomery, 323 Ill.

App. 3d at 517 (according to Restatement (Second), conduct is not within scope if these

factors are not present); Hargan, 311 Ill. App. 3d at 1031 (it is only when these are met that

employer will be held responsible); Stern, 299 Ill. App. 3d at 677-78 (distinguishing between

“detour” where employee’s deviation for personal reasons is still sufficiently related to

employment so employer can be held liable, and “frolic” where employee’s personal business

is unrelated to employment, exceedingly marked and unusual and therefore unattributable

to employer). The burden is on the plaintiff to show the contemporaneous relationship

between the tortious act and the scope of employment. See Pyne, 129 Ill. 2d at 360;

Montgomery, 323 Ill. App. 3d at 517-18; Hargan, 311 Ill. App. 3d at 1032; Stern, 299 Ill.

App. 3d at 677.

¶ 28 Our holding in Deloney solidifies our view on the particular issue of whether employers

are vicariously liable for sexual assaults committed by their employees. See Stern, 299 Ill.

App. 3d at 679-80 (Deloney “provides an exhaustive review of cases involving ‘scope of

employment’ as a basis for determining whether employers are vicariously liable for sexual

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assaults committed by their employees.”). In the underlying suit involved in that case4, a

truant officer allegedly sexually assaulted a student under the guise of reviewing her

enrollment application. The student filed suit based on these actions, which she claimed

occurred while the officer was employed by the school board and were within the scope of

his employment. In our comprehensive disposition on that case, we began by noting that the

term “scope of employment” excludes conduct by an employee that is solely for his own

benefit. See Deloney, 281 Ill. App. 3d at 784. Then, upon reviewing the facts at hand, we

reasoned that the allegations of sexual misconduct, even if true, had no relation to the

officer’s job duties and were committed, if at all, for his personal gain. See Deloney, 281 Ill.

App. 3d at 786. This made his actions outside the scope of employment “as a matter of law”

and, therefore, not attributable to the board, even though the officer’s employment provided

the opportunity for his misconduct (i.e., using the guise of reviewing the student’s

application). Deloney, 281 Ill. App. 3d at 786, 788 (“by no stretch of the imagination could

his actions be deemed an extension, albeit unlawful, of his functions or responsibilities as

a truant officer”). Ultimately, based on this, we held that criminal sexual assault, by its very

nature, precludes the conclusion that it was committed within the scope of employment under

the doctrine of respondeat superior and, thus, an employer cannot be responsible when an

employee is said to have committed it. See Deloney, 281 Ill. App. 3d at 783, 786 n.5 (“in

Illinois the cases are clear that as a matter of law acts of sexual assault are not within the

scope of employment”).

¶ 29 This holding was later affirmed in Stern, which also reexamined many of the vicarious

liability cases involving sexual assaults upon which Deloney relied. In Stern, two women

claimed that a hotel’s masseurs sexually assaulted them during their massages and brought

suit based on these actions against the hotel asserting vicarious liability. The Stern court,

citing Deloney and its progeny, found, as a matter of law, that the hotel was not liable for the

actions of the masseurs since those actions could not be within the scope of their

employment. See Stern, 299 Ill. App. 3d at 680-81. This was because, concluded the court,

there was no way to interpret the sexual assaults by the masseurs-employees as acts in

furtherance of the business interest of, or even foreseeable by, the employer-hotel. See Stern,

299 Ill. App. 3d at 679-81 (and cases cited therein holding same); accord Randi F. v. High

Ridge YMCA, 170 Ill. App. 3d 962, 967 (1988) (dismissal of the plaintiffs’ complaint for

failure to state cause of action was proper where plaintiffs alleged day care center was

responsible for sexual assault of girl by teacher’s aide pursuant to respondeat superior;

molestation was deviation from aide’s scope of employment and had no relation to center’s

4

Deloney principally involved the recovery of attorney fees and costs as against a school

board incurred by a law firm in its successful representation of the board’s former employee in a

civil rights action. The trial court granted summary judgment in favor of the board and we affirmed,

finding that while the board’s duties to indemnify the employee were triggered, the acts alleged

against the employee were outside the scope of his employment such that the board owed no

statutory duty to defend him in the underlying case, which involved an alleged sexual assault. See

Deloney, 281 Ill. App. 3d at 786. It is this latter portion of the holding which applies to the instant

case and with which we concern ourselves here.

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business); Webb, 137 Ill. App. 3d at 1008 (sexual molestation of the plaintiff by supermarket

security guard during search of the plaintiff was a deviation from job duties such that it had

no relation to furtherance of business and supermarket could not be held liable); Hoover v.

University of Chicago Hospitals, 51 Ill. App. 3d 263, 266 (1977) (physician’s sexual assault

of patient not act in furtherance of hospital’s business; therefore, hospital could not be liable

and patient’s complaint against it was properly dismissed for failing to state cause of action).

¶ 30 We find no reason to deviate from this established line of case law here. The allegations

plaintiff makes against Pithyou cannot be imputed to defendant. As Deloney and Stern make

clear, sexual assault by its very nature precludes a conclusion that it occurred within the

employee’s scope of employment under the doctrine of respondeat superior. See Deloney,

281 Ill. App. 3d at 783, 786 n.5 (“in Illinois the cases are clear that as a matter of law acts

of sexual assault are not within the scope of employment”). That is, Pithyou’s alleged sexual

assault of plaintiff cannot be said to have furthered defendant’s business. Accordingly, as a

matter of law, defendant is not liable for Pithyou’s actions since they were not within the

scope of her employment. The trial court correctly determined that the conduct alleged

“fall[s] in the category of intentional tortious acts designed to carry out an independent

purpose by Pithyou and they thus were not within the course and scope of [her] employment

with defendant.”

¶ 31 In addition, defendant is not liable for personal injuries sustained by a student absent

wilful and wanton misconduct. Kobylanski v. Chicago Board of Education, 63 Ill. 2d at 173;

Doe v. Chicago Board of Education, 339 Ill. App. 3d at 853. Here, plaintiff does not allege

wilful or wanton misconduct, but rather alleges that he and defendant had a “special

relationship” and that, as a voluntary custodian, defendant owed a duty to protect plaintiff

from criminal attacks by its employee.5 However, schools and teachers “cannot supervise

each and every child at all times while in school or while engaged in a school-related

activity.” Albers v. Community Consolidated No. 204 School, 155 Ill. App. 3d 1083, 1086

(1987). Nor are schools and teachers required to guard against the unanticipated willful and

wanton misconduct by others. See Albers, 155 Ill. App. 3d at 1086 (“schools and teachers

cannot be charged with the duty of anticipating and guarding against the wilful and wanton

misconduct by other children who suddenly and apparently without provocation attack other

students”).

¶ 32 Plaintiff’s reliance on Wallace v. Smyth, 203 Ill. 2d 441 (2002), to argue that the Illinois

School Code does not apply to a residential care facility fails to persuade us differently.

Wallace, however, is inapposite to the case at bar where Wallace did not involve an

education facility subject to the Illinois School Code, but, rather, a licensed residential child

care facility for state wards. Wallace, 203 Ill. 2d at 443.

¶ 33 The trial court did not err where it granted defendant’s motion to dismiss pursuant to

sections 2-619 and 2-615 of the Code.

5

To the extent that plaintiff could argue that he alleged willful or wanton misconduct via his

count II allegations for the intentional infliction of emotional distress, he has expressly waived

appeal of that issue.

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¶ 34 CONCLUSION

¶ 35 For the foregoing reasons, we affirm the decision of the circuit court of Cook County.

¶ 36 Affirmed.

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