Mitchell v. Special Education Joint Agreement School District No. 208 ( 2008 )


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  •                                                                                 THIRD DIVISION
    October 22, 2008
    No. 1-08-0786
    DANIEL MITCHELL, a Minor, by his Legal Guardian,             )       Appeal from
    Shirley Lambert,                                             )       the Circuit Court
    )       of Cook County.
    Plaintiff-Appellant,                         )
    )
    v.                                                    )        No. 06 L 5486
    )
    SPECIAL EDUCATION JOINT AGREEMENT                            )
    SCHOOL DISTRICT NO. 208,                                     )        Honorable
    )        John A. Ward,
    Defendant-Appellee.                          )        Judge Presiding.
    JUSTICE THEIS delivered the opinion of the court:
    Plaintiff, Daniel Mitchell, a minor, by his legal guardian, Shirley Lambert, appeals from
    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). The
    circuit court found that Daniel failed to raise a genuine issue of material fact regarding whether
    school employees acted willfully and wantonly in failing to supervise him. Daniel challenges
    that conclusion on appeal. We affirm.
    Daniel suffers from Downs Syndrome, is profoundly mentally delayed, is not able to
    speak, and is severely hearing impaired. He also requires assistance with all of his daily
    functions, including with meals. Daniel was a special education student at the defendant school,
    1-08-0786
    which is a public school serving students with special needs from 15 Chicago area school
    districts.
    Through Lambert, Daniel commenced the present action against 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 judgment contending that Daniel
    could not establish, as a matter of law, that school employees had acted willfully and wantonly in
    failing to supervise him. The school attached the following depositions and other items to its
    motion for summary judgment.
    In her deposition, Lambert testified that Daniel requires one-on-one supervision while he
    is eating. Otherwise, she explained, he will eat too quickly and put too much food into his
    mouth. To prevent this from occurring, Lambert will cut Daniel’s food into small pieces and sit
    with him while he eats to make sure he paces himself. She added that if Daniel is not monitored,
    he will try to take food from others. However, once Daniel has finished eating, he will not try to
    take more food.
    Benoit Runyan, the school principal, testified that students at the school have many
    diverse, specific needs. Accordingly, each student has 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, Runyan explained that the school psychologist prepared a report
    assessing him. Although Daniel was 16 years old at the time in question, the report disclosed
    that Daniel’s social age was 12 months, his academic age was 11 months, and his physical age
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    was 34 months. Like a toddler, Daniel could maneuver around his environment, pick up items,
    and sense hot and cold. Thus, Daniel could not be expected to care for his own safety. Although
    Daniel was not able to communicate verbally, he was able to communicate via hand gestures. He
    specifically understood a hand gesture for “stop.”
    The school and school staff were also aware of Daniel’s specific needs related to food.
    They understood that Daniel’s food had to be cut into small pieces and given to him gradually in
    small portions. Due to Daniel’s “attraction to food,” school staff also understood that a large
    amount of food could not be set out in Daniel’s presence. Runyon added that Daniel had even
    tried to take food from the garbage can on his way out of the school cafeteria. Daniel had also sat
    down on the cafeteria floor and refused to leave. On another occasion, Daniel was given a plate
    of Chinese food and a slice of bread. Daniel began stuffing “forkfulls” of food into his mouth
    rapidly. Daniel’s teacher had to intervene and grab 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 second,” Daniel grabbed the bread and stuffed the entire piece into his mouth. As a
    result of Daniel’s “food issues,” Daniel’s teacher or paraprofessional aide would cut his food and
    monitor his eating to ensure that he paced himself and did not take food from others. However,
    Runyon made clear that Daniel had never choked on food before 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 each of his students. He was
    also given other information on their specific needs. Peterson specifically remembered Daniel
    and testified that he had been made aware of Daniel’s tendency to gorge food if he were left
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    unattended. He was also aware of the protective measures, such as cutting Daniel’s food, that
    needed to be taken for Daniel at mealtimes. Peterson explained that if Daniel’s food were cut
    into small pieces, Daniel could be left alone to pace himself while eating. Staff would also hold
    Daniel’s hand and walk him to the cafeteria so that he would not run away and take food from
    others. Peterson added that this was necessary because Daniel was strong and quick.
