we're here to ask the court to reverse the fourth district appellate court decision finding that there was liability there was potential liability for a cause of action in this case we asked the court to reinstate the order judge jones which the voluntary undertaking and the viability of a cause of action directly for violation of a crush of people address the fraud misrepresentation and frogger concealment issues and he'll also address whether there's a state created danger cause of action whereas the court to find that there are no cause of action of any kind in order to do that as you know you're to consider the facts in the complaint as a they state a cause of action the fourth district found that there was a cause of action but they based it on a reading of the complaint was plainly erroneous the basis of the whole thrust of court forced districts opinion was that we could potentially be liable for creating and sending a letter to her bed with the additional implication that are better received and relied on that letter in making a decision to hire john white is simply not supported by the record for the record the complaints themselves specifically say that such a letter was created they nowhere say that it was said to have been they know where say the urban or receive them relied on them in any way informing their opinions yes oh yes indeed there is there issues that are actually caused called for in the complaint before it proceed in that direction i think you know when we argue this case in the trial court level judge jones specifically said that one of the reasons he wasn't considering a cause of action here his finding that the complaint did not allege that this supposed letter of recommendation played any part in the decision to hire john white he said on two different occasions but he did so place counsel sat silent that in argue with him they didn't point to anything in the complaint to suggest otherwise and there isn't anything in the complaint this it suggested otherwise they also didn't suggest that this was an oversight or some sort of inadvertence on their part that they failed to put it in there properly and they didn't to this email from john pike where he said it was actually worse than he thought but they made no attempt to ask that the play be amended to include an allegation that are better received or relied on that letter or that we said it that was never in the case we raised this issue in the appellate court and we raised it here in our pleadings at no point have they ever suggested at any time that that letter was sent or received they've just said oh well that's irrelevant we've lived all these other things so it doesn't really matter well it doesn't really matter it was the heart of the fourth this is the fourth district opinion and it was a mistake i also there is also a reference to a verification of employment for same thing as they're creating a danger by persuading him to get employed there it's also important to note that there is no allegation that that verification of employment letter form i should say was letter but they also conceded that they didn't receive this verification form until after he'd already been hired so those are not contradicted by the complaint they supplement the complaint they fill in a couple duty exception of the public to the rule considers a situation where the public entity creates the danger but it doesn't waive the application of the general rule for that single reason when there are four requirements before the public especially exception applies when those requirements is that state create the danger or the other one or the other critical one is that the plaintiff has to be in the direct and immediate control of the defend it and here that is absent it's not even argued anywhere because they were students at another school district long after you know five of them have fixed it so i believe that that issue has been addressed by the court decisions addressing the public duty rule and  something that pete's going to address but i feel pretty sure he'll talk about iceberg versus gross which is court said there's no front of concealment unless you have a special relationship with the plaintiffs i see no reason to depart from that decision and if it applies then  that's what we're looking at here if you look at the pleadings in toto is a situation where joe white is alleged to have been employed by us in april and may for the last time in august he gets a job with ravana without any communications transpiring between us and they call that passing like a hot potato i think that's just nonsense the seventh circuit addressed that same issue and i'd like to quote from the decision because i think it's important this is doe two who was another of the victims of john w provided by statute a public employee as such and acting within the scope of his employment is not liable for an injury caused by the act or mission of another person clearly these  such in the course the scope of their plummet and just as clearly it's alleged in the complaint john white cause injury this is facially on its face book about this case now fourth district decided that they were not going not an exception and so then we must look to the statute the plate of said not even tried to defend the court district's interpretation or statute instead they've argued a sense of the same things that were are going release they argue that this  is only applies to respond yet superior liability so to the statute is broader than that it talks about the acts of the public employees when this course the scope of their employment something which is completely irrelevant to the issue of vicarious liability it talks about the injury being caused by another person another employee another person statute monkey places refers to other employees when they mean other employees here they said what they meant and what they meant was any other  if you read that if you read that into the statute then the only people who would ever be protected by this act would be people who are innocent so it's clearly not people it covers  really broad and these place would not recover well they made it very clear what they said and this court is no didn't dismiss it and myriad other cases it's not for you to rewrite the legislature's laws if you think that they could have been written another way or should have been that's their job the remedy if any to be in the legislature here so for those reasons as well you are a good attorney clearly applies and even if there were a cause of action and probably do  also like to talk about the allegation that anchor creates a special cause of