THIRD DI VISI ON October 22, 2008

No. 1-08-0786

DANIEL MITCHEL

L, a Minor, by

his Legal Guar

dian, ) Appeal from Shirley Lamb ert, ) the Circuit Court ) of Co ok Co un ty. Plaintiff -Appella nt, ) ) v. ) No. 06 L 5486 ) SPECIAL EDUCATI

ON JOINT AGREEMENT ) SCHOOL DI STRICT NO. 208, ) Honorab le ) John A. Ward, Defendant-Appellee. ) Judge Presi ding.

JUSTICE THEI S deliver

ed the opi nion of the

court: Plaintiff, Daniel Mitchell, a minor, by his leg al guardian, Shirley Lambert, appeals fr

om the order of the circuit court of Cook County granting the motion for summary judgment filed by defendant, the Special Education Joint Agreement School District No. 208 (the school). T he circuit court found that Daniel failed to raise a g enuine issue of material fact reg arding whether school employees a

cted willfully and wantonly in failing to supervise him. Daniel challenges that conclusion on appeal. We affirm. Daniel suffers f

rom Downs

Synd rome, is profoundl

y me ntally delay ed, is not a

ble to speak, a nd is seve rely hearing impaired . He also

require s assistan

ce with a ll of his da

ily function s, includi

ng with me als. Dan

iel was a special educati on student

at the de fendant

school,1-08-0786

2

which is a public school serving students with special needs from 15 Chicag o area school districts. Through Lamber

t, Daniel commenced the present action ag ainst the school contending that the school willfully and wantonly failed to properly

monitor him during breakfast on May 31, 2005, causing him to choke and sustain injury . Daniel sought $50,000 for his injuries. The school subsequently filed a motion for summary judgme nt contending that Daniel could not e stablish, a s a matter of law, that school

employ ees had a cted will fully

and want only in failing to superv ise him. Th e school a

ttached the follow

ing dep ositions an

d other ite

ms to its motion for summary judgme nt. In her deposition, L ambert testified that Daniel requires one-on-one supe rvision while he is eating . Otherw

ise, she e xplained, he will ea

t too quick

ly a nd put too mu

ch food in

to his mouth. To prevent t

his from oc curring , Lam

bert will c

ut Daniel ’s food in

to small pie ces and s it with him while he eats to make sure he paces himself. She added that if Da niel is not monitored, he will try

to take f ood from o thers. However, once Da niel has f inished e ating, he will not tr y to take more food. Benoit Runyan, the sc

hool principal, testified that students at the school have many diverse, specific needs. Accordingly, each student ha s an individualized education plan and school staff meet on a biweekly basis to discuss students’ needs and ensure that those needs are met. Regarding Daniel, Runy an explained that the school psychologist prepared a report assessing him. Although Daniel was 16 y ears old at the time in question, the report disclosed that D aniel ’s soc ial age was 12 mont hs, hi s acade mic age was 11 mont hs, an d his physical age1-08-0786

3

was 34 mon

ths. L ike a todd

ler, Dan iel could maneuve r around his envir onment, pi ck up item s, and se nse ho t and c old. Thus, Danie l coul d not be ex pected to care for hi s own s afety. Alt hough Daniel was not able to communicate verbally, he was able to communicate via hand gesture s. He specifically unde

rstood a hand gesture for “stop.” The school and school staff were also awa re of Daniel’s specific needs re lated to food. They understo od that Da

niel’s fo od had to b e cut into small piec es and g iven to him g raduall y in small porti ons. D ue to D aniel ’s “at tract ion t o food ,” sch ool s taff al so und ersto od th at a la rge amount of food could not be set out in Daniel’s presence. Runy on added that Daniel had even tried to take food from the garbag e can on his way out of the school cafeteria. Daniel had also sat down on the

cafete ria floor and ref used to le ave. On a

nother oc casion, D aniel wa s given a plate of Chinese

food and a slice o f bread . Daniel b egan s tuffing “forkf ulls” of f ood into his

mouth rapidly. Daniel’ s teacher had to intervene and g rab Daniel’s hand to stop him from taking another bite until after he had chewed and swallowed the previous one. When the teacher looked away “for a s econd,”

