who was found hanging from the back of his shirt collar on a hook inside a bathroom stall door at the open school in evanston just several feet down the hall from his third floor classroom he was unconscious given c p r resuscitated sufficiently to be hospitalized for a day and died the included as part of our second amended complaint exhibits five depositions to expert affidavits a group of police reports attached to the what's called the matthews deposition exhibit c i'd like to spend a minute or two just going through some facts that are that are within the object  listening of the exhibits and i'll do it briefly pages of level twenty two and two through twenty five of the record that the billups deposition ikhwan began having difficulties early in his fourth grade year the just the year before as a nine year old with difficulties that were of record  school according to the record he had a number of issues in october november of two thousand and seven and that time period was listed as having difficulty recovering from anger episodes this was known then by the school psychologist who was involved to be something that was a potential hospitalized during the end of that your november december during his fourth grade year and there was a letter sent to the school in december of that year after his hospitalization which told the school of his diagnoses for a number of things a d h d clinical depression oppositional defiant disorder and suicidal ideation they were told that he'd indicated he was threatened to kill himself but that's all the better step is ition and then make up the complaint the complaint by attachment as an exhibit and the terry blake deposition exhibit a all found a new specs ten sixty five to ten a d it was a he would if a child is reported that the school is having emotional or mental health issues there would be a plan written up it's called a five  school district being aware of all these things is that leading up to the prevention of what would have been a suicide it's living up to the prevention of a child who couldn't intend suicide as our contention but could to lash out with respect to those who is threatening to kill him so we are saying a child of bed age could not intend suicide but he may do things that puts him at risk for injury to himself risky games the hanging game that we've talked about in the record are you doing something to lash out at those who are disciplined so is the suicide are you saying that the complaint does not allege that is suicide that's why correct now because suicide is different and we tried to conditions and then yes and in school they had specific personnel to deal with children that have conditioned social worker psychologist a policy and plan to address situations where it's been reported to as i mean at this point the only cases that we have that have allowed the caption for the special duty relationship are those involving police and fire department personnel there's nowhere that backs that limitation district based on two thousand seven reports that that there was a psychiatric history going on and stripes of what is what is this  knowledge by philips the psychologist that's ignalina by terry blake the health care clerk she said that what should have happened at that point after they got the letter was a set of setting up the five zero four plan dealing specifically with this to the now here how is that how do you plead that that proximately cos the omission caused him to go into that after and do whatever we if it's an omission failure to do it what do we know how do we know what are the facts to tell us that these acts or omissions resulted suicide rate but you're telling us now that he didn't commit suicide protest a play game so what's the causal next what's the nexus between his mental health issues and this game that ultimately killed what we're saying about suicide my question is if you so if we're putting suicide as if we accept that that this child was not of an age that could form suicidal that we put suicide aside and we say this was this was a game that wry what's the causal connection between his his suicidal tendencies and playing this game that he's a risk taker that he's involved in dangerous activity that he would put himself at risk in heard it all i believe this child may well have gone and done something to lash back at those involved he would say things like i'm going to kill myself you know that's something that the exhibits and whatever shape that i'm going to live he says that and i what i'm saying is that he said leading into the hospitalization of vandal savage that yes he was capable of doing that as well for saying so then he was supposed to get worked up with respect may have happened to well then how was next  because if how did that fact because if he gets the care plan that he's supposed to get then they're going to be observing him and dealing with him separately in light of what's elements of all i talked about that he has tragic that are you saying it was definitely not a suicide i'm saying we can't tell for sure we've relied on cases that i think if you're saying that it's easy to think maybe it's a suicide maybe  manner of its occurrence he's found hanging which may well be something he did with himself but we can't form that intent but what you're saying is it doesn't really matter whether it was a suicide or whether it was a hanging game because because of what it was it was a tragic event and they should have been watching they should have been that's right and they should but they should come to care place not necessarily supervision or watching but it's whatever the care plane is they don't discipline him the way they did that he had three warnings know that's what he said a deposition what he told the police which is part of his deposition as exhibits is a bit different he talked about he was that close basically going on to the principal's office again couldn't believe before he had served a suspension because of on friday this was a monday was the day before easter of a suspension on friday and the police reports a test a part of the complaint through the exhibits is that he had thrown things off the teacher's desk after the teacher had called his mother about problems that day and so there's a lot more going on there and this teacher isn't even made aware this responses that we ever made were absolutely none and he even responded heavy no he may well have done things differently that's the essence of the testimony the big the point here is really if they do what they're required to do by policy specifically a mental illness look at the tear the blake testimony on this it's get is a wall moment in my opinion as to what the underlying facts were as to the point the point being is with that's where we are will we put on expert some data to finish up these issues absolutely but that's not the point where we are and would but the reason we put the deposition