NOS. 4-10 -013 7, 4-10 -013 8 con s. Opi nio n Fi led 4/2 9/11 IN THE APPELLATE CO URT OF ILLINOIS FOURTH DISTRICT JANE D OE-3, a Mino r, T hrough Her

Mot her and Nex t Fr iend, JULI E DOE- 3; and JUL IE D OE-3, Individ ually, Plaint

iffs-App ell ants, v. (No. 4-10-0137) JON WH ITE; McLEA N COUNT Y UNIT DISTRICT NO. 5 BOA RD OF DIRE CTORS ; JIM BRAKSICK; ALAN CHAP MAN; DALE HEID BREDER; EDWAR D HEI NEMAN

N; and JOHN PYE, Def

endant s-Appell ees.

----------- ----------- ----------- ----------- ----------- --- JANE D OE-7, a Mino r, T hrough Her

Mot her and Next Friend, JULIE DOE-7; and JULIE DOE-7, Individ ually, Plaint

iffs-App ell ants, v. (No . 4-10-01 38) McLE AN COU NTY U NIT DISTR ICT NO. 5 BOARD OF D IREC

TORS ; JIMBRAKSI CK; ALAN CHAPMAN; DALE HEIDBREDER; EDWA RD HEIN EMANN ; and JO HN PYE, D efen dants-Ap pell ees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from Circuit Court of Champ aign Cou nty No. 08L209

No. 08 L215

Honorable Michae l Q. Jones, Jud ge Presid ing.

JUSTI CE APPLET ON de liver ed the judg ment o f the co urt, w ith opinion. Justic es Steigmann and McCullou gh concu rred in the j udgment and o pinion. OPINION Plainti ffs Jane D oe-3 a nd Jane Doe -7 wer

e se cond -gr ade st

udents in defe ndant

Jon White 's cla ss at T

homas Paine Eleme ntary Sch ool in U rbana. Both girls
were sexually abus ed by White . They e ach, a long with thei r mot

hers, file d law

suits aga inst- 2 -

the named de fendan ts fo r thei r injuries. The claims at issue in this appeal are ba sed on all ega tions that defendants knew th atWhite had sexua ll y a bus ed stude nt s a

t hi s pr ev io us sch ool, bu t faile d to rep ort the ab use, and i nstea d all owed and faci litate d Wh ite to secu re employment in Urbana.

Defendants file d m otion s to dismiss, cl aiming they owe d no duty to

plaint iffs. The tria l court agr eed wit h defend ants and gr ante d their motio ns. Pl aintif

fs fil ed these inte rlocu tory appeals, challenging the cou rt's dismissal orders. We consolidated th e cases
on revie w. For the reasons that fo llow, we find the cou rt erred in di smis sing th e complai nts and w e reman d for fu rther p roceed ings
. I. BACKGROUND Def endant White was empl oyed a s an el ement ary sc hool t eacher

in th e McLean County Sch ool District (McLea n) d uri ng the 2002-05school ye ars. In August 2005, the Urbana School District (Urbana) hi red White and he began tea chi ng second grade at Thomas Paine Elementary School. During hi s first year at Urbana, the 2005-0 6 school y ear, plaintiff Jane Doe-3 was a stud ent in Whi te's second grade class at Thomas Paine. During

White's se condyear at

Urbana, the 2006-07 school y ear, plaintiff Jane Doe7 was a student in White's se condgrade class at Thomas Pain e. When each plain tiff was
a stu dent in Whi te's clas s, sh e was th e victi m of White's sexu al miscondu ct, sexual harassment, sexual grooming, and sexual abu se.

White's con du ct is not i n di spu te. He was eve ntu ally convict ed of

mole sting his students in both the McLean and Urbana school districts . Plaintiffs discovered that Whi te had s exually harass ed and ab us ed hi s elementary sch ool female stu dents w hile- 3 -

tea ching in Mc Le an, and that the indi vidual admin istrators at McLean had actual knowled ge of

Whit e's con duct . P laintiff s al so l ea rne d th at , due t o Whi te 's c onduct, the McLean administ

rat ors so ught White' s resi gnation from th eir dist ri ct. Pla intiff s al le ge d th e followin g: (1) no one at McLean r

eported W

hite's abuse to the Il linois Depar tment of Children and Fami ly

Ser vices (D CFS), (2) one

of the indivi dual admini strators at McLean created a falselypositive letter of refer ence or recommendation for White, (3) ind ividu al admi nis trators at McLean ente red into a severance agreement with White that concealed the sexual ab use, (4 ) the individual administrators fal sified informa tion on Urbana 's verificat ion-of- tea ching-ex

perie nce form su bmitted to Mc Lean for comp letion, an d (5) the individ ual ad mi nis trat or s f aile d t o i nf

orm U rb an a o f W

hit e' s m iscond

uct but , inst ead, "pass ed" h im to th at distri ct.

Plainti ffs refe r to McLean's failure to inform Urbana, and its recommendat io n of White f or e mploym ent

when it had actual knowledge of White's con du ct, as "pa ssi ng." In their compla

ints, plaintif

fs define "passing" as "a School District 's condu ct in p assin g a teacherwho is kn own to have committed teacher-on- studen t s ex ua l harassment and/or sexual grooming and/or sexual abuse to another Scho ol District without reporting [that conduct], *** conc ealing known prior teacher-on-s tudent sexu al har assme nt and/or s exual groomi ng an d/or s exu al abu se."