    Peterson recalled one specific incident when another teacher with a plate of hot dogs
    unknowingly walked by as Peterson was walking Daniel to the cafeteria. Daniel immediately
    seized the hot dogs and stuffed them into his mouth. However, Daniel did not choke. Instead, he
    “just swallowed [the hot dogs] right down *** without blinking,” which “amazed” Peterson.
    Peterson added that they were required to keep Daniel in the least restrictive environment
    at school. Therefore, they could not isolate him during mealtime, nor could they physically
    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 became familiar with Daniel’s
    individualized education plan and spoke with Daniel’s paraprofessional aide from the previous
    school year. She added that Daniel was severely mentally impaired and required assistance with
    “everything.”
    At mealtime, Ross was charged with the task of cutting Daniel’s food into small pieces.
    She would also sit with him one-on-one while he ate to ensure that he would pace himself and
    not take food from others. If Daniel ate too quickly or tried to sneak food away from other
    students, Ross would hold Daniel’s hand to stop the behavior. Ross recalled two specific
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    occasions when Daniel tried to slide snacks away from a student seated nearby.
    Ross and Peterson testified that on May 31, 2005, one of the students in Daniel’s class
    was celebrating a birthday. Hostess “Suzy Q” cupcakes were provided to each student in the
    class as a treat along with their breakfast. Ross explained that this was generally what would
    occur when any student was celebrating a birthday. There had been at least one prior birthday in
    Daniel’s class that year, and Daniel had handled the situation well.
    On this occasion, Ross cut Daniel’s cupcake into small, bite-sized pieces and sat next to
    him while he ate. There were seven to nine students in Daniel’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 created a “small mess” by spooning up the milk, so Ross stepped
    backwards several feet to a sink to retrieve a paper towel to clean up the mess. Ross stepped
    backward because she knew that 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 finished eating their cupcakes. Peterson also explained that because Daniel had his
    own cereal in front of him, there was no motivation for him to leave his seat. Accordingly,
    Peterson remained behind his desk and began marking his attendance sheet.
    Nevertheless, when Ross stepped back to the sink and began to wet a paper towel, Daniel
    got up out of his seat, ran around the table, grabbed at least one other cupcake that had 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 reached him at the same time, but
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    Daniel already had the cupcake in his mouth. These events unfolded in a matter of seconds.
    They tried to get Daniel to spit the cupcake out, but were unsuccessful. Daniel began to gag and
    choke. Peterson attempted to perform the Heimlich maneuver, then called the school nurses.
    The nurses arrived shortly thereafter, but were unable to do anything for Daniel. They called an
    ambulance and Daniel was taken to the hospital.
    Lambert testified that Daniel remained 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 contending that
    because the school was aware of his issues with food, it was a conscious disregard 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 granted the school’s motion. The court specifically found
    that the “warm and nurturing” care 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 granting the school’s motion for
    summary judgment because the depositions and other items presented, when viewed in the light
    most favorable to him, raised a genuine issue of material 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.
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    “Summary judgment is appropriate where the pleadings, depositions, admissions and
    affidavits on file, viewed in the light most favorable to the nonmoving party, reveal that there is
    no genuine issue as to any material fact and that the moving party is entitled to judgment as a
    matter of law.” 735 ILCS 5/2-1005(c) (West 2006); Kajima Construction Services, Inc. v. St.
    Paul Fire & Marine Insurance Co., 
    227 Ill. 2d 102
    , 106, 
    879 N.E.2d 305
    , 308 (2007). Indeed, if
    the movant supplies facts which, if not contradicted, would warrant judgment in its favor as a
    matter of law, the nonmoving party cannot rest on its pleadings to create a genuine issue of
    material fact. Abrams v. City of Chicago, 
    211 Ill. 2d 251
    , 257, 
    811 N.E.2d 670
    , 674 (2004).
    Nevertheless, summary judgment should not be allowed unless the movant’s right to judgment is
    clear and free from doubt. Murray v. Chicago Youth Center, 
    224 Ill. 2d 213
    , 246, 
    864 N.E.2d 176
    , 195 (2007). We review a circuit court’s order granting summary judgment de novo. Kajima
    Construction Services, 
    Inc., 227 Ill. 2d at 106
    , 879 N.E.2d at 308.