transcripts in there is we this as the factual underpinnings for what happened we didn't get to present it in a more response and we didn't get to present in the oral response to the court terms what was that we had to plead and we tie always facts in in there in order to substantiate the claim this is forseeable they were told about they were there were twelve this trial had major issues suicidal ideation and he's found hanging in in their bathroom he's a he's been a conversation with the misbah kirby we were going to fight in the exhibits as well that terms of finding out more about him and then it just it disappeared nothing happened no plan was given that was supposed to be the safety net that handles this in a stressful situation at school and then and then want to say i'm just awkward proximate cause point they serious suicide but in some ways unrelated to the mental illness issues and everything that he had they've been seriously included in their papers and i can understand why karen it said that the actor and action must be both a determination of policy and an exercise of discretion that was about fire commissioner who determined the policy and then exercised the discretion  this one anyone who's determining policy what we're focused on is people who are supposed to follow those they failed to follow the policy already in existence the personnel in the office and and as a result by prescribe manner and even the defense for a brief it page twenty one is a ministerial that is to follow or something in a prescribed manner that's exactly what we're talking about and it's exactly why healthcare and person blake so he fell through the another and a complainer she denied it in the most a case stands for the proposition that you need you need the policy and and the discretion they can't get to that standard three want to wait that doesn't apply or we're not talking about the supervision of an activity we're talking about failing to follow a policy provide the protection he was supposed to have and didn't get as a proximate result of that if he gets to the point where he does something quite in line with what they were warned that awkwardness really is the fact that instead of pleading facts with the third chance the third attempts that was granted she plaintiff to plead a case they threw their hands up in the air and just attach all the depositions taken under the guise of a respondent discovery procedure to then have the trial court take the facts that would then support the claim i heard counsel say that they felt that they were required to do that or they felt compelled to do that because of the manner in which the the second amanda complaint was disposed of by the trial court however counsel did not know going into the second briefing on the second motion or motion to dismiss a second man a complaint that the court would not hear argument they did this knowing how why the the only real difference is the fact now over seven hundred pages of deposition testimony that the trial court and opposing counsel was required to cull through and then identify why that still failed to state a cause of action there's and two thousand and seven judge the deposition testimony reflects that the district received a letter from an outside provider and that letter was received in late january two thousand and eight and they were told of the hospital ization of the care obsessed by that she then reached out to the mother received the consent to then talk to that provider spoke to that provider spoke with the teachers and then determined that the child was receiving sufficient care outside of the school and presented no danger to himself in the school she's not she's opposition to it to make medical diagnoses but what she did was within her role as the school psychologist she made these terminations and then actually did follow up with the teachers now will i'm sure mention that nobody disclosed the actual diagnosis of course not there was no consent given for that there was the consent given for the psychologist to speak to the outside treating physician but there was no other consent given to start disseminating diagnoses made by that position even though that the consent was given for the psychologist to speak to that person to just find out what was going on i get information that the psychologist said that that's what she does and in the course of the proceedings that's what the school did the school did not sit by and drop anything or let anyone or let anything go by without any further follow up what counsel refers to as a falling through the cracks again it's just cherry picked testimony that is extra missions to what cause it's to what caused the president today said that what whatever occurred the injuries that occurred to this child were the result of the  omissions that the evanston skokie school district either didn't do or did do by right and what they what they specifically said was that they failed to that repository were you forced on them the burden of finding out if you put a complaint why does a trial court have to go through seven hundred pages deposition testimony that the plaintiff took under the the premise that they needed to take this respondent discovery because they had to find out what else could be possibly a defendant in this case they did it in reaction to a motion to dismiss the original complaint then they amended their completely file the persimmon a complaint with the benefit of some of that testimony still didn't pass muster so then what did they willing to alert the fifth grade teacher about this history from two thousand and seven that because of that breach that this caused this harm which we're not sure and by not doing anything or failing to do something at that time caused what happened but i'm not sure what did  right and no one's going to know what happened but what we but he was firm because obviously the really our white is is dead the special duty doctrine does not apply here because the elements that are required for that doctrine to apply are not satisfied you need a unique awareness of a particular danger to this plaintiff you need specific acts or omissions that are willful or affirmative in nature you need to have the defendant ha seven the child was was hospitalized the school found out about it in january two thousand and eight more than a year before the incident and they followed up with the appropriate personnel determined that there was no danger posed to the child to himself at school and then he was receiving adequate treatment outside of school and they proceeded accordingly well i'm talking about portions  really doesn't apply in this context it's very limited it's a very narrow doctrine and as was recognized earlier this was something that has historically been limited to the first responder type of person out because those are the people that  not provided that well then maybe they should be allowed to ban it well you know