A. Allegation s in th e Second -Amen ded Comp laints In February 2009, plai ntiffs s eparately fi led second-a mende d compl aints, each al le gi ng v ar ious c ause s of

act ionag ain st W

hi te, Urba na , M cL ea n, an d v ar io us administ rat ors of each dist

ri ct. Of the num er ous cause s o f a ct io ns a

ll eg ed , t hos e a t i ssue- 4 -

in this appeal in volve on ly McLean and its indi vidual admini strators-- cou nts III throu gh XI of plaint iff J ane D oe-3's co mplaint and cou nts III thro ugh IX of plaintif f Jane D oe-7's compla int
. I n count II I in both compl aints, plaint iffs a llege M cLea n Assistan t Superint endent

Pye, S uperinte ndent C

hapman, Principa

l Heinemann, Assistant P rincipal Heid breder, and Pri ncipal B raks ick eng age d i n willf ul and wanton mi scondu ct. They alleged that each indi vidual, as White's su pervisor, had a mandato ry duty to repor t White's misconduct

in accor dance w ith the Ab used and N egl ecte d Child R epor ting Ac t (Repor ting Act) (32 5 ILCS 5/1 th rou gh 11.8 (Wes t 200 8))
. They failed to do so. Instead, they concealed and consp ired to conceal White's mis condu ct when they passed hi m to Urbana, willfu lly and wa ntonl

y, and with conscious disregard f or the saf ety of al l fore seeable

minor fema le st udents, i ncluding pl aintif fs. Asa result of the indiv idual ad mi nis trat or s' w illf ul and wanton cond uct, plaintiffs su ffered harm.

In cou nt IV in both complai nts, plai ntiffs alleged McLean was liable based on
a theory o f respondeat superior , a s the individual administ

rators' co nduct all ege d in count III occu rred with in th e scop e of thei r employmen t.

In cou nt V in bo th comp lain ts, pl ain tiffs ' moth ers alleged a cause of act ion for fra udulentc onc ealmen t, clai min g the i ndi vid ual admi nis trators had a du ty to re port White's misconduct b ut, inst ead, delib era tel y and fr audulentl

y conce ale d their actual knowled ge of his misconduct by m aking fra udulent misr

epre senta

tions t o Urb ana reg ardin g Wh ite. Urbana re lied o n the administr ator s' fal se re

prese ntat

ions in hiring White, there

by causing plaint

iffs' m others sever

e emotiona

l distr ess. In cou nt VI in both co mplaints, plainti ffs' moth ers alleged McLean was liable- 5 -

based on a theo ry

of respondeat superior , as the individ ual adminis trators' conduct alleged in c ou nt V oc cu rred wi thi n th e sco pe of t hei r emplo ymen t.

In cou nt VII in both co mplaints, plaintiffs alleged the indivi dual admi nis trators willfully conspire d to violate their mandatory duty to repor t White's misconduct

pursuant to

the Re port ingAct, c aus ing p lain tiffs harm
. In cou nt VIII in both compla ints, plaintiffs alleged McLea n was liable based on respondeat superior , a s the alleged cons piracy occu rred with in th e scop e of thei r employmen t.

In count I

X in both co mplaints, plaint iffs' moth ers al

le ge d M cLe an and t

he individ ual admi nis trators caus ed plain tiffs to suffer sexual abuse, sexual

haras sment , and sexual gro oming , injurie s for which plaint

iffs ha ve re ce ived me dical an d mental-h ealth treatment. Such treatment has resulted in medi cal exp ens es for w hi ch plai ntif fs' m oth ers
are responsible pursuant to sect ion 15 of the R igh ts of Ma rried P erson s Ac t(750 ILCS 65/15 (West 2008)), sometimes referred to as the family medical expense act and for which they seek r eimbur sement

fro m McL

ean a nd the indiv

idual administr ator

s. In count X of

plaint iff J ane D oe-3's co mplaint, s h e a lleged the individu al admi nis tra tors breac hed th eir fidu ciary d uti es of tru st to he r by willfu lly and w antonly passing White to Urbana. She cla imed t his breach of tr

ust proximately caused h er harm. In count XI, plaint

iff J ane D oe-3 all ege d McLe an was liabl e base d on respondeat superior , as the al leg ed breach of

fiduciar y du ty oc curred with in th e scop es of th eir employ ment. Plainti ff Jane D oe-7

did not alle

ge any cause of a ction rel ated to a bre ach of f iduciary duty
. B. M otions To Dism iss In Mar ch 2009, in both ca ses, M cLea n and t he individ ual a dministrators filed- 6 -

motio ns to dismi ss plainti ffs ' se con d-a me nde d co mpl aint pursuan t t o se cti on 2 -61 9. 1 o f t he Code of Civ il Pro cedu re (73 5 ILCS 5/2- 619.1 (West 2008)). Ass istant Princip al Heidbreder filed his own motion, a s he was not repr esented by M cLean's and the other a dministrato r's att orne y. Howe ver, Hei dbred er's m otio ns m irro red th ose of McLean and the other individ ual administ

rat ors. First , Mc Lean

and the individual administr ator s, including Heid breder, claimed th at pu rsuan t to the pu blic-d uty rule, th ey owed n o legal du ty to plainti ffs becau se p lain tiffs were never students i n the Mc Lean distr ict. Second , they

