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                                     Appellate Court                          Date: 2018.07.10
                                                                              16:51:21 -05'00'




        Castillo v. Board of Education of the City of Chicago, 2018 IL App (1st) 171053



Appellate Court          ELIZABETH CASTILLO, a Minor, by Her Mother, Esperanza
Caption                  Castillo, ESPERANZA CASTILLO, ROSALINO CASTILLO,
                         MARIA CASTILLO, YESENIA CASTILLO, and ENRIQUE
                         CASTILLO, Plaintiffs-Appellants, v. THE BOARD OF
                         EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee.



District & No.           First District, Second Division
                         Docket No. 1-17-1053



Filed                    April 24, 2018



Decision Under           Appeal from the Circuit Court of Cook County, No. 16-L-267; the
Review                   Hon. Kathy M. Flanagan, Judge, presiding.



Judgment                 Affirmed.


Counsel on               David W. Hepplewhite, of David W. Hepplewhite, P.C., and Sheldon
Appeal                   Minkow, of Minkow Domin, both of Chicago, for appellants.

                         Law Department of Board of Education of the City of Chicago, of
                         Chicago (Ronald L. Marmer and Lee Ann Lowder, of counsel), for
                         appellee.
     Panel                    JUSTICE HYMAN delivered the judgment of the court, with opinion.
                              Presiding Justice Neville and Justice Mason concurred in the
                              judgment and opinion.


                                                OPINION

¶1          Elizabeth Castillo, a high school student, and her family sued the Board of Education of the
       City of Chicago (Board), after Estrella Martinez, a fellow student, physically attacked her
       off-campus. Castillo alleged that school officials failed to protect Castillo from Martinez’s
       on-campus harassment and eventual off-campus attack. The trial court held that the Board was
       immune from suit.
¶2          We affirm because that is what the law requires. The Board’s alleged failure to prevent
       on-campus harassment depended on discretionary decisions regarding school discipline. And
       its alleged failure to protect Castillo from an off-campus attack involves police protection. In
       both areas, the Board has statutory immunity. Finally, Castillo did not sufficiently allege that
       the Board spoiled evidence by not preserving a diary where she recorded Martinez’s
       harassment.

¶3                                              Background
¶4         According to Castillo’s suit, Martinez physically attacked her off-campus. Before the
       attack, Martinez had previously attacked Castillo on school grounds, in front of school
       officials, including once on the day of the off-campus attack. In the two years before the attack,
       Castillo’s mother had spoken several times to school officials about Martinez harassing
       Castillo at school. Castillo’s mother called the school just before the attack to complain about
       Martinez, but no one would talk to her. After the attack, Castillo’s mother went to the school to
       retrieve the contents of Castillo’s locker, including a diary in which her daughter had written
       about the harassment, but school officials refused to give Castillo’s belongings to her mother,
       and the diary was never found.
¶5         Castillo alleged that the Board had been negligent by allowing Martinez to remain a
       student despite her conduct, failing to prevent Martinez’s harassment or the attack by expelling
       her, calling the police or the girls’ parents, or providing a safe place on school grounds for
       Castillo to wait and avoid Martinez, and failing to warn Castillo of Martinez’s planned attack.
       Castillo also alleged that the Board had committed spoliation of evidence by losing,
       destroying, or failing to preserve her diary.
¶6         The Board moved to dismiss Castillo’s complaint, arguing that it was immune because
       school officials had no duty to perform police functions by preventing Martinez’s off-campus
       attack on Castillo and disciplinary matters are discretionary. The Board also argued that it had
       no duty to preserve Castillo’s diary, that there were no facts alleging that school officials knew
       about the diary, and that it was not foreseeable that the diary would become important in the
       eventual lawsuit.
¶7         The trial court dismissed Castillo’s complaint.




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¶8                                         Standard of Review
¶9         We review a trial court’s dismissal under section 2-619 of the Code of Civil Procedure (735
       ILCS 5/2-619 (West 2016)) de novo, taking as true all well-pleaded facts and interpreting
       pleadings in the light most favorable to the nonmoving party. Mulvey v. Carl Sandburg High
       School, 2016 IL App (1st) 151615, ¶ 41.

