                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                 Jane Doe v. Village of Schaumburg, 2011 IL App (1st) 093300




Appellate Court              JANE DOE, Individually and as Legal Guardian of Minor Doe, a
Caption                      Minor; AMY ROE, a Minor, by her Legal Guardian and Next Friend,
                             Lee Roe; ANN ROE, a Minor, by her Parent and Next Friend, Lee Roe;
                             JANE ROE, a Minor, by her Parents and Next Friends, Mary Roe and
                             John Roe; MARY ROE, a Minor, by her Parents and Next Friends, Jane
                             Roe and Joe Roe, Plaintiffs-Appellants, v. THE VILLAGE OF
                             SCHAUMBURG, THE SCHAUMBURG POLICE DEPARTMENT,
                             DOUG ULMER, JOHN JAMESON, ART KWIATKOWSKI, THE
                             VILLAGE OF HOFFMAN ESTATES, THE HOFFMAN ESTATES
                             POLICE DEPARTMENT, and GARY SEARS, Defendants-Appellees
                             (Township High School District 211, Tom McNamara, Theresa Busch,
                             Jackie Gatti n/k/a Jackie Zydek, Defendants).



District & No.               First District, Second Division
                             Docket Nos. 1–09–3300, 1–09–3301, 1–09–3302, 1–09–3303,
                             1–09–3471 cons.


Filed                        June 30, 2011
Rehearing denied             August 1, 2011
Held                         The trial court properly dismissed with prejudice the complaints of
(Note: This syllabus         multiple plaintiffs alleging that multiple defendants, including police
constitutes no part of the   officers, detectives and police departments, failed to report the arrest
opinion of the court but     of a student on a charge of aggravated criminal sexual assault of a minor
has been prepared by the     child to the school plaintiffs attended pursuant to an agreement that
Reporter of Decisions for    required the reporting of such incidents, and that the person arrested
the convenience of the       was a student in plaintiffs’ school, was in a class with plaintiffs and
reader.)                     sexually assaulted them, since defendants were immune from liability
                             pursuant to the Tort Immunity Act.
Decision Under              Appeal from the Circuit Court of Cook County, No. 06–L–46 through
Review                      06–L–50; the Hon. Diane Larsen, Judge, presiding.



Judgment                    Affirmed.


Counsel on                  Eckhoff & Massarelli, P.C. (Catherine M. Massarelli, of counsel), and
Appeal                      Law Offices of Lynn D. Dowd (Lynn D. Dowd and Francis J. Leyhane
                            III, of counsel), both of Wheaton, and Dudley & Lake, of Chicago
                            (Kevin J. Golden, of counsel), for appellants.

                            John E. Norton & Associates, LLC, of Wheaton (John E. Norton, of
                            counsel), Arnstein & Lehr LLP, of Hoffman Estates (Arthur L. Janura,
                            of counsel), and Arnstein & Lehr LLP, of Chicago (Hal R. Morris,
                            Jenifer H. Caracciolo, and Christina E. Lutz, of counsel), for appellees.


Panel                       JUSTICE HARRIS delivered the judgment of the court, with opinion.
                            Presiding Justice Cunningham and Justice Karnezis concurred in the
                            judgment and opinion.



                                              OPINION

¶1          Plaintiffs Jane Doe, individually and as legal guardian of Minor Doe (Doe plaintiffs);
        Amy Roe, a minor, by her legal guardian and next friend Lee Roe; Ann Roe, a minor, by her
        parent and next friend Lee Roe; Jane Roe, a minor, by her parents and next friends Mary and
        John Roe; and Mary Roe, a minor, by her parents and next friends Jane and Joe Roe (Roe
        plaintiffs), appeal the order of the circuit court dismissing their complaints against defendants
        the Village of Schaumburg, the Schaumburg police department, Detective Doug Ulmer,
        Detective John Jameson, and Detective Art Kwiatkowski (the Schaumburg defendants), and
        the Village of Hoffman Estates, the Hoffman Estates police department, and Gary Sears (the
        Hoffman Estates defendants) pursuant to sections 2–619 and 2–615 of the Code of Civil
        Procedure (735 ILCS 5/2–619, 2–615 (West 2006)). On appeal, the plaintiffs contend that
        the trial court erred because (1) defendants owed them a duty based on sections 22–20 and
        10–20.14(b) of the Illinois School Code (School Code) (105 ILCS 5/22–20, 10–20.14(b)
        (West 2006)), existing reciprocal reporting agreements, and the long-standing practice of
        municipalities sharing information regarding student arrests; (2) defendants breached that
        duty; and (3) the breach proximately caused their injuries. Plaintiffs further argue that section
        4–102 of the Local Governmental and Governmental Employees Tort Immunity Act (Act)

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     (745 ILCS 10/4–102 (West 2006)) does not immunize defendants in this case. For the
     reasons hereinafter set forth, we affirm.

