                             2014 IL App (2d) 130685
                                  No. 2-13-0685
                           Opinion filed August 22, 2014
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

CARLOS MALINKSI,                       ) Appeal from the Circuit Court
                                       ) of Lake County.
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 12-L-272
                                       )
GRAYSLAKE COMMUNITY HIGH               )
SCHOOL DISTRICT 127,                   ) Honorable
                                       ) Jorge L. Ortiz,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
       Justices Birkett and Spence concurred in the judgment and opinion.

                                           OPINION

¶1     On April 10, 2012, plaintiff, Carlos Malinksi, filed a complaint against defendant,

Grayslake Community High School District 127. Plaintiff, a student at Grayslake North High

School, alleged that other students subjected him to bullying and that defendant failed to provide

a safe environment, proximately causing plaintiff’s injuries. The trial court granted defendant’s

motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (the Code) (735

ILCS 5/2-619.1 (West 2012)), and plaintiff appeals. We affirm.

¶2     The pleadings reflect that plaintiff was a student at Grayslake North High School.

During school hours and on school property, other students subjected him to verbal and physical

abuse including being punched and pushed. Plaintiff was attacked on November 16, 2009, and
2014 IL App (2d) 130685


plaintiff had previously informed school officials “on numerous occasions” about being bullied

by other students.    Specifically, “[t]hroughout 2008 and 2009,” plaintiff had several email

exchanges and meetings with Dean Athena Toliopoulos, warning her that he was in danger due

to bullying and that he feared that the violence against him would escalate if the problem was not

addressed. Plaintiff also had “continuous contact” with Joseph Volante, a school counselor.

Plaintiff told Volante that other students were bullying him on school grounds and that the

physical abuse would not stop unless “action was taken.” On November 6, 2009, plaintiff

emailed Volante, advising him that the bullying was getting worse and that he wanted to commit

suicide. On November 12, 2009, plaintiff met with school administrators and told them that

other students were subjecting him to bullying.

¶3     Plaintiff’s complaint alleged that defendant had a duty to provide a safe environment and

that defendant failed to do so by “[w]illfully, wantonly, and with reckless disregard for

[plaintiff’s safety]” ignoring plaintiff’s warnings of bullying by other students and “allow[ing]

[p]laintiff to be beaten outside of his classroom.” Plaintiff alleged that, as a result of defendant’s

reckless disregard for his safety, plaintiff suffered injuries “both in mind and body” and will have

to pay “large sums of money” for medical care.

¶4     On April 11, 2013, defendant filed a motion to dismiss plaintiff’s second amended

complaint pursuant to section 2-619.1 of the Code. In relevant part, defendant argued that it was

entitled to immunity under sections 2-201 and 3-108(b) of the Local Governmental and

Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/2-201, 13-

108(b) (West 2012)). Defendant argued that section 3-108(b) immunized its alleged failure to

properly supervise plaintiff’s interactions with students. Defendant also argued that it had

immunity under section 2-201 because “dealing with student bullying [was] exactly the type of

discretionary decision for which [s]ection 2-201 of the Tort Immunity Act provides absolute

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2014 IL App (2d) 130685


immunity.” On June 5, 2013, the trial court granted defendant’s motion to dismiss pursuant to

section 2-619(a)(9) of the Code (735 ILCS 2-619(a)(9) (West 2012)). Plaintiff timely appealed.

¶5     Plaintiff’s only contention is that the trial court erred in granting defendant’s motion to

dismiss. Plaintiff argues that section 2-201 of the Tort Immunity Act is inapplicable because,

although defendant exercised its discretion in adopting an anti-bullying policy, carrying out that

policy was a ministerial act that is not immunized. Plaintiff further argues that the trial court

erred because defendant failed to attach supporting evidence to prove its affirmative defense.

¶6     Section 2-619.1 of the Code provides that motions with respect to pleadings pursuant to

sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2012)) may be filed

together as a single motion. 735 ILCS 5/2-619.1 (West 2012). A motion to dismiss pursuant to

section 2-615 of the Code tests the legal sufficiency of the complaint, whereas a motion to

dismiss under section 2-619 admits the legal sufficiency of the complaint but asserts an

affirmative defense that defeats the claim. Solaia Technology, LLC v. Specialty Publishing Co.,

221 Ill. 2d 558, 578-79 (2006). In considering a combined motion to dismiss pursuant to section

2-619.1, we accept all well-pleaded facts in the complaint as true, drawing all reasonable

inferences from those facts in favor of the nonmoving party. Morris v. Harvey Cycle & Camper,