claim a private cause of act ioncan not

be ma int ain ed f

or a f ail ure to repor t und er the Repor ting Act. Third, plaintiffs su ffered no pecuniary damages and, therefore, neither they nor their moth ers can maintain a ca use of action for

frau du lent m isre pres entat ion
. Fourth, beca use pl aintiffs h ave failed to alleg e any viable cause of action against the indivi dual administ rat ors, a clai m for respondeat superior cannot be ma intaine d aga

in st McL ean. Fif th, pursuant to

sectio ns 2-604

and 2-6 04.1

of the Code o f Civil

Proce dure (73 5 ILCS 5 /2- 604, 2-604 .1 (

West 2 008)), plaint

iffs' compla

ints must

be dism issed be cause they cannot seek puniti

ve dam age s or incl

ude an ad damnum clau se in a pers onal- inj ury acti on. In Ju ne 20 09, th e trial c ou rt conducted a heari ng on de

fendants' motion to dismiss in both cases. A fter consi dering argu ments of c oun sel, th e cour t he ld t hat the pu blic-d uty rule applied and preclu ded plaintiffs' claims agains t McLe an and the ind ividua l administ rat ors. The court

foundthat nei ther McLean nor its ad mini strators owed a duty of care to pl aintif

fs. T he court a

lso f ound that t

here e xis ted no cau se o f a cti on f or the concept plaintiffs referred to as "passing." Further, the cou rt found fraud was not availab le
as a ca use of ac tion be cause ther

e had be en no pec

uniary l oss.- 7 - C. Motions To Reconsider In October 2009, plaintiffs separately filed motions to reconsider the trial court's dism issal o f their second-a

mende d compl aints b ased o n newly discove red e videnc e . Accordingto pla inti ffs, th ere was a related pen din g lawsu it in federal cou rt in the Central Distr ictof Illino is, Peo ria D ivision, filed by Ja ne D oe -1 0 an d Jane D oe -1 1 ( stud ent s in t he McLean school dis tric

t ) aga inst White , Mc Lean , and t he individual

administ

rators (case No. 08-CV

-1287 ). As pa rt o f discov

ery in t hat fe dera

l la wsuit, M cLea n andthe

individ ual admi nis trators produced a cop y of a January 2007 e-mail commu nication be twe en Assistant

Superintendent Pye and Julie Ba stings, the t eacher's union representative. Acc ording

to pla inti ffs, th e mess age from P ye wa s a "s moki ng gu n" i n term s o f demonst rat ing Mc Lean 's intent

to "pa ss" White to Urb ana. The e-m ail st ate d as follow s: "Plea se keep t

his infor mati on confi dentia

l, but I thou gh t you would be intere sted in hearing t hat Jon Whi te was arrested in Urbana today. I don't know the sp ecific charg es, b ut it app ears to be

much worse

than the issues he fa ced her e. I'm glad w e took the s teps we di d to get hi m ou t of th e dis trict
. I believe it was you who said that he was on a path to further probl ems. " In December 200 9, the trial court condu cted a hear ing on pl aintif

fs' mo tions to reconsi der. After con sideri ng t he arg uments of

counsel, the court

denied pl aintif

fs' motio ns, fi nding a s fol

lows: "I respectfully disagree with Plain tiffs that this e-mail can- 8 - somehow

be construed to su pport an a rgume nt that they did have direct and immediate control overeither of the Plaint iffs. As a sid e note , I think De fendants ar

e al so correct when t hey suggest

that 2 -204 is not compl etel y rest rict ed tovic ariou s liabili ty to r espondeat su perior situations , but at any rate, because I believe th e e-mail do es not op erate to allow the c ou rt to fin d no w t

hat eit her of the Plaint iffs w

as under t

he dire ct andthe immed iate contr ol ov er any of t

he Unit 5 De fendants, then I be lieve that t here continues t o be noduty. If the re is no duty, there

is no tor t. If ther e is no tor

t, t here i s no conspiracy. And if the Complaint was amended to inclu de thi s e-mai l, it is the cou rt's view that th en the c ourt w ould no t all ow amendm ent be caus e it woul d no t cur

e t he de fe ct i n the plead ing." The co urt en te re d a n or

de r p urs uan t t o Ill ino is S upr em e C our t Rule 3 04 (eff. Feb. 26, 2010) , al lowing plaint iffs to imme diate

ly appe al. These co nsolida ted a ppeal s fol

lowe d. II. ANAL YSIS A. Standard of Review In this appe al, plaint

iffs c hallenge the trial co urt's or ders grant

ing def endant s' section 2-619.1 m otions to dismi ss the secon d-amended complain ts. Defendants had claimed (1 ) th e complai nts sh ould be dism issed becau se plain tiffs were unable to plead any set of facts that would entitle them to relief (735 ILCS 5/2-6 15(a) (We st 2008)) or (2) even- 9 -

if plainti ffs had su fficien tly alleged oth erwise vi able cau ses of ac ti on, the cl aims were barred by the app licable sta tute of limitations and/or the Local Governmental and Governmental Employees Tort Imm un ity A ct (T ort Immu nity Act) (745 ILCS 10/1-10 1 t h rough 1 0-101 (West 2008) ) (735 ILCS 5/2 -619 (West 2008))). Regardless of whether the cou rt dismissed plaint iffs' complaints pursuant to sectio n 2-615 or 2- 619 , or a comb inatio n of both sections pursuant

to sec tion 2- 6 19.1 , our standar d of revie

w is the same. We review de novo the court's orders of dismissal
. Kean v. W al-Ma rt St

ores, Inc. , 235Ill. 2d 3 51, 361 (2 009)
. In doing so, we will ac cep t as tru e all wel l-pl eaded factu al allegat ion s. Morris v. Illinois Central R. R. Co. , 382 Ill. Ap p. 3d 884, 8 86 (2 008 ).