Daniel g rabbed t he brea d and stuf fed the e ntire pie ce into hi s mouth. As a result of Daniel’s “food issues,” Daniel’s teache r or paraprofessional aide would cut his food and monitor his eating to ensure that he paced himself and did not take food f rom others. However, Runyon made clea

r that Daniel had never choked on food bef ore the May

31, 2005, incident. Chris Peterson, Daniel’s teacher at the time in question, testified that at the beginning of the school year, he was given the individualized education plans for eac h of his students. He was also given other information on their specific needs. Pete rson specifically

remembered Daniel and testified that he had been made aware of Daniel’s tendency

to gorge food if he wer

e left1-08-0786

4

unattended. He was also aware of the protective measures, such as cutting Danie l’s food, that needed to be taken for Daniel at mealtimes. Peterson e xplained that if Daniel’s food were cut into small p ieces, D aniel co uld be lef t alone to pace him self whil e eating . Staff wo uld also ho ld Daniel’s hand and walk him to the cafeteria so that he w ould not run away a

nd take food from others. Peterson added that this was necessary because Daniel was strong and quic k. Peter son re calle d one s pecifi c inci dent w hen an other teache r with a plat e of ho t dogs unknowing

ly w alked by

as Peter son was wa

lking Da niel to the cafete ria. Dan iel immedia

tely seized the hot dogs and stuffed them into his mouth. However, Daniel did not choke. I nstead, he “just swallowed [the hot dogs] right down *** without blinking,” which “amazed” Peterson. Peterson added that they

were required to keep Daniel in the lea st restrictive environment at school . There fore, th ey could not i solate him

during mealtime, nor could they phy sically restrain him. Thus, staff would use “common sense” and monitor Daniel. Frankie Ross, Daniel’s paraprofessional aide , testified that she was also aware of Daniel’s issues with food. Before working with Daniel, Ross beca me familiar with Daniel’s individualized education plan and spoke with Daniel’s paraprofessional aide f rom the previous school y ear. She added tha

t Daniel was sever

ely mentally impaired and requ ired ass istance

with “every thing.” At mealtime, Ross was charged with the task of cutting Da niel’s food into small pieces. She would also sit with him one-on-one while he ate to ensure that he would pace himself a nd not take food from others. If D aniel ate too quickly or tr ied to sneak food away

from other students, Ross would hold Danie l’s hand t o stop the b ehavior . Ross rec alled two specific1-08-0786

5

oc ca si on s w he n D an ie l t ri ed to sl id e s na ck s a wa y fr om a s tu de nt se at ed ne ar by. Ross and Pe

terson te stified that on May 31, 2005, one of the

students in

Daniel’ s class was celebrating a birthday . Hostess “Suzy Q” cupca kes were provided to each student in the class as a treat a long with their bre akfast. Ross explained that th is was g eneral ly w

hat would
occur w hen any student wa s celebr

ating a birthday . There

had bee n at leas t one prior birthda y in Daniel’s class that year, and Daniel had handled the situation well. On this occ asion, Ros s cut Dan iel’s cup cake int

o small, bit

e-sized p ieces a

nd sat next to him while he ate. There were seven to nine students in Da niel’s class, and another student was seated on the opposite side of the table at which they were sitting. After finishing his cupcake , Daniel ate cereal. Daniel cr eated a “small mess” by

spooning up the milk, so Ross stepped backwards several feet to a sink to retr ieve a paper towel to clean up the mess. Ross stepped backward because she knew tha t if Daniel were not being watched, he would try to sneak food from another student. However, at this point, Peterson and Ross both believed that the other students had finish ed eatin g their cupcak es. Peterson also explained th at beca use Dani el had his
ow n c er ea l i n f

ro nt of hi m, th er e w as no mo ti va ti on fo r h im to le av e h is se at . A cc or di ng ly, Peterson remaine d behind h

is desk an d bega n marking

his attend

ance she et. Nevertheless, when Ross stepped back to the sink and beg an to wet a paper towel, Daniel got up out of his seat, ran around the table, gr abbed at least one other cupcake that ha d been left on the table, and stuffed the cupcake into his mouth. Peterson and Ross, seeing Daniel moving quickly toward the other

students’ side of the table, immediately went after him. Ross called for him to stop, but Daniel did not obey. Peterson and Ross both reache d him at the same time, but1-08-0786

