                                Illinois Official Reports

                                       Appellate Court



                  Malinksi v. Grayslake Community High School District 127,
                                   2014 IL App (2d) 130685



Appellate Court           CARLOS MALINKSI, Plaintiff-Appellant, v. GRAYSLAKE
Caption                   COMMUNITY HIGH SCHOOL DISTRICT 127, Defendant-
                          Appellee.


District & No.            Second District
                          Docket No. 2-13-0685


Filed                     August 22, 2014



Held                       The trial court properly dismissed plaintiff’s complaint alleging that
(Note: This syllabus he was subjected to bullying and that defendant school district caused
constitutes no part of the plaintiff’s injuries by failing to provide a safe environment on the
opinion of the court but ground that defendant was immune from liability under sections 2-201
has been prepared by the and 3-108(b) of the Tort Immunity Act, notwithstanding plaintiff’s
Reporter of Decisions contention that carrying out the district’s anti-bullying policy was a
for the convenience of ministerial act that was not immunized, since the policy did not
the reader.)               mandate a particular response to a specific set of circumstances;
                           rather, the policy gave the district the discretion to determine whether
                           bullying occurred, what the consequences would be, and what
                           remedial action would be appropriate.



Decision Under            Appeal from the Circuit Court of Lake County, No. 12-L-272; the
Review                    Hon. Jorge L. Ortiz, Judge, presiding.



Judgment                  Affirmed.
     Counsel on                Theodore A. Gilbert and Alex C. Wimmer, both of Botto Gilbert
     Appeal                    Gehris Lancaster, P.C., of Crystal Lake, for appellant.

                               Kimberly A. Jansen and Corinne C. Heggie, both of Hinshaw &
                               Culbertson LLP, of Chicago, for appellee.

     Panel                     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
       abuses including being punched and pushed. Plaintiff was attacked on November 16, 2009,
       and 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,
       3-108(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

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     of discretionary decision for which [s]ection 2-201 of the Tort Immunity Act provides
     absolute 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 5/2-619(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 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

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               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. 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 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

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       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.
¶ 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) (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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