B. Plain tiffs' A llegations of Defendan ts' Liabi lity Under our fact-pleading standard, plaintiffs mu st allege f act s su fficien t to bring a cla im with in a l egally re cogn ized cau se of a ctio n. Vernon v . Sch uster , 179Ill. 2d 338, 344 (19 97). In the

all ega tions re le van t t o t his a ppe al , p laintiff

s al le ge Mc Le an and t

he individ ual admi nis trators acted in a willful and wanton manner by passing White t o their school district--an act whi ch p roximately cause d pl ai nt if fs ' in jurie s. Whe n pl ea din g w illf ul andwanton condu ct, a plaintiff must establish th e basic elements of a negligence clai m pl us the addi tion al re quirem ent tha t t he de fe nda nt a cte d with a

con scio us dis re ga rd

fo r t he plaintiff's welfare. Doe v. Ch icago Board of Education , 213 Ill. 2d 19, 28 (2004). In other words , plainti ffs mu st allege the exi stence of a du ty, a bre ach of th at du ty, an inj ury proximately caused by th e breac h, an d th at th e breac h wa s a res ult of a co nsc iou s di sregard for plaintiffs' welfare.

"Whe the r a duty

of car e e xis ts i s a q

uest ionof la w t o be determin ed b

y the- 10 -

cou rt." Bajwa v. Metr

opoli tan Li

fe I nsuranceCo. , 208 Il

l. 2d 41 4, 422 (2004). Todecide, the court must anal

yze t he fact ual cir cumstance s giving rise to th e liti gation
. Hernandez
v. Rapid Bus Co. , 26 7 Il

l. App. 3d 51 9, 5 22 (1 994 ). Those circumst ances inc

lude the n atu re of the re la tio nshipbetw

ee n the pla intiff and the def end ant . I f t

he l aw imp ose s upon

the defe ndant

an obligati on to act reas onably fo r t he plaint iff's b enef

it, b ased o n the ex

istence of a re lat ionship, then an enforceable duty exis ts. See Happel v. Wal-M art S tores, Inc. , 199 Ill. 2d 179, 1 86 (200 2). D efen dants argue t hat the law ha s provi de d an answer to the question of whether a duty exis ts in this case. They claim, as t he t ri al cour t he ld, tha t t he pu blic-d uty rule applies here, meaning they ow ed no du ty to protect individu al citi zens, such as plaintiffs, from harm.

The pu b lic-du ty rule is a common-law prin ciple that protects a governmental entity from tort liab ility s ought by an individual injured member

of soci ety. The basis upon which the

rule is ground ed is th at the govern mental enti ty owes a d uty of care to the public atlarg e, not to individual members of the pu blic. See Zimmerman v. V illage of Sk

okie , 183 Ill. 2d 30, 3 2 (1998). Th e rule h as hi storically been a pplied to case s involv

ingcondu ct by policeme n, fireme n, or ot her first-r

esponder-type per

sonnel of var

ious branches of governmental entities. However, the First District appliedthe ru le to a school district f or the first time in 1994. Se e Thames v. Board of Educati on of t he Cit y of C hicago , 269 Ill. App. 3 d 210 (1994). They did so again in 1996. See Lawson v . Cit y of C hicago , 278 Ill. App. 3d 628 (1996). Both of thes e cases h eld that t he defe ndant sc

hool district s owed no duty to prot ect the pla intiff s, who we re individual st udents in tho se school distr icts, separate or apart from th e membe rs of the d istri ct as a wh ole. Th e cou rts fu rther h eld th ere- 11 -

existed no exception or special relationsh ip that wou ld have served to est ab lis h the school district's duty of care to its indi vidual members. See Th ames , 269 Ill. App . 3d at 219; Lawson , 278 Ill. A pp. 3 d at 646.

This "special-duty exception" applie s when the ot herwi se immune governmentalactor

assu mes a sp ecial relation shi p to an indivi dual member of the general populati on. Huey v. Town of Cicero , 41 Ill. 2d 3 61, 363 (196 8). The special-duty exce ption operates to establish (1) a duty where there would otherwis e be none und er the com monla w public-duty rule and (2) liability f or negligence where

it otherwise w

ould not li e pursuant

tothe To rt Im mun ity Ac t. See Call oway v. Kinkel

aar , 16 8 Ill. 2d 312, 326 -27 (199 5); Doe v. Calu met City , 161 Ill. 2d 3 74, 38 5-86 ( 1994).

Illinois cou rts have e stablis hed fou r elements th at mus t b e sati sfie d befo re the spe cial -du ty exc epti on ap plie s. Th ose are (1) the go vernm enta

l ent ity must be un iqu ely
awar e of t he part icular dange r or

risk to which the

plaint iff is exposed; (2) there mu st be all ega tions of specific acts o r omissions on the enti ty's p art; (3) the sp ecific acts mu st be aff irma tive o r wil

lful in na ture; and (4) t

he injury must

occur wh ile the plaintiff is u nder the direc t and imm ediat e cont rol of em ployee s or a

gent s of t he entit y. Burdinie

v. V illag e of Glenda le Hei ghts , 139 Ill. 2d 501, 508 (1990)
.