¶2                                       JURISDICTION
¶3        The trial court entered its order dismissing the complaints against the Schaumburg and
     Hoffman Estates defendants on October 9, 2009. Since the order did not dismiss the claims
     against all parties, the trial court was required to make a Rule 304(a) (Ill. S. Ct. R. 304(a)
     (eff. Feb. 26, 2010)) finding that there is no just reason for delaying either enforcement or
     appeal. The trial court made the required finding on November 2, 2009. Plaintiffs filed their
     notice of appeal on December 1, 2009. Accordingly, this court has jurisdiction pursuant to
     Illinois Supreme Court Rules 303 (Ill. S. Ct. R. 303 (eff. May 30, 2008)), and 304(a)
     governing appeals from final judgments entered below.

¶4                                       BACKGROUND
¶5       On July 21, 2004, Schaumburg police arrested Christopher Girard for aggravated
     criminal sexual assault of a minor child. Defendants Ulmer, Jameson and Kwiatkowski
     participated in Girard’s arrest and investigation of his case. They also had information that
     Girard was attending summer school at Hoffman Estates High School at the time, but they
     did not report his arrest to the school district or to the principal of the high school. Instead,
     on October 15, 2004, Ulmer informed Hoffman Estates police officer Gary Sears of Girard’s
     arrest. Sears was the resource officer assigned to District 211. Sears did not report the arrest
     to school officials despite the existence of a reciprocal reporting agreement between Hoffman
     Estates and Township High School District 211 (District 211), which includes Hoffman
     Estates High School. The agreement provided that “police officials will report to school
     officials *** with respect to a minor enrolled in one of the School District’s schools who has
     been taken into custody or arrested for” criminal sexual assault, in accordance with section
     22–20 of the School Code.
¶6       From August to October 2005, Girard was enrolled in a physical science class at
     Hoffman Estates High School. Minor Doe and minors Amy, Ann, Jane, and Mary Roe, who
     were enrolled in a special education program at the high school, also attended the class.
     During the class, Girard forcibly engaged in various acts with them such as touching their
     “breasts, vagina and buttock” and anal and vaginal penetration. In August 2007, Girard
     pleaded guilty to a number of sexual assault charges, including charges of assaulting girls at
     Hoffman Estates High School in 2005.
¶7       Plaintiffs each filed a complaint against District 211; Theresa Busch, the principal of
     Hoffman Estates High School; two teachers, Tom McNamara and Jackie Zydek; the Village
     of Schaumburg; the Schaumburg police department; and three individual police officers,
     Detectives Ulmer, Jameson, and Kwiatkowski. Plaintiffs later added claims against the
     Village of Hoffman Estates, the Hoffman Estates police department, and Gary Sears. At issue
     in this appeal are the Doe plaintiffs’ fifth amended complaint and the Roe plaintiffs’ fourth
     amended complaints. In the Doe plaintiffs’ fifth amended complaint, counts VII through XII
     contained allegations of liability against the various Schaumburg defendants based on section

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       1983 of title 42 of the United States Code (42 U.S.C. § 1983 (2006)), section 15 of the
       Rights of Married Persons Act (750 ILCS 65/15 (West 2006)), negligence, and willful and
       wanton misconduct. Counts XIII through XX contained allegations against the Hoffman
       Estates defendants based on the same theories. The fourth amended complaints of all the Roe
       plaintiffs are essentially identical and contained allegations against the Schaumburg
       defendants in counts VIII through XI, and XVI and XVII. Counts XII through XV pertained
       to allegations against the Hoffman Estates defendants. These counts based liability on section
       1983, negligence, and willful and wanton misconduct.
¶8         Defendants filed motions to dismiss the Doe plaintiffs’ fifth amended complaint and the
       Roe plaintiffs’ fourth amended complaints pursuant to sections 2–615 and 2–619. In the
       motions, defendants argued that the complaints did not allege facts showing that they owed
       plaintiffs any duties, and in any event, sections 4–102 and 2–205 of the Act immunized them
       from liability for plaintiffs’ claims. The trial court granted defendants’ motions to dismiss
       with prejudice on October 9, 2009, and on November 2, 2009, the trial court made the
       required Rule 304(a) finding. 1 Plaintiffs filed this timely appeal.