    In order to protect public funds from being dissipated by damage awards in tort cases, the
    Local Government and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/1-
    101 et seq. (West 2006)) was enacted to shield local public entities and public employees from
    liability for ordinary negligence committed during the exercise of their duties. See generally
    
    Murray, 224 Ill. 2d at 229-30
    , 864 N.E.2d at 185-86. Specifically, section 3-108(a) provides 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 public entity or public employee is guilty of willful and wanton conduct in its
    supervision proximately causing such injury.” 745 ILCS 10/3-108(a) (West 2006). The Act
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    further defines “willful and wanton conduct” as “a course of action which shows an actual or
    deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or
    conscious disregard for the safety of others or their property.” 745 ILCS 10/1-210 (West 2006).
    Generally, whether conduct was willful and wanton is a question of fact for a jury to
    decide. 
    Murray, 224 Ill. 2d at 245
    , 864 N.E.2d at 194. However, where the record shows
    absolutely no evidence that the defendant displayed either an utter indifference to or a conscious
    disregard for the plaintiff’s safety, then the court may properly decide the issue as a matter of
    law. See, e.g., Stiff v. Eastern Illinois Area of Special 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 defendant
    school after the plaintiff presented no evidence that school staff consciously disregarded her
    safety, and 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-year-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 park
    when the group came to a bridge which had a fallen tree lying across the hand rails. Stiff, 279 Ill.
    App. 3d at 
    1079, 666 N.E.2d at 344
    . The plaintiff’s adaptive physical education teacher directed
    the plaintiff to proceed under the tree while another teacher and a teacher’s aide monitored the
    plaintiff from a few inches away; however, as she attempted to circumvent the tree, the plaintiff’s
    leg buckled and she fell off the bridge, 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 inches away
    from her while monitoring her progress, the school staff’s actions could not be said to have been
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    an “utter disregard” for the plaintiff’s safety. 
    Stiff, 279 Ill. App. 3d at 1082
    , 666 N.E.2d at 346.
    Here, Daniel does not claim that the school intended to harm him but, rather, that it
    consciously disregarded his safety during the May 31, 2005, breakfast birthday party. 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 that the other students had
    finished their cupcakes and that Daniel would not be motivated to take food from others when he
    had his own cereal to finish. Nevertheless, being aware of Daniel’s issues, Ross continued to
    monitor Daniel when she stepped back a few feet to the sink without turning her back on him.
    These actions by school staff showed a concern for Daniel’s safety. Further, as soon as Daniel
    left his seat, both Peterson and Ross acted to intercede and attempted to stop Daniel; however,
    Daniel did not obey. Once again, we cannot say that the school staff’s actions showed an “utter
    disregard” for Daniel’s safety, and Daniel came forward with no evidence to the contrary.
    In reaching this conclusion, we find the cases relied upon by Daniel, Jackson v. Chicago
    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 distinguishable from the present case. In both of those cases, school staff did absolutely
    nothing to protect the students in question, in that they left them completely unattended and
    ignored a credible threat of violence by another student. 
    Jackson, 192 Ill. App. 3d at 1095-96
    ,
    549 N.E.2d at 830; 
    Gammon, 82 Ill. App. 3d at 587-88
    , 403 N.E.2d at 44-45.
    For these reasons, we affirm the circuit court’s order granting the school’s motion for
    summary judgment.
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    Affirmed.
    GREIMAN and QUINN, JJ., concur.
    10
    REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
    _________________________________________________________________
    DANIEL MITCHELL, a Minor by his Legal
    Guardian, Shirley Lambert,
    Plaintiff-Appellant,
    v.
    SPECIAL EDUCATION JOINT AGREEMENT
    SCHOOL DISTRICT NO. 208,
    Defendant-Appellee.
    ________________________________________________________________
    No. 1-08-0786
    Appellate Court of Illinois
    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 Presiding
    _________________________________________________________________
    For PLAINTIFF-           John A. Stefani
    APPELLANT,               Joseph, Lichtenstein & Levinson
    221 N. LaSalle St., Suite 2119
    Chicago, IL 60601
    For DEFENDANT-           William F. Gleason
    APPELLEE,                Hauser, Izzo, DeTella & Petrarca, LLC
    19730 Governors Highway, Suite 10
    Flossmoor, IL 60422