Appellate Court Affirms Dismissal of School District Pursuant to the Tort Immunity Act

September 2014

In Carlos Malinski v. Grayslake Community High School District 127, 12 L 272, the plaintiff was a student at Grayslake North High School. During school hours and on school property, he was verbally and physically abused, including being punched and pushed. The plaintiff was attacked specifically on November 16, 2009 and had informed school officials on numerous occasions about being bullied by other students.

The plaintiff had several email exchanges with Dean Athena Toliopoulos, stating he was in danger due to bullying and he feared the violence against him would escalate if the problem was not addressed. The plaintiff also had continuous contact with Joseph Volante, a school counselor. He related the bullying events to Mr. Volante and stated they would not stop unless some action was taken.

Matters came to a head on November 6, 2009 when plaintiff, in an email to Mr. Volante, advised him the bullying was getting worse and he wanted to commit suicide. On November 12, 2009, the plaintiff met with school administrators and told them other students were subjecting him to bullying.

Plaintiff filed a complaint alleging Grayslake Community High School District No. 127 had a duty to provide a safe environment and it had failed to do so by willfully, wantonly and with reckless disregard for the plaintiff's safety, ignoring plaintiff's warnings of bullying by other students and allowed plaintiff to be beaten outside of his classroom.

Defendant filed a motion to dismiss Plaintiff's Second Amended Complaint on April 11, 2013. The school argued it was entitled to immunity under §§ 2-201 and 3-108(b) of the Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"). The argument was § 3-108(b) immunized the school district for its alleged failure to properly supervise plaintiff's interactions with students.

The school district also argued the immunity under § 2-201 was meant to deal with student bullying as it was a discretionary decision for which the Tort Immunity Act provides absolute immunity.

The trial court granted the motion on June 5, 2013 and the plaintiff appealed, arguing § 2-201 was inapplicable because, although the school district exercised discretion in adopting an anti-bullying policy, carrying out that policy was a ministerial act and not immunized.

The court acknowledged that under the Tort Immunity Act, there is absolute immunity to public entities for the performance of discretionary acts, but not ministerial acts. The court stated the distinction between a discretionary act and a ministerial act is made on a case-by-case basis. 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 accordance with a mandate of legal authority and without reference to the official's discretion as to the propriety of that act.

While the court agreed the School Code mandates each school create and maintain a policy on bullying; that did not require a particular response to a specific set of circumstances. Instead, a policy may afford a school district discretion to determine whether bullying has occurred, what consequences would result and any appropriate remedial action. Therefore, the implementation of an anti-bullying policy does not necessarily render a school district's action ministerial. Having an anti-bullying policy does not mandate a particular response to a particular set of circumstances. The determination as to whether bullying has occurred and the appropriate consequences and remedial action were discretionary acts under that plan.

The Appellate Court was unable to address, whether in the present case, the anti-bullying policy required a particular response to the circumstances alleged as the policy was not attached to the Complaint.