¶9                                            ANALYSIS
¶ 10       Plaintiffs filed a single brief on appeal focusing on the tort claims against defendants. In
       their brief, plaintiffs alleged that defendants owed them a duty based on sections 22–20 and
       10–20.14(b) of the School Code and the respective reciprocal reporting agreements entered
       into with District 211 pursuant to section 22–20. They contended that defendants breached
       their statutory duties by failing to notify appropriate District 211 administrators of Girard’s
       arrest and failing to fulfill their obligation to set up reciprocal reporting agreements with
       District 211. Quoting Abbasi v. Paraskevoulakos, 187 Ill. 2d 386, 394 (1999), they argued
       that “[i]n a common law negligence action, a violation of a statute or ordinance designed to
       protect human life or property is prima facie evidence of negligence.” Plaintiffs further
       contended that plaintiffs are members of a class the School Code was enacted to protect, their
       injuries were of the type the statute intended to shield them against, and the statutory
       violations proximately caused their injuries. Plaintiffs also alleged a duty based on
       defendants’ long-standing practice of sharing information about the arrests of students
       enrolled in District 211 schools. They argued that in light of this tradition, defendants’ failure
       to report Girard’s arrest constituted negligent performance of a voluntary undertaking.
¶ 11       We agree with plaintiffs that a violation of a statute such as the School Code can give rise
       to a tort claim. See Noyola v. Board of Education, 179 Ill. 2d 121, 130-31 (1997).
       Furthermore, plaintiffs’ well-reasoned arguments may very well support their contention that
       the School Code imposes certain duties upon those parties subject to its provisions. However,
       we need not address whether defendants here owed a statutory or common-law duty to
       plaintiffs. The existence of a duty and the applicability of an immunity are separate issues.
       Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 487 (2002).


               1
               Plaintiffs’ claims against defendants District 211, Busch, McNamara, and Zydek, however,
       remain before the trial court and those defendants are not parties to this appeal.

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       Therefore, even if defendants owed such a duty and breached that duty, provisions of the Act
       may immunize them from liability. A reviewing court may “forgo the determination of issues
       unnecessary to the outcome of a case.” DeSmet v. County of Rock Island, 219 Ill. 2d 497, 509
       (2006); see also Green v. Chicago Board of Education, 407 Ill. App. 3d 721 (2011) (the
       appellate court assumed, arguendo, that the Board owed Green a duty in order to reach the
       issue of whether the Board can claim immunity under the Act). For the reasons that follow,
       we hold that sections 4–102 and 2–205 of the Act immunize defendants from the tort liability
       alleged in plaintiffs’ complaints.
¶ 12        Involuntary dismissal under section 2–619 is proper where the claim asserted “is barred
       by other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS
       5/2–619(a)(9) (West 2008)). The defense of immunity under the Act is an affirmative matter
       properly raised in a section 2–619 motion to dismiss. Van Meter v. Darien Park District, 207
       Ill. 2d 359, 367 (2003). When reviewing a dismissal pursuant to section 2–619, the court
       views all pleadings and supporting documents in the light most favorable to the nonmoving
       party. Id. at 367-68. We review a section 2–619 dismissal de novo. Epstein v. Chicago Board
       of Education, 178 Ill. 2d 370, 383 (1997).
¶ 13        The purpose of the Act is to shield “local public entities and public employees from
       liability arising from the operation of government.” 745 ILCS 10/1–101.1 (West 2006). “ ‘By
       providing immunity, the legislature sought to prevent the diversion of public funds from their
       intended purpose to the payment of damage claims.’ ” Village of Bloomingdale v. CDG
       Enterprises, Inc., 196 Ill. 2d 484, 490 (2001) (quoting Bubb v. Springfield School District
       186, 167 Ill. 2d 372, 378 (1995)). We interpret the Act as a whole, and construe each
       provision in relation to every other provision. Zimmerman v. Village of Skokie, 183 Ill. 2d
       30, 56 (1998). Government entities and employees bear the burden of proving immunity
       under the Act. Van Meter, 207 Ill. 2d at 370.
¶ 14        Section 4–102 of the Act provides:
                     “Neither a local public entity nor a public employee is liable for failure to
                establish a police department or otherwise provide police protection service or, if
                police protection service is provided, for failure to provide adequate police protection
                or service, failure to prevent the commission of crimes, failure to detect or solve
                crimes, and failure to identify or apprehend criminals.” 745 ILCS 10/4–102 (West
                2006).
       In DeSmet, our supreme court determined that section 4–102 “is comprehensive in the
       breadth of its reach, addressing situations where no police protection is provided *** and
       those in which inadequate protection is provided.” DeSmet, 219 Ill. 2d at 515. Furthermore,
       since the provision does not contain an exception for willful and wanton misconduct, the
       legislature intended to immunize defendants from both negligence and willful and wanton
       misconduct. DeSmet, 219 Ill. 2d at 515; see also Anthony v. City of Chicago, 382 Ill. App.
       3d 983, 989 (2008).
¶ 15        The DeSmet court, however, left open the slight possibility that section 2–202 of the Act
       provided a willful and wanton exception to section 4–102 as evidenced by Doe v. Calumet
       City, 161 Ill. 2d 374 (1994). It acknowledged the holding in Doe that the plaintiff stated a