Applying

the se e le me nts to the

fa ctsof itsscho ol -dis tr

ict cas e, the Thames court found that the exce ption did

not app ly, as t

he plainti ff had fai led to prop erly allege the existence of

a special duty owed to h er by th e sch ool di stric t. Thames , 26 9 Il l. App. 3d at216. The facts of Thames can be summarized as f ollows. The plaintiff st

udent was shot insidea cla ssroo m at one of the def endant school dis tric

t's high schools by a

fellow stu dent,- 12 -

who had con cealed a firearm ins ide h is b ook b ag. Thames , 269 Ill. A pp. 3 d at 211. Plainti ff sued the schoo l district, asserting that it owed h er a duty to exercise reasonable care for her safe ty. T he school d

istri ct al leg edly b rea ched that

duty by fa

iling to warn par

ents an d stu dents about the potential danger of the presence of weap ons and b y failing to take adequ ate measures, such as instal ling m eta

l det ector

s, to erad icat e the dange r. Thames , 269 Il l. App. 3d a

t 2 14 . T he t ri al cour t ha d de nie d th e school b oar d's mot ion to d ismiss, finding the compl aint se

t for th sufficie nt al

leg ation s of a

"special duty." Thames , 269 Ill. App . 3d at 211.

The Firs t Dist ri ct disagreed that plaint iff had sufficien tly a lleged t he existence of a spe cial du ty. Inthe

app el la te cour t'sopi nio n, the

plaint iff had not pl eade d sufficie nt facts to transform her "from a g eneral citizen into a n object of spe cial concer

n." Thames , 269 Ill. App. 3d at 216. The cou rt held the pla intiff did not and could not

all ege sufficien

t facts esta

blishing that the school distr

ict had a unique awareness of the particular danger (th e first element o f a speci al-du ty anal ysis) or that it had immediate a

nd direct contr

ol of the plaintiff a

t the time o f

the in ju ry (the fourth elemen t of th e analy sis ). Thames , 269 Ill. App. 3d at 219. The court reversed the trial court's order denying the school dis t rict's moti on to dis mis s. Thames , 26 9 Il l. App. 3d at 2 19-2 0. Simil arl y, in Lawson , the First District hel d that the plai ntiff h ad failed to
su fficien tly

allege facts th at wou ld impose a special duty upon the de

fendantschool dis tric

t
or the def endant city to protec t the plai ntif f stu den t from h arm. Lawson , 27 8 Il l. App. 3d at 646. As in Thames , the plaint iff in Lawson was sh ot by a fellow s tude nt on schoo l prem ises. Lawson , 27 8 Il l. App. 3d a t 631. Unlike the high school in Thames , the hi gh- 13 -

school in Lawson had insta lle d met al de

tect ors. Lawson , 27 8 Il

l. App. 3d at 632 . Howe ver, the court hel d that the cit y's vol untary under

taking of in st alling t

he detector

s did not
over ride the immunity that

the district

enjoyed un der the Tor t Im munity Act b ecause instal ling the detec tors involv ed a gove rnmental function or conduct that was immune fr om liabi lity
. Lawson , 278 Ill. App. 3 d at 635.

The trial court here, relying o n Thames (with out men tioni ng Lawson ), held that the public-duty rule applied, finding McLean ow ed no duty to indiv

idual stude nts, espec iallythose not in the same distri ct. Furth er, the cou rt held th at the sp ecial-d uty exceptiondid not apply be c ause Mc Le an had no controlove r W hite whe n he committed t

he acts that had inj ure d pla inti ffs i n Urb ana. In annou ncin g its decision t o dismiss pl aintif

fs' compla ints, the court

stat ed as f

ollo ws: "I believe the Public Duty Rule first of all does ap pl y here. I belie ve Mr. Ke arns [(Mc Lean' s atto rney )] i s co rre c t when h e says the Thames case does stand for

the proposition that the Pu blic Du ty Ru le applie s to sch ools, and it essen tially says that mu nici palities su ch as the Bloo mingt on Sch ool Distri ct do n't o we a du ty to p rotect ind ivi du al ci tizen s." The court then applie d the s pecial- duty exceptio n and fo un d plain tiffs h ad failed to esta blish the fou rth element, that of di rect an d imm edia te con trol, at th e time the i nju ry
occ urre d. Cont rary

to de fendants' ar

gument in this appe al a nd the trial court's finding atthe hea ri ng o n the

mot iontodismiss, we fin d th e public- duty ru le does not apply u nder- 14 -

the circumst ances o f this ca se. As m ention e d above , the rule g ener all y applie s when a plainti ff alleges damage s bas ed on a govern menta l enti ty's failu re to pe rf orm adequ ate governme ntal services. Examples of such services include allega tions that the county's
emer gency dispatch system faile d to work prope rly (Donovan v. Village of Ohio , 397 Ill. App. 3d 844 , 84 5 (201 0)); the po lice f aile d to t

imel y resc ue people

fro m a pil eup in a stairwell (

Anthony v. C ity o f Ch icago , 382 I

ll. App. 3d 9 83, 984 (2008)); the ci ty failed to enfor ce a pro vision of the buildi ng code