action i believe it clearly it does it first before i get to that however i must point out that this is a was there a private cause of action implied by the statute i think pretty clearly the answer is no first of all the statute is silent on the subject the second consideration in determining whether statute has an implied cause of action is whether there are remedies provided in this criminal statute which are adequate to secure its enforcement clearly they are there's a licensed professionals can lose their licenses people can go to jail if there's no need to add in additional rimini here and this seems to me clear that the legislature did not intend to do so further evidence that the legislature did not intend to do so is the fact that there have been multiple cases in both states and federal courts of illinois interpret english statu please the court peter brandt i'm here on behalf of defendant dale hyde breeder i want to mention and speak on the issue that mr kearns raised earlier that i was going to discuss fraud must be arise out of a of a commercial transaction case this is not a commercial transaction case there is no case law that the opponents our opponents have cited that that puts this case into a commercial transaction or that makes an exception to that rule the case of dover says dilling is a case that this court authored in two thousand and eight and it was a case in which the parents had knowledge of the sons that the son had contracted aids in that the fiance had filed suit against them in the claim was that there was a fraudulent misrepresentation that the parents had not advised the fiance of this or the fact that her fiance had which this allegation can proceed the can the plaintiffs in this case had initially filed for odd claims and those claims had been dismissed they had not been revived at the appe e stage and so are waived but to the extent that they have tried to reestablish these claims as i read package them if you will as a voluntary undertaking that had i'm sorry that county had some obligation because they had provided the documentation or allegedly provided some documentation about the days that white had worked there if that somehow gets around their obligation or the prohibition against proceeding under a flawed theory outside the context of a commercial litigation dealing case makes clear that the toward misrepresentation applies only to business transactions the federal court appeal the decision of the trial court dismissing those and as now should not be allowed to to bring those back forth before this court the allegation that there was has stood for as good law that there are no facts that could be alleged that there was an intense there's a responsibility or an intention or that the defendants undertook to protect the point of in that case and it's identical to what we have here today there's no ball in terry undertaking that by doe by dale hyde breeder or any of the defendants that we are going to provide some services to doe three and zero seven there's no indication that they relied upon deal heide breeder or the other defendants to do anything for them to protect them there's no allegation or there is no basis for the proposition that the defendants in this case had any contact whatsoever or that the plaintiffs even knew the defendants existed there's no special relationship in without that special relationship and what what this case hinges on for the plaintiffs is a special relationship having existed and there's no allegation they can make an allegation because there was no special relationship between the defendants and there was no custody that the defendants had of the plaintiff that any time sixty miles away from mclean county there was a case that we cited b c versus j c penney company which was a first to triple a court case that discussed the proposition that where there's an agreement provides security guards that this was not a voluntary undertaking to protect the plaintiffs feel that's not a voluntary undertaking clearly providing no information to a school district sixty miles away cannot rise to that level and not rise to the level of a voluntary undertak the proposition that the defendants fraudulent concealed anything i think mr kerns make clear that there's no information that's been passed between the two school districts mr brett yes your time has expired ok thank you very much thanks we would ask this court to reverse the fourth district in a form the trial court's findings to also for the  argue twelve minutes followed by mr burton for eight minutes he will address the public duty rule and the immunity that i waste on defense there are multiple ways in which the affirmative bad acts of the mclean school district in passing a known pedophile teacher raised legal issues the first impression in this court first the mcclane administrators voluntarily undertook duties of care towards jane doe's and their willfully and wantonly breach those duties and there is no immunity from liability in the public duty rule does not apply and second the illinois views to neglect of child reporting act implies a remedy for it's free let me focus for a moment on the factual underpinnings of this case and they are the voluntary undertakings that mclean took in passing john wright a teacher who had sexually harassed students in the claim classrooms and that was known at the time of the passing and then of course he sexually molested eight girls in a band of the first of which was jane doe three there is a special undertakings or series of administrative acts taken by the mclean school district in mclean was glad they took those acts to get white out of the district assistant superintendent john paes said he was glad in an email he sent to teachers representative julie based inks and they were glad they got him out of their district to a district only sixty miles away and they were glad because at the time he was in mclean they knew he was on a path to further problems that's again what john pie  congratulates julie bass things for knowing at the time they passed him that he was on a path to further problems requires reporting of suspected abuse risk of abuse and child abuse under those terms of anchoring they are mandatory is there not to squash unary there were multiple and there laid out in the complaint an alleged in the complaint there were multiple instances in which these defendants were individually required to report under enka their higher level school district administrators we reach the issue of the implied cause of action i think that as the state supreme court of washington did recently an implied cause of action can