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       cognizable claim for willful and wanton misconduct against Officer Horka pursuant to
       section 2–202. DeSmet, 219 Ill. 2d at 518. Section 2–202 states:
                    “A public employee is not liable for his act or omission in the execution or
               enforcement of any law unless such act or omission constitutes willful and wanton
               conduct.” 745 ILCS 10/2–202 (West 2006).
       In distinguishing Doe from the case before it, the DeSmet court found the fact that Officer
       Horka “exercised control over the crime scene and over other officers” significant; therefore,
       the Doe court’s application of section 2–202 as an exception to section 4–102 was “fact-
       specific” to that particular case. DeSmet, 219 Ill. 2d at 519. Doe created confusion as to
       whether section 2–202 articulated a willful and wanton exception to provisions such as
       4–102, and our supreme court revisited the issue in a recent decision. In Ries v. City of
       Chicago, 242 Ill. 2d 205 (2011), pet. for reh’g pending, the court explicitly determined that
       to the extent Doe holds that section 2–202 provides a willful and wanton exception to
       immunities under the Act, it “is no longer good law.” Ries, 242 Ill. 2d at 227. The Ries court
       reiterated its long-held view that “[w]hen the plain language of an immunity provision in the
       Tort Immunity Act contains no exception for willful and wanton misconduct,” the legislature
       intended to provide immunity against both negligence and willful and wanton misconduct.
       (Internal quotation marks omitted.) Ries, 242 Ill. 2d at 224. Section 4–102 contains no
       exception for willful and wanton misconduct. If the provision applies here, defendants have
       unqualified immunity against plaintiffs’ claims.
¶ 16       Plaintiffs contend that section 4–102 does not apply because the establishment of a police
       department or the provision of police protection services is not at issue in their case. Rather,
       they question only the failure of the villages and police departments to report Girard’s arrest
       to District 211 as required by section 22–20 of the School Code. We look to the tort
       allegations contained in plaintiffs’ complaint to determine whether their claims fall under a
       provision of the Act. See DeSmet, 219 Ill. 2d at 513. In their complaints, plaintiffs alleged
       that the municipal defendants intentionally and deliberately failed to properly train and
       supervise their employees, including Detectives Ulmer, Jameson, and Kwiatkowski,
       regarding the requirements of the reciprocal reporting agreements with District 211. They
       also alleged that defendants were aware of an existing custom or policy among their
       employees to refuse to abide by the reciprocal agreements. The failure to properly train and
       supervise employees, or to have in force procedures to ensure the adequate performance of
       their duties, “implicate[s] the structural adequacy of police protection services” provided by
       defendants, and such failure is immune from liability under section 4–102. DeSmet, 219 Ill.
       2d at 513-14.
¶ 17       Furthermore, plaintiffs’ allegations that defendants intentionally and deliberately failed
       to abide by the reciprocal reporting agreements, and intentionally and deliberately ignored
       the requirement to notify District 211 that a student committed an aggravated criminal sexual
       assault on a minor, implicate section 2–205 of the Act. Section 2–205 provides:
                    “A public employee is not liable for an injury caused by his adoption of, or failure
               to adopt, an enactment, or by his failure to enforce any law.” 745 ILCS 10/2–205
               (West 2006).


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       Plaintiffs disagree that the Act applies, arguing that their complaints alleged defendants
       failed to follow, rather than failed to enforce, the law. Plaintiffs’ complaints alleged that
       defendants did not follow the mandates of the School Code. The failure to follow the
       provisions of a statute is, in essence, the failure to enforce the statute. See Bowler v. City of
       Chicago, 376 Ill. App. 3d 208, 217 (2007) (failure to comply with provisions of the building
       code is the same as failure to enforce the building code). Furthermore, section 2–205, like
       section 4–102 addressed above, does not contain an exception for willful and wanton
       misconduct. Accordingly, under section 2–205 defendants are also immune from liability for
       claims of negligence and willful and wanton misconduct in failing to enact or enforce any
       law. The trial court properly dismissed plaintiffs’ claims against defendants.
¶ 18       For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 19       Affirmed.




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