6

Daniel already

had the cupcake in his mouth. These events unfolded in a matter of se conds. They tried to g et Daniel to spit the cupcake out, but were unsuccessful. Da niel began to gag a

nd choke. Peterson attempted to perform the Heimlich maneuver , then called the school nurses. The nurses arrived shortly thereafter, but were unable to do any thing for Daniel. They

called an ambulanc e and Da

niel was t aken to the hospita

l. Lambert testified that Daniel re mained in an induced coma for some time. After he awakened, he had some difficulty walking. Daniel incurred $80,000 in medical expenses, which were paid by

public aid. Daniel responded to the school’s motion for summary judgment by c ontending that because the schoo l was awa

re of his issues wit

h food, it was a cons cious disr egard for his safety to take even a few steps away from him at mealtime. Daniel did not attach any depositions or other materials to his response. Following argument, the court g ranted the school’s motion. The court specifically found that the “warm and nurturing” car e the school provided to Daniel could not, as a matter of law, amount to willful and wanton conduct. Daniel subsequently filed this timely appeal. Daniel now contends that the circuit court erred in g ranting the school’s motion for summary judgme

nt because the depositions and other items presented, when viewe d in the light most favorable to him, raised a genuine issue of mater ial fact as to whether the school’s conduct was willful and wanton. He specifically asserts that the school and its staff knew of his issues with food and that their actions in even momentarily stepping away

from him constituted a conscious disregard for his safety
.1-08-0786

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“Summary judgme

nt is appropriate where the pleadings, depositions, admissions and affida vits on file , viewed

in the lig ht most favorable t

o the nonmoving pa

rty , revea l that ther e is no genu ine issue as to any materia l fact an d that the moving pa

rty is entitle d to judgment as a matter of law.” 73 5 ILCS 5/2-1005 (c) (Wes t 2006); Kajima Con struction Service s, Inc. v. St. Paul Fire & Marine I

nsurance Co. , 227 I ll. 2d 102, 1 06, 879 N. E.2d 305, 3 08 (2007) . Ind eed, if the movan

t supplies f

acts whic h, if not c ontradicted, woul d warra nt judgme

nt in its fa

vor as a matter of law, the nonmoving party cannot rest on its pleadings to create a g enuine issue of material fact. Abram s v. C ity of Ch icago , 211 Ill. 2d 251, 257, 811 N.E.2d 670, 674 (2004). Nevertheless, su

mmary judgmen t should not

be allowe d unless th e movant’ s right to judgmen t is clear and free from doubt. Murray v. Chica go Youth Center , 224 Ill. 2d 213, 246, 864 N.E.2d 176, 195 ( 2007). We r

eview a circuit c ourt’s or

der gr anting s ummary judgmen t de novo
. Kajima Construction Services, Inc. , 227 Ill. 2d at 106, 879 N.E.2d at 308. In order to protect public funds f rom being dissipated by

damage awards in tort cases, the Local Government and G overnmental Employee s Tort Immunity Act (the Act) (745 ILCS 10/1- 101 et seq. (West 2006)) was enacted to shield local public entities and public employ ees from liability for ordi nary neglig ence committed dur ing the e xercise o f their du

ties. See gener ally Murray , 224 I ll. 2d at 22 9-30, 864 N.E.2d a t 185-86. S pecific ally , section 3-108(a ) provide s that, “Except as otherwise provided by this Act, neither a local public entity nor a public employee who undertakes to supervise an activity on or the use of any

public property is liable for an injury unless the local pub lic entity

or public employ ee is gu ilty of willfu l and wan ton condu ct in its supervision proximately causing suc h injury.” 745 I

LCS 10/3-108(a) (West 2006). The Act1-08-0786

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further defines “willful and wanton conduct” a s “a course of action which shows an actua l or deliberate intention to cause harm or which, if not intentional, shows an utter indiffer ence to or conscious disregard for the safe ty of others or their pr

operty.” 745 I

LCS 10/1-210 (West 2006). Genera lly, whether

conduct was willfu

l and wan ton is a que stion of fa

ct for a jury to decide. Murray , 224 Ill. 2d at 245, 864 N.E.2d at 194. However, w here the record shows absolutely no evidence

that the defendant display ed either an utter indifference to or a conscious disregard for the plaintiff’s safe ty, then the court may