arise in a mandated reporting act when in a situation such as is illustrated here there are not adequate remedies on and for the serious societal issue of teacher on student sexual abuse in education our plaintiff would fit the member mans you question about voluntary undertaking yes assume you agree with this court's decision iceberg vs gross but there is no duty requiring one person to protect another from criminal activity by third persons absent a special relationship the fourth district found this sure that there is no special relationship between clean county administrators and the students in the urbana school district and you would you agree with that argued there could be a special relationship in that direct immediate control can be met because of the the the about ontario undertakings the nature of knowing they were sending this guy to a banner they brought in duties to the abandoned girls as the next in line but restatement says one who undertakes to render services to another which he should recognise as necessary for the protection of a third party is subject a liability to the third party for physical harm resulting from his failure to exercise reasonable care to protect his undertaking so my question is what is it that you're saying that mclean did undertook to protect the children let me quickly explain what exactly that well that is that's made gets lost in the shuffle but it's an important voluntary undertaking the advantage here for cation of employment form was employment from it has urbana verification on the top of it so it was definitely going to ban it also went to the state of illinois state board of education it went to places but it was a form and what they had done mclean had done in the school year preceding their passing a right as they had taken white out of the classroom twice on extended releas because of his teacher on student sexual misconduct in their classrooms first in october of two thousand and four they took him from the classroom for ten days removed him and then returned him for viewing pornography on his classroom computer then after that return to the classroom they continued to accumulate parental complaints of teacher and student touching and so then in approximately april they took him out for another twenty twenty five days i'm not sure when the school year ended so they had him out of the classroom for approximately thirty thirty five days during the second removal from the classroom which was through the end of the year that was when they actually took the steps to pass and so they took him out of their classroom as a danger to their students in their school district and then made the recognise as necessary for the protection of the third person how did the sending of that letter how was that to protect the children in our band or i agree with the fourth district that it was a voluntary undertaking as was the violation of and both were for the protection of exactly these children the jane doe if if you're going to lie about employment of your employees so that you can get another job the people you voluntarily undertaking at that point are the students at the other job if you're going to refuse to do your mandated reporting duties in the you know exactly what they are the people that are going to bear the risk are the children at the next school  district and that is that and i agree with the fourth district that the voluntary undertaking is seen in that way another issue that the fourth was right i would say they have a special relationship because their school children they're minors they're in the next district and they're sort of making it personal to those children by passing on that the dangerous path to file to their districts and that's where the in the direct immediate control issue of the special relationship i think is met when they sort of say he's going to abandon first problem let me make clear that passing is a word to express a problem this court said in people versus huddleston and i think it's important right here in this analysis that the injuries that a child bear teacher student sexual abuse and that that's the injuries we're talking about our society's problems because these children suffer lifelong educational emotional psychological  physical problems those become society's problems and that's this court's in huddleston so yes these these this problem we could take on the issue of passing it's very widespread i think often school districts kassam farther away but it doesn't matter how high they pass them it's it's it's what they do to get rid of somebody who they don't want to create more problems in their have no problems liability problems at all whatsoever if as a school district you picked up the phone and called to say f s s are mandated to do under illinois law so that was created today in my mind of notification o f reporting duty but also i think there's just duty is it is a public interest in public policy issue a bedrock and as the fourth district noted when the state creates the danger i took the interest in the fourth district language not because necessarily united states constitution substantive due process would apply right here but because the state creates the danger then there is a duty that is what makes this and john since the questions took her into the time don't deduct that from not apply to the set of circumstances and the reason for that was because the fourth district felt that you needed to place the emphasis not in the context of the public to rule but on the conduct that was engaged in as soon as bullock discussed the mclean school district voluntarily undertook to assist john white in his employment in in an attempt to address the question that you raise as i think that the notion of voluntary voluntary undertaking should not be soo narrowly read as to only apply to circumstances where the voluntary undertaking is for protection itself i think the voluntary undertaking rule when read in context with the other rules of the restatement in the fourth district made reference to this in their opinion i think the voluntarily a voluntary undertaking rule for bid someone from taking affirmative acts to create a danger such as the circumstance here that then results in harm to another here  mclean school district created the danger complained of by taking a front of steps to falsely report john white's record to the state not mentioning thirty five days that he was suspended from his teaching practice reference was made on on the argument that well you know mr white was hired by a band of schools before band of schools probably even you know had a chance to review that verification