No. 2--01--1444	

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

JANE DOE,	)	Appeal from the Circuit

	)	Court of Du Page County.

	Plaintiff-Appellant,	)

	)

v.			)	No. 00--L--841

	)

STEVEN DIMOVSKI, Indiv. and	)

as Agent of Westmont Community	)

Unit School District No. 201, and	)

and WESTMONT SENIOR HIGH SCHOOL,	)

		)

	Defendants	)

	)

(Board of Education of Westmont 	)	Honorable

Community Unit School District 	)	Patrick J. Leston,

No. 201, Defendant-Appellee).	)	Judge, Presiding.

___________________________________________________________________

	JUSTICE BYRNE delivered the opinion of the court:

	Plaintiff, Jane Doe, appeals the judgment of the circuit court

of Du Page County that dismissed certain counts of her complaint

against defendant, Board of Education of Westmont Community Unit

School District Number 201 (the Board) pursuant to section 2--

619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2--

619(a)(9) (West 2000)).  Defendants Steven Dimovski, individually

and as an agent of Westmont Community Unit School District No. 201,

and Westmont Senior High School are not parties to the present

appeal.  We reverse and remand the cause for further proceedings.

	Plaintiff filed a complaint against defendants on February 15,

2000.  The suit stems from allegations of sexual abuse in which

plaintiff alleges that, from November 1998 through May 1999, Dimovski, a teacher and varsity basketball coach at Westmont High

School (Westmont), engaged in an inappropriate sexual relationship

with plaintiff, who was under the age of 18 and a student of

Westmont at the time.  Of relevance to the present appeal are

counts V through VII of plaintiff's first amended complaint, which

are directed against the Board and sound in negligence (count V),

negligent infliction of emotional distress (count VI), and willful

and wanton misconduct (count VII).

	Count V of the complaint alleges that, before he initiated the

inappropriate sexual relationship with plaintiff, Dimovski engaged

in a course of inappropriate sexual harassment and abuse and made

inappropriate sexual advances and statements to a female student

under the age of 18 at Westmont, including expressing his desire to

see the student naked, requesting that she perform a strip tease

for him, and following her to her place of work and her residence,

where the sexual harassment, advances, innuendo, and suggestion

continued.  Count V further alleges that the female student and her

mother provided this information before November 1998 to Jennifer

Gliwa-Bell, an agent, servant, and employee of the Board, and

Carole Wyrostek, also an agent, servant, and employee of the Board;

that neither Gliwa-Bell nor Wyrostek undertook a thorough

investigation of this complaint, informed anybody else of this

complaint, undertook measures to prohibit Dimovski from engaging in

this inappropriate behavior in the future, or contacted the

Department of Children and Family Services (DCFS) about this

complaint; and that the Board knew or should have known that

Dimovski was engaging in inappropriate sexual conduct with another female student at Westmont and the Board's failure to properly

handle this information ultimately led to and precipitated the

commencement of the sexual abuse of plaintiff.

	Count V further alleges that the Board owed a duty to its

students to provide and employ appropriate educational services and 

competent teachers and counselors and to safeguard its students

from harmful conduct that might be undertaken by its teachers.  It

also alleges that the Board breached these duties by, inter alia, failing to hire competent and adequately trained personnel; failing

to undertake a thorough investigation into previous complaints of

inappropriate sexual behavior leveled by a female student against

Dimovski; failing to adequately supervise its agents, servants, and

employees; allowing Dimovski to abuse his position of authority

through a course of sexual abuse; and failing to notify the DCFS about

previous complaints of inappropriate sexual behavior involving

Dimovski.  

	In count VI, plaintiff alleges that the careless and negligent

acts or omissions alleged in count V proximately caused injuries to

plaintiff, including emotional distress.  In count VII, plaintiff

alleges that the Board knew or should have known that its failure

to properly investigate previous complaints of sexual indiscretions

leveled against its teachers would likely and probably result in

injury to its students, including plaintiff; that the Board

knowingly and intentionally disregarded the substantial risk and

danger that it knew or should have known would result; and that, by

disregarding this knowledge of substantial risk posed by this

conduct, the Board was guilty of willful and wanton misconduct in, inter alia, failing to thoroughly investigate these previous complaints of inappropriate behavior made against Dimovski.