properly de cide the issue as a matter of law. See, e.g. , Stiff v. Eastern Illinois Area of Specia l Education , 279 Ill. App. 3d 1076, 1082, 666 N.E.2d 343, 346 (1996). For example, in Stiff , the court directed a verdict for the def endant school after the plaintiff presented no evidence that school staff consciously disre garded her safety, a nd this court affirmed that determination. Stiff , 279 Ill. App. 3d at 1082, 666 N.E.2d at 346. The plaintiff in that case was a seven-y ear-old epileptic special education student requiring adaptations to improve her balance and coordination. Stiff , 279 Ill. App. 3d at 1079, 666 N.E.2d at 344. On the occasion in question, the plaintiff was taken on a field trip to hike in a state pa rk when the group came to a bridg e which had a fallen tree ly ing across the hand rails. Stiff , 279 I ll. App. 3d at 1079, 666 N.E.2d at 344. The plaintiff’s adaptive phy sical education teacher directed the plaintiff to proceed under the tree while anothe r teacher and a teache

r’s aide monitored the plaintiff from a few inches away ; however, as she attempted to circumvent the tree, the pla intiff’s leg buckled and she fell off the bridg e, sustaining injury. Stiff , 279 Ill. App. 3d at 1079, 666 N.E.2d at 344-45. The court found that because the plaintiff’ s teachers were mere inche s away from her while monitoring her progre ss, the school staff’s actions could not be said to have been1-08-0786

9

an “utter disregard” for

the plaintiff’s safety
. Stiff , 279 Ill. App. 3d at 1082, 666 N.E.2d at 346. Here, D aniel doe s not claim that the sc

hool inten

ded to har m him but, ra

ther, tha t it
cons ciou sly

disre gar ded his saf

ety durin g the May 31, 20 05, br

eakf ast bi rthda y p arty . We disagree. As in Stiff

, school staff maintained close supervision over Daniel, evincing concern for his safety. At the time in question, Peterson and Ross both believed tha t the other students had finished their cupcakes and that Daniel would not be motivated to take food f rom others when he had his ow

n cerea l to finish. Nevertheless, be ing awa re of Da niel’s iss ues, Ross c ontinued t

o monitor Daniel when she stepped back a few fe et to the sink without turning her back on him. These actions by sc

hool staff showed a concern for Danie l’s safety. F urther, as soon as Daniel left his seat, both Peterson and Ross acted to intercede and attempted to stop Daniel; howe ver, Daniel did not obey. Onc e again, we cannot say that the school staff’s actions showed an “utter disregard” for Daniel’s sa fety, and Da

niel came forward with no evidence to the contr ary. In reaching

this conclusion, we find the cases relied upon by Daniel, Jack son v. Chica go Board of Education , 192 Ill. App. 3d 1093, 549 N.E.2d 829 (1989), and Gammon v. Edwardsville Community Unit School District No. 7 , 82 Ill. App. 3d 586, 403 N.E.2d 43 (1980), to be distin

guishab le from the prese

nt case. In bo th of those

cases, s chool staff did ab solutely nothing to protect the students in question, in that they lef t them completely unattended a nd ignored a credible threat of violenc e by another student. Jackson , 192 Ill. App. 3d at 1095-96, 549 N.E.2 d at 830; Gammon , 82 Ill. App. 3d at 587-88, 403 N.E.2d at 44-45. For these reasons, we affirm the c ircuit court’s order granting the school’s motion for summary judgme

nt.1-08-0786

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Affirmed. GREIMAN and QUI

NN, JJ., concur.REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

_________________________________________________________________ DANIEL MI TCHELL, a Mino r by his Lega l Guardian, Shirley Lambert, Plaintiff-Appellant,
v. SPECIAL ED UCATION J OINT AGR EEMENT SCHOOL DISTRICT NO. 208, Defendant-Appellee.

________________________________________________________________ No. 1-08-0786 Appellate

Court of Ill

inois First District, Third Division Filed: October 22, 2008

_________________________________________________________________

JUSTICE THEIS delivered the opinion of the court.

Greiman and Quinn, JJ., concur.

_________________________________________________________________

Appeal from the Circuit Court of Cook County Honorable John A. Ward, Judge Pr esiding

_______________________________________________________________ __ For PLAI NTIFF- John A. Ste fani APPEL LANT, Joseph, Lichtenstein & Levinson 221 N. LaSalle St., Suite 2119 Chicago, IL 60601 For DEF ENDANT- William F. Gleason APPEL LEE, Hauser, Iz zo, DeTella & Petrarca , LLC 19730 Governors Highway, Suite 10 Flossmoor, IL 60422