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FIFTH DIVISION
June 13, 2003

JUSTICE QUINN delivered the opinion of the court:

Plaintiff John Doe, a minor, by his legal guardian D. JeanOrtega-Piron, filed a third amended complaint in the circuitcourt of Cook County against defendants Chicago Board ofEducation (Board) and Laidlaw Transit, Inc., after he wasallegedly sexually assaulted while a passenger on a school busoperated by Laidlaw. Counts II and III of the complaint allegednegligence and willful and wanton misconduct, respectively,against the Board, which moved for dismissal of the countspursuant to sections 2-615 and 2-619(a)(9) of the Illinois Codeof Civil Procedure (Civil Code) (735 ILCS 5/2-615, 2-619(a)(9)(West 2000)). The trial court granted the Board's motion andfound that there was no just reason to delay enforcement orappeal of its order under Supreme Court Rule 304(a) (155 Ill. 2dR. 304(a)). On appeal, plaintiff contends that the trial courterred in summarily dismissing the two counts because they wereproperly pleaded and the Board is not immune from liability undersection 4-102 of the Local Governmental and GovernmentalEmployees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4-102 (West 2000)). For the reasons set forth below, we affirm thedismissal of the count alleging negligence, reverse the dismissalof the count alleging willful and wanton misconduct and remandthis cause for further proceedings.

BACKGROUND

In his third amended complaint, plaintiff alleged that on orabout October 2, 1999, he was a 12-year-old special educationstudent at Montefiore school in Chicago suffering from mentalillness and developmental and cognitive disabilities. At allrelevant times, the Board had retained Laidlaw to provide schoolbus transportation to students attending Montefiore school, whichwas a "special education school for socially maladjusted boys." It was alleged that every day children were transported toMontefiore school, a driver for Laidlaw operated the bus and anattendant also rode the bus. Plaintiff alleged that the Boardknew he had certain mental incapabilities and, as a result, hadto be guarded, supervised and protected while in the Board'scustody and control.

Plaintiff alleged that on October 2, 1999, he was riding ona school bus operated by a Laidlaw employee, when he was sexuallyassaulted by a male student who had a deviant sexual history and,as a result of having been declared a sexually aggressive childand youth (SACY) ward, was under a "Protective Plan." Plaintiffalleged in his complaint that the Board knew or should have knownthat the protective plan required that the SACY ward never beleft unsupervised among other children. At all relevant times,the Board employed a bus attendant to supervise the children onthe trip to and from Montefiore school. On the day of the sexualassault, the Board knew or should have known that the school busattendant, whose job was to supervise the children, called insick. Plaintiff alleged that despite having a duty to do so, theBoard did not have an attendant on the bus at the time he wasassaulted, which occurred in the afternoon, on the ride home.

In count I of his third amended complaint, which is notcurrently before this court, plaintiff alleged negligence againstLaidlaw. In count II, plaintiff alleged negligence against theBoard because it: (1) failed to ensure that a school busattendant was present on the bus while he was a passenger; (2)failed to transport him with reasonable safety; (3) failed tomaintain discipline on the bus transporting him; (4) failed toprevent the perpetrator from sexually assaulting him; (5) failedto respond to his requests for assistance in protecting himselfagainst the sexual assault; (6) failed to provide adequatesupervision on the bus while knowing its passengers weredevelopmentally disadvantaged; (7) failed to provide adequatesupervision on the bus while knowing that one of the passengerswas sexually deviant; (8) failed to put adequate protections orprecautions in place to protect passengers from harming eachother; (9) failed to ensure that the contractor chosen totransport him had adequate safety equipment, such as seatbelts,on the bus; (10) failed to employ and enforce safety measures,such as requiring passengers to sit in place; and (11) wasotherwise negligent in providing safe transportation to him.

In count III, plaintiff alleged that the Board was guilty ofwillful and wanton misconduct where, with knowledge of the factthat male passengers on the bus were likely to attempt to commitsexual assaults on other passengers, the Board: (1) failed totransport plaintiff with reasonable safety; (2) failed tomaintain order on the vehicle chosen to transport plaintiff; (3)failed to prevent plaintiff's fellow passenger from assaultinghim; (4) failed to provide adequate supervision on the bus; (5)failed to ensure that the contractor chosen to transportplaintiff had adequate safety equipment, such as seat belts, onits vehicles; (6) failed to employ and enforce safety measures,such as requiring passengers to sit in place; (7) failed to havea bus attendant on duty the day plaintiff was assaulted; and (8)failed to act to prevent plaintiff from being sexually assaulted. Plaintiff also alleged willful and wanton misconduct on the partof the Board based upon its deliberately allowing the bus to runwithout supervision despite knowing the attendant had called insick and the bus driver was a substitute. Finally, plaintiffalleged in count III that the Board failed to respond toplaintiff's requests for assistance in protecting himself againstthe sexual assault.

The Board moved for summary dismissal of counts II and IIIpursuant to sections 2-615 and 2-619(a)(9) of the Civil Code. Regarding section 2-615, the Board argued that plaintiff hadfailed to allege facts sufficient to establish willful and wantonmisconduct. As for the other affirmative matter under section 2-619(a)(9), the Board, in reliance upon A.R. v. Chicago Board ofEducation, 311 Ill. App. 3d 29 (1999), argued that section 4-102of the Tort Immunity Act, which allows immunity for the failureof a public entity to provide police protection, barred theclaims of negligence and willful and wanton misconduct againstit.