	On August 23, 2001, the Board filed a motion to dismiss

plaintiff's complaint pursuant to section 2--615, asserting that

plaintiff failed to sufficiently plead a cause of action.  The

Board also filed a section 2--619(a)(9) motion to dismiss, arguing

in the alternative that it was entitled to immunity based on

sections 2--201 and 3--108 of the Local Governmental and

Governmental Employees Tort Immunity Act (Tort Immunity Act) (745

ILCS 10/2--201, 3--108 (West 2000)).  The trial court denied the

Board's section 2--615 motion to dismiss, but granted the Board's

section 2--619(a)(9) motion, finding that sections 2--201 and 3--

108 of the Tort Immunity Act immunized the Board from liability. 

Plaintiff timely appeals.

	Immunity under the Tort Immunity Act is affirmative matter

properly raised in a section 2--619(a)(9) motion to dismiss.  Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995).  Where a cause of action has been dismissed pursuant to a section 2-

-619 motion, the questions on appeal are whether a genuine issue of

material fact exists and whether the moving party is entitled to a

judgment as a matter of law.  Brown v. King, 328 Ill. App. 3d 717, 721 (2001).  On appeal, review is de novo.  Brown, 328 Ill. App. 3d at 721.

	Plaintiff first argues that the trial court erred in finding

that section 2--201 of the Tort Immunity Act applied.  Section 2--

201 gives governmental entities immunity from liability for

injuries resulting from "the determination of policy or the exercise of discretion."  745 ILCS 10/2--201 (West 2000).  In order

to obtain immunity under section 2--201, the particular act or

omission sought to be immunized must be both discretionary and 

involve a policy choice.  Arteman v. Clinton Community Unit School District No. 15,  198 Ill. 2d 475, 484 (2002).  Plaintiff contends that, once the Board was informed that its employee had sexually

abused a female student, any discretion the Board may have had was

removed by the requirement that the matter had to be reported to

DCFS under the Abused and Neglected Child Reporting Act (Reporting

Act) (325 ILCS 5/1 et. seq. (West 2000)).  

	The Reporting Act provides that school personnel "having

reasonable cause to believe" a child known to them in their

professional or official capacity may be an abused child "shall

immediately report or cause a report to be made to [DCFS]."  325

ILCS 5/4 (West 2000).  The Illinois Administrative Code describes

and categorizes specific harms that must be reported.  89 Ill. Adm.

Code §300 app. B. (2002).  "Sexual exploitation" is defined as

"[s]exual use of a child for sexual arousal, gratification,

advantage or profit," including, but not limited to, "indecent

solicitation of a child/explicit verbal enticement."  Ill. Adm.

Code §300 app. B at 8 (200032).  Sexual exploitation is a "Priority

I" harm, which generates the initiation of an immediate

investigation by DCFS.  89 Ill. Adm. Code §300 app. B at 8 (20002). 

Given the statute's mandatory language, we find in this case that

the Board was divested of the exercise of discretion and the determination of policy based on the failure to report.  See Mueller v. Community Consolidated School District 54, 287 Ill. App. 3d 337, 346 (1997)(section 2--201 did not grant school board

immunity for failure to conduct required criminal background

check); Munizza v. City of Chicago, 222 Ill. App. 3d 50, 55 (1991)(immunity did not attach because local ordinance negated

discretion).  

	Relying on Doe I v. Board of Education of Consolidated School District 230 Cook County, Illinois, 18 F. Supp. 2d 954 (N.D. Ill. 1998), the Board asserts that the reporter must determine first

what constitutes "reasonable cause to believe" and second, whether

such abuse likely occurred; reaching such a conclusion clearly

entails the exercise of some degree of judgment and discretion.  In

Doe I, high school students sued a school district and school personnel, alleging that a teacher's sexual relationship with them

resulted in numerous statutory violations, including the failure to

report the alleged conduct.  The school personnel were aware of the

"rumors" of the alleged sexual relationships, but the plaintiffs

unequivocally denied them when the school conducted a preliminary investigation.  The court held that the statutory duty to report

sexual abuse under the Reporting Act required some degree of

judgment and discretion, and iyt concluded that section 2--201 of

the Tort Immunity Act applied to the plaintiffs' claim based on the

failure to report.  Doe I, 18 F. Supp. 2d at 961. 