¶ 10                                               Analysis
¶ 11       Castillo frames her brief around whether she sufficiently alleged a cause of action or a
       prima facie case against the Board. Like the trial court, we will assume that Castillo alleged
       that the Board had duties to protect her from Martinez.
¶ 12       Castillo’s factual allegations fall into two categories: (i) the Board’s failure to protect her
       from Martinez’s harassment on school property (which, according to Castillo, happened in full
       view of school employees) and (ii) Martinez’s off-campus attack on Castillo.

¶ 13                           Section 2-201 Immunity: School Discipline
¶ 14       Castillo argues that the Board’s failure to discipline Martinez for her on-campus
       harassment violated the bullying-prevention statute (105 ILCS 5/27-23.7 (West 2016)) and the
       Board’s own anti-bullying policy. The trial court held that the Board was immune under
       section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act
       (745 ILCS 10/2-201 (West 2016)), which states that “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.” Because the statute was enacted in derogation of common
       law, it must be strictly construed. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368
       (2003). Section 2-201 applies to employees performing discretionary functions, but not
       “ministerial” acts that require no discretion by the employee to implement a given policy.
       Malinski v. Grayslake Community High School District 127, 2014 IL App (2d) 130685, ¶ 8.
¶ 15       Castillo argues that section 2-201’s immunity applies only to “policy-making discretion,”
       not to the exercise of discretion in the implementation of policy. Courts have repeatedly
       rejected this argument and have applied section 2-201 immunity to school officials
       implementing anti-bullying policies similar to the one here. See Mulvey, 2016 IL App (1st)
       151615, ¶¶ 47-48 (implementation of school’s anti-bullying policy requires discretionary
       determinations of whether bullying occurred and appropriate consequences, not just
       ministerial acts); Malinski, 2014 IL App (2d) 130685, ¶¶ 12-13 (implementation of
       anti-bullying policy under bullying-prevention statute does not render school official’s actions
       ministerial); Hascall v. Williams, 2013 IL App (4th) 121131, ¶ 25 (school officials must
       determine whether bullying has occurred and appropriate consequences, which are
       “discretionary acts and policy determinations”).
¶ 16       Review of the Board’s anti-bullying policy shows that its implementation requires both
       discretion and decision-making by school officials, at every level. Even as it defines bullying
       behavior, it cautions that the list is “illustrative and non-exhaustive” and directs school
       officials to consider “the student’s intent, the frequency or recurrence of the inappropriate
       behavior, and whether there are power imbalances between the students involved.” That is, a
       school employee could determine whether a behavior constitutes “bullying” even if the


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       behavior does not fall within the listed examples of “harassment, threats, intimidation” and the
       like.
¶ 17       The policy directs school employees to intervene in bullying incidents “in a manner that is
       appropriate to the context,” and after investigation, to assign consequences “in a manner
       tailored to the individual incident, considering the nature of the behavior, the developmental
       age of the student, and the student’s history of problem behaviors and performance.” While the
       policy directs school employees to deal with bullying incidents, it assumes, and indeed
       mandates, discretionary decisions by employees. Like the policy in Mulvey, this policy is
       “discretionary in nature and does not mandate a specific response to every set of
       circumstances.” Mulvey, 2016 IL App (1st) 151615, ¶ 48; see also Hascall, 2013 IL App (4th)
       121131, ¶ 29 (school officials’ alleged acts and omissions constituted discretionary acts and
       policy determinations, so officials were immune under section 2-201). It could hardly be
       otherwise. For the Board to promulgate a policy that would inhibit individual school officials
       from making their own determinations as to what constitutes bullying and the appropriate
       disciplinary response would be difficult, if not impossible, to establish.
¶ 18       Castillo relies on Barr v. Cunningham, 2016 IL App (1st) 150437, ¶¶ 3-4, where a student
       who had been injured during gym class sued the gym teacher for failing to require the students
       to wear safety equipment. The appellate court held that the gym teacher was not entitled to
       immunity under section 2-201 because the decision of whether to require safety equipment was
       not a policy-making decision. Id. ¶ 28. Barr was overturned by the Illinois Supreme Court on
       other grounds. Barr v. Cunningham, 2017 IL 120751. We reject its remaining analysis on the
       question of policy determination versus discretionary decision-making. Hascall, Mulvey, and
       Malinski—cases that also involve decisions under an anti-bullying policy—fit better factually
       with this case than Barr.
¶ 19       Further, Castillo argues that the Board does not warrant section 2-201 immunity because it
       violated the bullying-prevention statute. 105 ILCS 5/27-23.7(d) (West 2016). But this statute
       only mandates that every school district create a policy on bullying; it does not mandate that a
       school respond to a particular instance of bullying in a particular way. The Board complied
       with the statute by creating an anti-bullying policy, and so Castillo cannot evade section 2-201
       immunity by relying on the statute alone.