Inc., 392 Ill. App. 3d 399, 402 (2009). When reviewing a decision to grant a motion pursuant to

section 2-615, our inquiry is whether the allegations of the complaint, construed in the light most

favorable to the nonmoving party, are sufficient to establish a cause of action upon which relief

may be granted. Weidner v. Karlin, 402 Ill. App. 3d 1084, 1086 (2010). Under section 2-

619(a)(9), our inquiry is whether an affirmative matter, i.e., “some kind of defense ‘other than a

negation of the essential allegations of the plaintiff’s cause of action,’ ” defeats the claim. Smith

v. Waukegan Park District, 231 Ill. 2d 111, 120-21 (2008) (quoting Kedzie & 103rd Currency

Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993)). Our review under either section is de

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2014 IL App (2d) 130685


novo (King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 12 (2005)), and we can

affirm on any basis present in the record (Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.

2d 248, 261 (2004)).

¶7     The Tort Immunity Act serves to protect local entities and public employees from

liability arising from the operation of government. Van Meter v. Darien Park District, 207 Ill.

2d 359, 368 (2003). By providing immunity, the legislature sought to prevent the diversion of

funds from their intended purpose to the payment of damages claims.              Doe v. Village of

Schaumburg, 2011 IL App (1st) 093300, ¶ 13.            The immunities afforded under the Tort

Immunity Act serve as affirmative defenses, which, if properly raised and proven, bar a

plaintiff’s right to recovery. Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 43-44 (1998). The

Tort Immunity Act does not create duties, but instead grants immunities and defenses. Hascall v.

Williams, 2013 IL App (4th) 121131, ¶ 20. Thus, whether a local entity owed a duty of care and

whether that entity enjoyed immunity are separate questions. Id. “Once a court determines that

a duty exists, it then addresses whether the Tort Immunity Act applies.” Id.

¶8     Section 2-201 of the Tort Immunity Act provides:

       “Except as otherwise provided by Statute, a public employee serving in a position

       involving the determination of policy or the exercise of discretion is not liable for an

       injury resulting from his act or omission in determining policy when acting in the

       exercise of such discretion even though abused.” 745 ILCS 10/2-201 (West 2012).

Section 2-109 provides that a local public entity is immunized from liability for an injury

resulting from an employee’s act or omission where the employee is not liable. 745 ILCS 10/2-

109 (West 2012). Therefore, sections 2-201 and 2-109 grant absolute immunity to public entities

for the performance of discretionary functions (Kennell v. Clayton Township, 239 Ill. App. 3d

634, 640 (1992)), but not ministerial functions (Village of Itasca v. Village of Lisle, 352 Ill. App.

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2014 IL App (2d) 130685


3d 847, 859 (2004)). The distinction between a discretionary act and a ministerial act must be

made on a case-by-case basis, and courts have recognized that discretionary acts are those that

are unique to a particular public office, whereas ministerial acts are those that a person performs

based on a given set of facts, in a prescribed manner, in accordance with a mandate of legal

authority, and without reference to the official’s discretion as to the propriety of that act. Id.

(citing Snyder v. Curran Township, 167 Ill. 2d 466, 474 (1995)).

¶9     Prior Illinois cases have discussed school bullying in the context of the Tort Immunity

Act. In Albers v. Breen, 346 Ill. App. 3d 799 (2004), the plaintiffs alleged that a minor was

bullied by three male students. Id. at 801. The minor’s mother complained to the school’s

principal, and the minor underwent counseling from a school social worker. Id. at 801-02. The

social worker revealed the bullying students’ names to the principal, allegedly causing the minor

to suffer from emotional distress. Id. at 802. The minor and his parents sued the school district

and the individual defendants. Id.

¶ 10   The reviewing court affirmed the trial court’s dismissal of the plaintiffs’ lawsuit under

section 2-619 of the Code. The court noted the distinction between discretionary and ministerial

acts, emphasizing that “[w]hile the outer limits of the definition of ‘discretionary’ are murky, it

encompasses a wide range of governmental behavior.” Id. at 808. The court concluded:

       “Certainly, the way that a principal handles an instance of bullying in his school falls

       within the definition [of a discretionary act]; any student who has been sent to the

       principal’s office could attest that he has broad discretion in how to handle such

       situations.” Id.