for i've no that's a question of fact we're here on a motion to dismiss but even setting that aside even if he was presumably are being a would have terminated him or at least made inquiry into the fact as to why it was he was suspended for thirty five days had they of recommendation a severance agreement was reached between the teachers union and mclean public schools in order to make mr white's record look fine and that's what passing is it's an effort to take a teacher who has problems who has issues get him out of your school district get him off into another school district god protect those children i made i made reference i made an analogy at the lower court and i am going to try to struggle through it here but this is not the circumstance where a bomb squad fails to adequately cordon off a bomb and protect members of the public this is a circumstance where the bomb squad takes that bomb puts it in a package and mails it to problem to another school system and that's what we're complaining about we're not complaining about a failure to protect here we're complaining about actual steps taken by mclean public schools to pass on this predator person that they should historically in the case law i think in our pleadings we cited the island case the means case historically that provision when it has been applied has been applied to circumstances of vicarious liability ruled that the language of the statute meant it applied both to the conduct of the prisoner because the injury and the conduct of the police in attempting to apprehend that prisoner the plaintiffs in that case try to limit it just to the conduct of the prisoner tried not to to address the conduct of the police tried to get that away from immunity the court said no no we're going to consider both conduct's defendants would like this court to apply that same reckoning to section two to zero four and their argument is if the legislature had meant section two to four to apply only to vicarious liability then why didn't they say that why didn't they just say well it only applies to vicarious liability the other side of that argument the flip side of that coin is that if you apply section two to zero four as broadly as the defendants would have you apply and expand to two of four to apply to to the conduct it's here that broad expansion would actually serve to cause for one of the six a b and i imagine a number of other provisions of the toward immunity act to be redundant now i don't think the legislature would have spent the time drafting those other sections of the toward immunity act if they meant to render all those sections redundant through a broad reading of eleven to t four and i don't think that eleven two to a four should be read so broad as to apply to the conduct here neither does the fourth district and i want to see two while the fourth district mentioned the dover says calumet city case the fourth district also made a point of saying that it is the burden of the defendants to articulate specifically that provision of the toward immunity act which is supposed to be applying to this conduct here and the fourth district found that they had not specifically articulated that section of the toward immunity  exactly what the request would be but certainly there has to be a requirement as read in the case and others that they were not said they were not received they were drafted the ceiling is in there that they were drafted and j oe specifically that was in our file that was never sent to them nothing was ever sent except a single form all these documents that we supposedly used to pass this guy are in our file exactly right it's exactly right that that's exactly right you're in fact if you look at the complaint the allegations against her better are just exactly that you heard this guy was out doing it is kind of a check on him at all and the allegations the admissions by are bad and comparing case which you can take the gist of those of our that we did not do anything at all we didn't contact them we didn't ask about them we didn't get the letter but the verification letter came in after is already hired it did come in i doesn't create a separate cause of action that's the only communication ahead and as i say the passing if you're going to accept that the passing has to say ok not only do you have a duty to passim cops is getting him fired after you're theirs they were not asked or see and is as this court has noted multiple times there's no duty from one employer to another to warn anything about employee and that's particularly true an iceberg whether what where there's no you indicate the number of days tarte during that timeframe is that right that's correct here and so this the form that list one hundred eighty days of school days talk that was inaccurate that's correct but also read request that you also disclose the percentage of each day employed and that's indicates one hundred hundred one hundred percent right i said that means if he's a part time teacher as opposed to a full time teacher and he was a full time teacher and based on the record what was the date of employment i don't remember specifically but he worked there three years but it was in august that's what i understand it at or better yes yes but if your place at regular august yes right right because i don't know where this us but if the form that justice burke asked about had been completed accurately even if he did i don't know what day the school day started that year but is it not reasonable to say hey now we've requested by urbana and that i mean you're school district does the same thing when they hire you i'm certain that's true and it looks like a section eight isn't the employee the teacher and section b is the district where they last w d or maybe they submitted for more than one school district if they've been employed several places i don't know i think that each district only refers to its own employment you know thank you thank you your and i just briefly on the on the public on the twitter immunity act the stats he says except as otherwise provided by law there are a number of provisions of the statute which provide for him for liability for police officers as i'm sure you know the exception that mr britton referred to takes some of those provisions out of play i asked the police but there is no otherwise provision by law that would apply to the mclean county employees and so that statute so all four members of the council who argue today thank you very much a case number one twelve four seven nine consolidate with one twelve five zero one jane doe three versus john white mclean county here district number five is tak