by granting

a person a pe rmit

to cons truct access onto the roof of

an apartmen t bui lding ( Bowler v. C ity o f Ch icago , 376 Ill. App. 3d 20 8, 209 (2007)); the po lice f

aile d to respond whe n dispatc hed to a call of a v ehicle in a dit ch ( DeSme t v. C ounty o f Rock Isl

and , 21 9 Il

l. 2 d 497, 50 0-01 (20 06) ); o r t he county medical examiner

negligently performed

an autops

y ( Sims-Hea rn v. Offi

ce of M edical Examiner, 359 Ill . App. 3d 439, 441 (2005)). This is no t such a case, nor anything similar. This is not
a case w here M cLea n or t

he individual

administ

rators hav

e al leg edly neglig entl

y perfor med their ordinary g over

nmenta l, po licing , or enfor cemen t-type function. Inste ad, t

his is a case whe re plaintiffs a

lleg e the indivi d ual

ad mi nis trat or s e ng ag ed in i nt en ti ona

l egr egio us conductwhi le in th e cou rse of thei r employmen t, andthat t he conduct har

med pl aintif

fs. It is not rel evant to t

he analysis here whether the public-duty rule can or sho uld be appl

ied to a school

distr ictor i n a s chool co nte xt . T he co nte xt is not t he dete rmining

fact or. Inste ad, i

t is t he nature of the alleged conduct of th e individu al admi nis trators tha

t b ar s the

rule's applicabili ty here. There is a great distinction between conductthat w

ould giv e rise to a conclusi on that a g ov ernmental en tity owes a duty to prot ect the pu blic at large and not i ndivid ual citizens an d condu ct by the governmental- 15 -

entity that spe cifi cally creates the d anger c ompl ain ed of. Plaintiffs have all ege d conduct of th e latter ty pe.

Wit hout the applicatio n of t

he public-duty r

ule, w e must determine whether plaint iffs ha ve al leg ed suffic

ient f acts to esta

blish the ex

istence of any duty running from McLean and the ind ivid ual a dmini strators to plai ntiffs. To determine w heth er a duty exist s, cou rts look to ce rta in relevant factors , inclu ding th e followin g: (1) th e reasonable foreseeabili ty

that th e defen dant's condu ct may inju re another, (2) the likelihood of an inj ury occurr

ing, (3) the magnitude of the burden of

guardi ng agains t su ch i nju ry, and (4) the consequences of placing that b urden on t

he d efend ant. City of Chica go v. Be retta U.S.A. Corp. , 213 Ill. 2 d 351, 3 91 (20 04).

Genera lly, th ere is no duty req uiring one person to

protect another fr

om crimin al a ctivit

y by third perso ns absent a spe cial relatio nsh ip. Iseberg v. G ross , 227 Ill. 2d 78, 87 (200 7). Here, there is no "s pecial relati onsh ip" b etween th e in dividu al admi nis trators of one

school dis tric

t and t he s tud ents of ano ther. Ho we ve r, ev enwit hout a "spe cial relation shi p," a pers on cou ld still be li able for the cri minal acts of a third p arty if that pers on p erformed a volu ntary underta kingto pro tect an oth er from h arm. Rowe v. State Bank of Lombard , 125 Ill. 2d 203, 217

(1988). Plainti ffs arg

ue that t he commo n law s hould impose a duty upon McLean a nd the individual administrato rs to protect pla intiffs from White's conduct ba sed upon their knowled ge of White's pas t co nduct and the reasonable fo reseeabili ty of fu ture lik e cond uct. Plainti ffs claim th at McLean and th e individual administ

rators a ssumed a duty to plai ntiff s, as Ur bana s tudents, by v

ol unta rily un der

ta king the act of creatin g and sen ding a letter to- 16 -

Urbana endorsing Whit e's ab ility to teach elem enta ry school stude nts. Ac cordin g to plaint iffs, McLean, th rough its indi vidu al admini strators, volu ntarily underto ok this duty, but did so with a knowin g and consciou s disregard for plaintiffs' well-being by either
reco mmendi ng White or fa iling to warn of

White's se

xual a buse of his st

udents in M cLea n. Section 324A of th e Restatemen t (Seco nd) of Torts, which Illinois courts have adopted (see Pippi n v. Chica go Hou sing Auth ority , 78 Ill. 2d 204, 21 0-11 (1979)), addresses the conce

pt of liab ility b ased o n a voluntary under taking and pr ovides as fol

lows: "Onewho undert akes, gra tuit ously or

for consider ation , to render services to ano ther which he shou ld recognize as
nec ess ary

for the protec tion of a third pe rson o r his thing s, is subject to liabili ty to th e thi rd pers on fo r ph ysi cal h arm result ingfrom h is fa ilu re to exerc ise reason able c are to prot ect his underta

king, if (a) hi s fai lure to exerc ise reason able c are increases the r

isk of such harm, or (b) he has un dertaken to p erform a du ty owed by the other

to the third per

son, or (c) the harm is su ffered bec au se of rel iance of the other

or the third person

upon t he
u nde rtaki ng." Restatement ( Second ) of Torts §324A, at

142 (1 965). In order for a duty to arise u nder circums tances to which section 324A may- 17 -

apply, there must be su fficien t facts to put t he defe ndant o n notice that an inter