	We disagree with the notion that school personnel are vested with the discretion to determine what constitutes "reasonable cause

to believe" or whether such abuse actually occurred.  The term

"reasonable cause to believe" as used in the Reporting Act is

equivalent to the term "suspect" as used in the Code of Federal Regulations (45 C.F.R. §1340.3-3(d)(2) (1977)).  1977 Ill. Att'y

Gen. Op. 173.  The Reporting Act requires that a credible report of

suspected child abuse must be turned over to DCFS.  DCFS is

assigned the authority, or the discretion, to substantiate the

accuracy of all reports of known or suspected child abuse or

neglect.  325 ILCS 5/7.3 (West 2000).  Thus, once school personnel

suspect or should suspect that a child may be sexually abused, they

are divested of any discretion to determine what constitutes

"reasonable cause to believe" or whether such abuse actually

occurred.  If school personnel were allowed to determine whether

reasonable cause existed or whether such abuse actually occurred

before reporting the matter to DCFS, the goal of protecting

children from sexual abuse would be undermined.  Although the school board may initially investigate the credibility of any rumors of sexual abuse, whether there was reasonable cause to

report the allegations is an objective determination.  For purposes of the Reporting Act, the issue of whether school personnel have reasonable cause to report suspected allegations of abuse is determined by the objective belief of a reasonable person, not the

school personnel's subjective belief.

	In Doe I, when the rumors of sexual abuse were denied by the plaintiffs themselves, there was no reason to suspect sexual

misconduct.  Here, however, by virtue of the agents' first-hand

knowledge when they were notified by the female student and her

mother, the Board had constructive notice of the alleged sexual

misconduct.  Thus, once the female student and her mother told

Gliwa-Bell and Wyrostek that Dimovski sexually exploited the student, neither Gliwa-Bell nor Wyrostek had any choice but to

report the suspected abuse to DCFS.  Also, the Board does not allege any facts that would have rendered the allegations incredible at the time they were made.  Moreover, the Board could not exercise a judgment call as to any solution, as any policy

choice would have been removed by the Reporting Act.  Accordingly,

section 2--201 does not immunize the Board from liability for the

failure to report.

	Section 3--108(b) of the Tort Immunity Act excepts a public

entity from liability for injuries "caused by a failure to

supervise an activity on or the use of any public property."  745

ILCS 10/3--108(a) (West 2000).  Supervision has been defined to

include not only passive oversight of an activity but also

"direction, teaching, demonstration of techniques and-to some

degree-active participation in an activity while supervising it." (Emphasis omitted.) Longfellow v. Corey, 286 Ill. App. 3d 366, 370 (1997).  Such cases typically concern situations involving adult

leaders overseeing after-school programs, lifeguards supervising

swimming pools, and teachers supervising physical education

classes.  Capps v. Belleville School District No. 201, 313 Ill. App. 3d 710, 716 (2000). 

	The Board asserts that plaintiff's allegations involve aspects

of supervising the monitoring of Dimovski's conduct with his

students.  Here, the gravamen of plaintiff's complaint is based on the failure to report.  Quite simply, the claim of the failure to report does not involve supervision.  We conclude that section 3-- 108 of the Tort Immunity Act does not apply to plaintiff's

allegations. 

	We acknowledge that, to some extent, every action taken by a

local public entity could "boil down to" some aspect of discretion

or supervision.  Moreover, some of plaintiff's claims, if analyzed separately, might immunize the Board from liability.  However, our decision that the Board is not immunized under sections 2--201 and 3--108 is limited to the claim of the failure to report.  Although her claim is limited to the failure to report, we note that it does not limit the amount of damages which plaintiff may claim.

	The Board argues alternatively that the pleadings are

factually deficient as a matter of law.  Plaintiff contends that

this argument was raised in the Board's section 2--615 motion to dismiss which was denied by the trial court and, therefore, the

Board has waived this issue by failing to file a cross-appeal.