¶ 11   More recently, in Hascall, the reviewing court considered whether section 2-201 of the

Tort Immunity Act provided the defendants, a school district and staff members, with immunity

from liability for their alleged failure to respond to a student’s complaint that other students

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2014 IL App (2d) 130685


bullied her. Hascall, 2013 IL App (4th) 121131, ¶¶ 1, 11. The student, who was in the fourth

grade, complained that other students bullied her. Id. ¶ 1. The student’s mother reported to the

school’s principal a “ ‘bullying situation’ ” involving the student and her classmates. Id. ¶ 4. In

a letter response, the principal noted that the school takes reports of bullying “ ‘very seriously’ ”

and attached a copy of the “ ‘school district’s policy.’ ” Id. The mother met with the principal

and the school’s superintendent, and after another bullying incident the principal told the

student’s mother that she would contact the bullying students’ parents and “ ‘take appropriate

disciplinary action.’ ” Id. ¶¶ 4-6. The alleged bullying continued and the student’s mother

requested another meeting with the superintendent, the principal, and the student’s teacher. Id.

¶¶ 7-9. The superintendent denied that request, advising the student’s mother that “ ‘[w]e will

handle this situation.’ ” Id. ¶ 9. The plaintiffs, the student and her mother, alleged that the

continued bullying and inaction by school personnel caused the student to suffer from

nightmares, physical injuries, mental anguish, and emotional distress, among other things. Id.

¶ 10. The defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code,

asserting that they were immune from liability under sections 2-201 and 2-109 of the Tort

Immunity Act. Id. ¶ 11. The trial court granted the defendants’ motion. Id. ¶ 12.

¶ 12    The reviewing court affirmed the trial court’s dismissal. In doing so, the court rejected

the plaintiffs’ argument that immunity did not attach because the defendants were performing

ministerial acts prescribed by a school board anti-bullying policy. Id. ¶¶ 24-25. The court noted

that the school board’s anti-bullying policy gave the superintendent or his designee responsibility

for developing and maintaining a program that prevents bullying. Id. ¶ 28. Nonetheless, “the

policy [did] not mandate a particular response to a specific set of circumstances.              The

determination of whether bullying has occurred and the appropriate consequences and remedial

action [were] discretionary acts under these facts.” Id.

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2014 IL App (2d) 130685


¶ 13   We find the reasoning in Albers and Hascall persuasive. In doing so, we reject plaintiff’s

argument that the act of “carrying out” an anti-bullying policy is a ministerial act because the

School Code left defendant with “no discretion regarding whether *** to allow bullying in [its]

school.” We recognize that section 27-23.7(d) of the School Code mandates that each school

district “create and maintain a policy on bullying.”        105 ILCS 5/27-23.7(d) (West 2012).

However, as the court in Hascall observed, an anti-bullying policy is not required to mandate a

particular response to a specific set of circumstances. Hascall, 2013 IL App (4th) 121131, ¶ 28.

Instead, a policy may afford a school district with the discretion to determine whether bullying

has occurred, what consequences will result, and any appropriate remedial actions.                Id.

Therefore, the implementation of an anti-bullying policy under section 27-23.7(d) does not

necessarily render defendant’s actions ministerial.

¶ 14   Moreover, we note that, although plaintiff’s second amended complaint referenced

defendant’s anti-bullying policy, that policy was not attached to the complaint. Thus, we cannot

determine whether defendant’s policy required a particular response to the circumstances alleged

in this case; or whether, as in Hascall, the policy afforded defendant discretion to determine

when bullying has occurred and any appropriate action. In the absence of the policy, we are

persuaded by the holding in Albers and agree with that court’s conclusion that how a school

official handles an instance of bullying fits within the definition of a discretionary act. See

Albers, 346 Ill. App. 3d at 808.

¶ 15   Finally, we reject plaintiff’s argument that the trial court erred because defendant’s

asserted affirmative matter was not apparent on the face of the complaint and defendant failed to

submit supporting evidence. As defendant notes, plaintiff did not object before the trial court to

defendant’s failure to attach an affidavit or other evidence, and plaintiff is not permitted to raise

that objection for the first time on appeal. Setliff v. Reinbold, 73 Ill. App. 2d 208, 212 (1966)

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2014 IL App (2d) 130685


(holding that, even if an affidavit was required to be attached to a motion to dismiss, because the

plaintiffs did not object at any time before the trial court to the form or substance of the motion

to dismiss, they were not permitted to raise that point on appeal).

¶ 16   For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 17   Affirmed.




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