vening criminal act is likely to occur. In other words, in the con text of aninter vening crimi nal a ct by a third p erson, "th e existen ce of a legal du ty requ ires th at the occ urrenc e be reasonab ly forese eable." Mazz

one v. Chicag o & North Western Transportati on Co. , 226

Ill . App. 3d 56, 58 (1 992) . On t

his point, our suprem e court has stated: "A f amiliar treatise on torts war ns that it mu st be remembered

tha t t he mere f

act that misconduct on the part o f another mig

htbe foreseen i s not of i tself su fficien t to place t he respon sibi lityupon the defenda nt. W. K eeton , Pros ser & Keetonon Torts §4 4, at305 (5th ed. 1984). Further, even though the interve ningcause may be regarded as foreseeable, the defe ndant is not l iabl e unless t he defe ndant'sconduct has created or inc reased an u nreas onab le ris k of h arm throu gh its inter ventio n. W. Keet on, P ross er & K eeton on Torts §44, at 305 (5th ed. 19 84). These com ments, cont ained in the section of the tr eatise discussing

inter vening caus es, refer the reader to the ea rlier discuss ion of the standard of cond uct: Un der al l ordinar y and nor

mal circumst ances, in the ab sence o f any
reasonto exp ect the c ontrary, the actor may reaso nably proceed upon the assumpt ion that others will

obey the crim

inal law. W. Ke eton, Prosse r & Kee ton on Tort s §33, a

t 201 (5th e d. 1984). In oth er sit uat ion s, h owev er, the actor may have a d uty- 18 - of care for the pr otect

ion of others . Such situat ions include situatio ns in which the actor has a spe cia l resp ons ibi

lit y fo r t he pro tectionof the p laintiff, p erhaps arisin g by con tract o r founde d u pon a spe cial r ela tionship be

twee n the tw

o, a nd whe re there

is an espe cial tempta tion a nd opp ort unity for criminal miscondu ct brought about by the d efendant. W. Keet on, Pros ser & Keeto n on Torts §33 , at 201- 03 (5 th ed. 1984). Theseexcerpts from the tr eat ise ill ustrate the link between the question s of the e xiste nce of a dut y an d th e exist ence

of l ega l cause. Both depend on a n analysis of forese eabil ity." (Int erna l quota tion ma rks om itte d. ) Be retta U.S. A. , 21 3 Ill . 2d a

t 409 -10. Further supp ort for plaintiffs' allega tions may be found in section 31 1 o f t he Restatement (Second) of Tort s, which our supreme court a dopte d in Boardof Education
v. A, C & S, Inc. , 131

Ill. 2d 428, 455(19 89), entit led "Negl igent

Misr epre senta

tion I nvolvi ng Risk of Physi cal Har m. " Tho ugh t

he sectio n refers to negli gent misrep resentatio n, it cou ld be applied equally to fraudu lent mis representati on, inc ludi ng only a different mental state. The sect ion pro vides a s fol

lows: "(1) One who negligently gives false informat io n to another is su bject to liability for physi cal harm caused by action taken by th e o the r in reasona ble r eliance upon such- 19 - informati on, wh ere suc h h arm results

(a) to the ot

her, or (b) to such third persons as the actor sho uld expect t o b e p ut in peril by the a ction take n. (2) Such negligence may consist of fai lur e to e xercise
reaso nable care

(a) in ascertai ning the acc ura cy o f t

he informat ion, or (b) in the manner in w hich i t is
comm un icat ed." Restat ement (Se cond) of Torts §311 (1 965). "The rule of liability in section 311 ex tends to any

def end ant who, in t

he
co ur se of an acti vity which is in furtherance of his own intere sts, undertake s to give informat ion to another , and knows or should realize t

hat the safet

y of the person

or oth ers may dep end upon t he accuracy of the infor mation." (I nternal

quotation marks omitt ed.) Boardof Education , 131 Ill . 2d at 455(quoting

Rest ate ment ( Second ) of Torts §311, cmt. b (1965)). There appears to be some overl ap in the ap plicab ility o f this Restat ement sect ion andthat o f se ctio n 32 4A, a s both impos e liability upon the actor's un dertaking of an affirm ative act.

Reg ardl ess of which specific tort princip le applies, under the facts alleged in this case, there

exist s both (1 ) a vol

untary under

taking on t he individual administ rators'- 20 -

part that was performed wi th an alleged intentio nal disreg ard for plainti ffs' welfare, as w ell
as (2) the occu rrence of a reasonably foreseea ble inter ven ing

crimi nal act cr ea te d by the administ rat ors' conduct. If t

he wel l-ple aded a

llegat ions set for th in plainti ffs' com plaints
are true, as we must assu me they are at this point in the proceedings, the in dividu al administ rat ors, by creat

ing and tender

ing a fal se lett er of r

ecommendat

ion, fail ing to rep ort White's co nduct, a nd failing to warn Urbana o f Whi te's con duc t, created the o pportu nity for Whi te to c ommi t fu rther a bu se at U rbana. In fact, furth er abus e was no t only foreseeable, but like

ly. We also note that Illinois law has estab lish ed a d uty to warn oth ers in cert ain circu mstanc es. "A d uty to warn exists where there is u nequal knowledge, actual or constructive, and the defendant , possessed of such knowledge , knows or shou ld know that h arm might or c ould oc cur if no warning

is give n." Kirby v. G

eneral Paving Co. , 86 Ill. App. 2d 453, 457 (1 967).