	Ordinarily, when an appellee does not file a cross-appeal from

a specific finding unfavorable to the appellee, the reviewing court

will be confined to the issues presented by the appellant and will

not consider the issues presented by the appellee; the appellee has

waived the issue for not having effectively preserved it for

review.  Herron v. Anderson, 254 Ill. App. 3d 365, 371 (1993).  We are mindful, however, that the Board's claim is an alternate

argument, directed against a possible reversal of the judgment by

this court, which is exactly what we have done.  "We do not see

that any purpose would be served in requiring an appellee to file

a cross-appeal in order to preserve conditional arguments against

action which may be ordered by this court."  Simmons v. Union Electric Co., 121 Ill. App. 3d 743, 761 (1984).  We therefore will consider the Board's argument. 

	In analyzing allegations in the face of a section 2--615 motion, the court must accept as true all well-pleaded facts and

all reasonable inferences to be drawn therefrom.  Classic Hotels, Ltd. v. Lewis, 259 Ill. App. 3d 55, 60 (1994).  

	The Board first contends that count V of plaintiff's complaint

fails to set forth sufficient facts to establish a negligent

retention claim.  Because we limit our holding to the claim of failure to report, we need not address this issue.  We note,

however, that plaintiff's complaint does set forth sufficient facts to establish negligence.  Here, plaintiff's claim for negligence is based on: the prior inappropriate sexual conduct of Dimovski, which

was known or should have been known by the Board, through its

agents, Gliwa-Bell and Wyrostek, and the Board's subsequent failure

to report the inappropriate conduct, making it reasonably foreseeable that such conduct would recur.  We find that count V of

the complaint sets forth sufficient facts to establish a claim for

negligence.

	The Board next contends that the acts or omissions of Gliwa- Bell and Wyrostek were not a proximate cause of plaintiff's

injuries.  The Board asserts that it is "pure speculation and

conjecture to say that the way [Gliwa-Bell and Wyrostek] handled

the prior incident makes them[it] liable for [Dimovski's] sexual

relations with plaintiff."  

	Initially, we note that the Board appears to argue that the

injury was not foreseeable.  Here, plaintiff has alleged sufficient facts to show that plaintiff's injury was reasonably foreseeable. 

The Board's alleged knowledge of the alleged prior instances of sexual abuse by Dimovski with another female high school student

made his similar behavior with plaintiff reasonably foreseeable. 

The danger to female students in general was reasonably foreseeable

given Dimovski's history of alleged sexual misconduct.  Put another

way, absent the Board's alleged nonfeasance, the injury sustained

by plaintiff likely would not have occurred.  Regardless, whether the Board should have reasonably anticipated these events presents

a question of fact for the jury to determine that cannot be decided

as a matter of law at the pleadings stage of the litigation.

	The Board does not challenge the sufficiency of the allegations set forth in count VI, and we will not consider it in

this appeal.  However, the Board next argues that plaintiff has not

set forth sufficient facts in count VII to support a claim of

willful and wanton misconduct.  To sufficiently plead willful and

wanton misconduct, a plaintiff must allege either a deliberate

intention to harm or an utter indifference to or conscious

disregard for the welfare of the plaintiff.  Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429, 448 (1992).

	In this case, count VII is premised upon willful and wanton

misconduct stemming from the same set of operative facts underlying

plaintiff's allegations of negligence set forth in count V. 

Plaintiff alleges that the Board's failure to report, by and

through its agents, showed an utter indifference to or conscious

disregard for the safety of other students with whom Dimovski would

come in contact because the Board knew or should have known that its failure would likely and probably result in future injury.  We

agree with plaintiff that, under the circumstances, the failure to

do anything upon learning of the sexual transgressions of a teacher

with a student amounts to a conscious disregard for the safety of

other female students with whom that teacher had daily contact. 

Here, taking as true all well-pleaded allegations and the

reasonable inferences to be drawn therefrom, it is clear that

plaintiff's complaint sets forth sufficient willful and wanton

allegations.

	Finally, for the first time on appeal, the Board argues that

they it isare entitled to immunity under section 24--24 of the School Code

(105 ILCS 5/24--24 (West 2000)).  We find the Board has waived this

issue for failing to raise it in  its sectiontheir 2-–-619 motion to

dismiss.  See Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486, 500 (1985).

	Based on the foregoing, the decision of the circuit court of

Du Page County in dismissing plaintiffs' complaint pursuant to

section 2--619 of the Code is reversed, and the cause is remanded

for further proceedings consistent with this opinion. 

	Reversed and remanded.

	GROMETER and KAPALA, JJ., concur.