¶ 20                              Section 4-102 Immunity: Police Protection
¶ 21       Next, we will address the Board’s alleged failure to prevent Martinez’s off-campus attack
       at the core of this case. The Board argues, and the trial court held, that the Board retains
       immunity from suit because Castillo alleged a failure to protect her from a crime—a public
       entity is not liable for failure to “provide police protection service.” 745 ILCS 10/4-102 (West
       2016).
¶ 22       The Board cites two cases for the proposition that school officials are immune from suit
       when a student is harmed off school property, even if school officials knew that violence was
       likely. In Green v. Chicago Board of Education, a high school student was shot and killed by a
       fellow student. 407 Ill. App. 3d 721, 723 (2011). Though school officials knew of rising
       tensions between rival student groups, the victim, Ruben Ivy, was required to leave school
       after dismissal. Id. A large group of armed individuals were waiting outside, and Ivy was shot.
       Id. Emily Green, the special administrator of Ivy’s estate, argued that the school should have,
       among other things, notified police and provided safe passage in and out of the school, but

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       failed by dismissing students from school when there were armed people outside. Id. The
       appellate court held that the “police protection” clause of section 4-102 afforded the Board
       immunity, as Green’s allegations “focus[ed] on security and police measures around the
       school.” Id. at 728.
¶ 23       Similarly, in Albert v. Board of Education of the City of Chicago, 2014 IL App (1st)
       123544, a student was killed in a fight on his way home from school. The appellate court
       followed Green, holding that the Board was immune from claims that it should have protected
       Albert after school and off-campus because the actions would be “police protection.” Id. ¶ 56.
¶ 24       As in Green and Albert, Castillo alleges an attack after school and off school grounds and
       claims that the Board should have protected her from this attack.
¶ 25       Castillo attempts to distinguish Green and Albert by arguing that she has not alleged that
       the Board should have acted in the role of police to prevent Martinez’s crime but, rather, that
       the Board should have protected her through “supervisory” actions, such as calling parents,
       calling the police, or allowing Castillo to remain at the school to avoid Martinez. According to
       Castillo, this would make section 4-102 inapplicable if Castillo could show that the Board had
       undertaken to “supervise an activity” but committed “willful and wanton conduct.” 745 ILCS
       10/3-108 (West 2016). Green rejected this precise argument. 407 Ill. App. 3d at 728 (finding
       that section 3-108 is not an exception to section 4-102, and Green’s allegations focused on
       security measures, not failure to supervise activity). Further, Castillo has provided no case, and
       we have found none, distinguishing the actions she suggests as “supervisory” rather than
       “police.” Finally, many of the “supervisory” actions the Board allegedly could have taken
       inevitably slide into the area of school discipline, which, as discussed, is covered by section
       2-201 immunity.

¶ 26                                      Spoliation of Evidence
¶ 27       Castillo alleged spoliation of evidence, specifically, that the Board had a duty to preserve
       the contents of Castillo’s school locker, including a diary in which Castillo recorded
       Martinez’s harassment. Spoliation is a form of negligence, and the general rule is that there is
       no duty to preserve evidence. Martin v. Keeley & Sons, Inc., 2012 IL 113270, ¶ 27. Castillo
       must show that an “agreement, contract, statute, special circumstance, or voluntary
       undertaking” gave rise to a duty by the Board to preserve the diary and that a reasonable person
       in the Board’s position “should have foreseen that the evidence was material to a potential civil
       action.” Id.
¶ 28       The claim fails on the second prong of foreseeability. Castillo has not alleged facts
       indicating that the diary’s evidentiary worth would have been foreseeable by a reasonable
       person in the Board’s position. There is no allegation that Castillo, or anyone else, told school
       officials that she was recording Martinez’s harassment or that she even had a diary in her
       locker. Nor has Castillo explained why a reasonable school employee cleaning out Castillo’s
       locker would recognize that the object contained the factual basis of an eventual lawsuit.
       Differentiating the diary from the normal locker contents of a high school student would have
       required the school employees to open and read it, which they certainly had no responsibility to
       do. Disposing of the locker contents may have been careless, but Castillo did not allege
       sufficient facts to show that the Board committed spoliation of evidence.

¶ 29      Affirmed.

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