Because the indivi dual admini strators knew that White had s exually abused stu dents in McLean , it

was reasonably foreseeable that White would do th e same at Urbana. As all ege d in the co mplaints, the individual administrators voluntar ily undertook a

duty, performed

the du ty in a w illful an d wanton manner, and as a resu lt , a reasonably foreseeable intervening criminal act occu rred, causing plaintiffs' damages. Therefore, under the factu al circu mstanc es of th is case as alleged by plaint iffs in their respective compla ints, an d af

ter applying

the com mon-la

w doctr ines set for th abov e to t hose ci rcumstances, we find that pl aintif

fs have sufficien

tly a lleged t hat the indi vid ua l admi nis trators and Mc Lean , through the ac t ions of i t s individual

administ

rators, had a duty either ( 1) to warn Urban a and its stu dents o f the dan ger, or (2) to take reaso nable- 21 -

preca utions by r

epo rt ing the abus e to DCFS to preven t foreseeable further criminal acts of abuse. McLean and its admini strat ors co uld have refused to prepare a letter of
recomm endat

ion, warned Urbana of the potential danger, and/or re ported the abuse t o DCFS a s m andated b y the Rep orting Ac t. Instead, acc ording to p laintiffs , they i ntenti onally chose to create a condition th at placed plaintiffs and other stu dents at Urba na at t he risk of forese eable harm. They created a condition condu cive to futu re abuse byWhite. Subject to the a ppl icab le stan dards of pro of, th ese all egatio ns m ay be s uff ici ent to su ppo rt plaint if fs' claim s for dam ages. As an aside, we note that the Tor t Immunity Act is not available to defend ants h ere. Jus t as the p ubli c-du ty rule di d not app ly, the To rt Immuni ty Actdoe s no t a

ppl y ba sed on t he nat ure of the condu ct at issue h ere. See Calume t City , 161 Ill. 2d at 39 0 (pl eading of w

illful and want on conduct removes cause of action from
applic ability of the Tor

t Immunity Act pursuant to section 2 -202 (745 I LCS 10/ 2- 202 (Wes t 2008))). In su m, we find the trial co urt erred in granting defen dants' motion to dismiss. Plain tiffs have alleged a cause of action based on McLean's and the indi vidual administ rat ors' voluntary underta king and their provision of inform ation wit h the intentional disr

eg ar d fo r p laintiff

s' w el fa re in l ightof the foreseeable intervening criminal act likely to c aus e plainti ffs ph ysic al harm. Abs ent an allege d du ty or c ause of action contemp lated

under the Tort Immun ity Act, we find McLean and th e individu al admi nis trators are wi

tho ut t he pr ot ect ionof the Act. See In re C

hicagoFlood Lit

igation , 176 Ill. 2d 179 , 192 (199 7) (local governmentalun its are liable i n tort u nless a to rt-immu nity- 22 -

statutory ex

ception applies to

the duty as alleged). We feel co mpelled to n ote tha t pl aintif fs ha ve a ll eg ed t hat Mc Le an and t

he individ ual admi nis trators engaged in c ond uc t wh ich , if tru e, can be described in no oth er te rm than e gr egio us and, if

true, condu ct that may shock the consci ence. The us e of that phrase is akinto th e "s tate-c reated d anger" doctrine developed, applied, and adopted by several of

our fede ral distr ict and circuit co urts. We note that the doctrine has not yet been recognized by any Illinois appellate co urt, ou r sup reme cou rt, or th e Un ited States Supreme Court. We mention this doctrine because i t specifically applies to s tate conduct wh ich rises to the level of egreg

ious c onduc t in the most extreme cases. See King v. East St. Louis School District 189 , 496 F.3d 812, 81 4-15, 818 (7t h Ci r. 2007) (school personnel 's enfor cemen t of alleged sch ool polic y proh ibiti ng a student's reentry to the school after hou rs resulted in a stu dent's abdu ction and rape w as not cond uct that cou ld be character

ized as sufficient to

"shock[] the conscience"). Under th e "stat e-cre ate d dang er" do ctri ne, t he state may be li able

beca use "'t he government h as a con stitu tional d uty to protect a person against inju ries inflicted by
a third-pa

rty when it affir

mativel y places the person in a position of danger the perso n
wou ld not ot

herwise have f aced'" and the stat e act or's co nduct in fail ing to protect an individ ual shocks the consci ence. Walte r v. Pike Count

y, Pennsylvania , 544 F.3d 182, 192 (3d Cir. 2008) (qu oting Kamara v. At torney General , 420 F.3 d 20 2, 206 ( 3d Ci r. 2005)). Conduct sufficien t to shock

the consc

ience is a "necessarily fact -bound inquiry. " King , 496 F.3d at 818. Likewi se, the an alysis set f orth above i n thi s case i s inten ded to ap ply speci fically to the

pa rt icul ar an d uni que

fa ct s a nd c

ir cum st an ce s o f t

his ca se , i n t

hat our- 23 -

deci sio n h erein relied solel y on the a llegati ons set fo rth i n pla inti ffs' comp lain ts. III. CONCLUSION For the fo reg oing r

easons, we r ever

se the t rial court's judgment

and remand for further proce edings
. Reve rsed a

nd rem anded.