the problem here is this you know if you have a child who has a mental problem and you tell the teachers they w the child more carefully and if they watch the child more carefully it may prevent this type of thing from happening so there could be a set of facts that would create a cause of action but then we're talking about supervision and that's that's said from the beginning being we never be able to prove the case and you may be one hundred percent right but the question is this is it the pleading stage do we knock these things out of the pleading stage because there could be a cause a bad can almost always there could be a we don't know what the event is but the event is characterized in several different fashions it's either a suicide or it's not a suicide more likely than not it's not a suicide according to the plaintiffs in the allegations in the complaint but if you're saying that where it's a failure to provide the ip planned well via testimony that's attached to the complaint which controls says that they made the decision that one was not needed so there's there's nobody feels better to see one night or one yes so you also argue that  idea that it is school there is no school that can watch and monitor everything like when kids have to go to the bad is that what you're saying yes the scriptures are in fact that there's a recent case that we additional authority issued the fourth district a similar situation we're talking about again in a bathroom that involved punching students punching each other in the abdomen one child was hit very hard apparently and then died as a result of the injury sustained school didn't have any notice of that event that game they how could they have prevented that there was no there was no way that they knew about that similarly here there are no allegations that the school was aware of this hanging game which it is actually a misnomer because it was a pull up game it would be hanging on the on the cross bar and pulling themselves up in the door would be behind them of the door of the stall but in that if the there had been dissemination of this information which of course is belied by some of the deposition testimony but assuming what he's saying is true and that nothing was disseminated if it was it would oblige greater supervision well that again triggers immunity because we're talking about supervision of the child in the school there this is nothing more than an attempt to package and repackage what is a non viable claim it's a certainly a tragedy of unity  certainly disposed of at the pleading stage where the facts alleged don't show cause alexa's those required to support a claim to her in this case with you for purposes of immunities the facts alleged plainly involved there's no allegation that there was a requirement that the viable for the ip be implemented so once as deposition testimony makes clear once it was decided that the term in that there was no need for that  discretionary act and that's attached to the immunity with respect to the supervision this whole claim is based on a failure to supervise the child the failure to disseminate means it didn't have an additional supervision over the whether this game whatever role the game play failure to prevent the game from going on are nobody that again supervising the children within the school and their movements within the school the child the teachers are failing to notice a child  not lying when he went to peak class failing to supervise again we always come back to conduct that is subject to an immunity even if you were to get past the six one five argument and find that there would be or could be a cause of action stated there is simply nothing that to the point of the stage of the proceedings were had we we had a clue to the conclusion reached here that this was a suicide as a matter of law and we pledge to the contrary that that's what happened there they said in their in their  happened in the boy's leg well i'm proximate cause it need not be the last or nearest so somebody might have done something to that boy because he was not being taken care her plan at that point but it was seven earlier saying they're supposed to do something dealing directly with the idea that he has these issues and that he may  and ultimately he's dead to something that looks like it may be suicide they didn't do anything about it when they were supposed to synthetic educational practice it's not just it's not it's nothing to do with education he's not being educated duty in illinois yes to supervise at all times when a child this is all there is right there is and yet but but if you're talking about three one oh wait it's supervision of an sorry i thought this if the teacher mr met humes was told of the problems of this child when the child took a recess to go to the washroom and he didn't come back in two minutes then children down two floors to a gymnasium and he's been missing now for over thirty minutes what does he do instead of doing as you would suggest worst words a quantum my boy that's got special issues that i know has got problems where really  and up on the third floor it takes time to get him down to the gymnasium and when he's returning the stuff at the second floor office what he does is he goes in and checks his mail and he knows he's got a child that's missing he originally denied that to the police that's part of the part of the exhibit says well he denies it to the police and a dead position he would track because he knows in the scene in the office i mean these are all part of stuff we had to put in the in the in the exhibits for this pleading and bosh were by the way they were wrong about b exhibits only control i don't think there's much problem with the exhibits up from my perspective but they only control when they are instruments and the court specifically says that if they read of age further they would have seen that real quickly on special a special duty that the court had been asking about three elements unique awareness they could have been more uniquely aware of this child had these issues we left it's all in all of the discussion of both phillips and and and  blake with respect to what they were aware of they had policies in place because we identified secondly the other the next point that they should have had an ip they didn't do that they should have had a five zero four they didn't do that those were those allegations amount to and it's all in the chapter should've been because he's been separated out from the general population by virtue of the information there they've identified him there in complete control of him in the setting of a school every day school  information about him to get a psychologist involved a social worker that supposed to be involved and that's the kind of control that this is special doing it's one of those kinds of cases they don't happen that often i understand but it's that those elements are all that i appreciate the