In response, plaintiff argued that section 4-102 wasinapplicable to the facts of this case. Plaintiff also arguedthat the Board was required to maintain discipline pursuant tosections 24-24 and 34-84a of the School Code (105 ILCS 5/24-24,34-84a (West 2000)). Additionally, plaintiff asserted thatrecent amendments to section 3-108 of the Tort Immunity Act (745ILCS 10/3-108 (West 2000)) narrowed the scope of immunity forpublic entities to exclude liability for injuries for willful andwanton misconduct resulting from the supervision of an activityon public property. The trial court granted the Board's motionto dismiss counts II and III of the third amended complaint andplaintiff now appeals that ruling.

ANALYSIS

Plaintiff contends that the trial court erred in grantingthe Board's motion for summary dismissal. He argues that thiscase is controlled by sections 24-24 and 34-84a of the SchoolCode, which state that employees in the public school system havea duty to supervise students in order to maintain discipline, and that section 4-102 of the Tort Immunity Act is inapplicable. Plaintiff further asserts that the 1998 amendment to section 3-108 of the Tort Immunity Act, excluding immunity for publicentities and public employees for willful and wanton misconduct,mandates reversal of the trial court's dismissal of hiscomplaint.

A motion to dismiss brought under section 2-615 attacks thelegal sufficiency of a complaint and alleges only defects on theface of the complaint. Bryson v. News America Publications,Inc., 174 Ill. 2d 77, 86 (1996). The question to be decided whenruling on a section 2-615 motion to dismiss is whether theplaintiff has alleged sufficient facts which, if proved, wouldentitle the plaintiff to relief. Urbaitis v. CommonwealthEdison, 143 Ill. 2d 458, 475 (1991).

Section 2-619(a)(9) of the Civil Code allows for involuntarydismissal where "the claim asserted against defendant is barredby other affirmative matter avoiding the legal effect of ordefeating the claim." 735 ILCS 5/2-619(a)(9) (West 2000). An"affirmative matter" in a section 2-619 motion to dismiss is onethat negates the plaintiff's cause of action. Illinois GraphicsCo. v. Nickum, 159 Ill. 2d 469, 486 (1994). Immunity under theTort Immunity Act is an affirmative matter that can properly beraised in a section 2-619(a)(9) motion to dismiss. Bubb v.Springfield School District 186, 167 Ill. 2d 372, 378 (1995).

When ruling on a motion to dismiss pursuant to both sections2-615 and 2-619, the court must accept all well-pleaded facts inthe petition as true and draw all reasonable inferences in favorof the plaintiff. See Storm & Associates, Ltd. v. Cuculich, 298Ill. App. 3d 1040, 1047 (1998). The resolution of either motioninvolves a question of law; thus, our review is de novo. Storm &Associates, 298 Ill. App. 3d at 1047.School Code

Plaintiff argues that his claims are governed by sections24-24 and 34-84a of the School Code, which relate to maintenanceof discipline. He asserts that because school bus transportationto and from school is an activity within the school program,section 34-84a imposes liability upon the Board.

Section 34-84a of the School Code, which corresponds tosection 24-24 but applies only to cities having populations over500,000, provides:

"Subject to the limitations of all policies establishedor adopted under Section 14-8.05, teachers, othercertificated educational employees, and any otherperson, whether or not a certificated employee,providing a related service for or with respect to astudent shall maintain discipline in the schools,including school grounds which are owned or leased bythe board and used for school purposes and activities. In all matters relating to the discipline in andconduct of the schools and the school children, theystand in the relation of parents and guardians to thepupils. This relationship shall extend to allactivities connected with the school program, includingall athletic and extracurricular programs, and may beexercised at any time for the safety and supervision ofthe pupils in the absence of their parents orguardians." 105 ILCS 5/34-84a (West 2000).

Finding support in Jastram v. Lake Villa School District 41,192 Ill. App. 3d 599 (1989), Edmonson v. Chicago Board ofEducation, 62 Ill. App. 3d 211, 213 (1978), and Jackson v.Chicago Board of Education, 192 Ill. App. 3d 1093, 1099 (1989),the Board argues sections 24-24 and 34-84a are inapplicablebecause those provisions only apply to teachers or othercertificated educational employees. This argument is withoutmerit because although a previous version of these sectionsapplied only to "teachers and other certificated educationalemployees" (105 ILCS 5/34-84a (West 1994)), the version relevantto this appeal also includes "any other person" (105 ILCS5/34-84a (West 2000)).

Although sections 24-24 and 34-84a of the School Codeimmunize teachers and certain other educational employees fromtheir negligence in the supervision of school activities, thesesections do not provide immunity for willful and wantonmisconduct relating to such supervision. Kobylanski v. ChicagoBoard of Education, 63 Ill. 2d 165, 173 (1976). However, whilesections 24-24 and 34-84a do not confer immunity for willful andwanton misconduct, they were not intended to create liability forsuch alleged conduct. Grandalski v. Lyons Township High SchoolDistrict 204, 305 Ill. App. 3d 1, 7 (1999). Rather, the SchoolCode "grants educators the immunity that parents enjoy." Henrichv. Libertyville High School, 186 Ill. 2d 381, 388 (1998). Consequently, we reject plaintiff's argument that sections 24-24and 34-84a provide a basis to impose liability upon the Board. Rather, because section 34-84a of the School Code precludesholding the Board liable for the negligent conduct alleged incount II, we affirm the dismissal of count II of plaintiff'scomplaint.

Tort Immunity Act

Plaintiff next argues that dismissal of counts II and III ofhis complaint under section 4-102 of the Tort Immunity Act waserroneous. Section 4-102 of the Tort Immunity Act provides inpertinent part:

"Neither a local public entity nor a public employee isliable for failure to establish a police department orotherwise provide police protection service or, ifpolice protection is provided, for failure to provideadequate police protection or service, failure toprevent the commission of crimes, failure to detect orsolve crimes, and failure to identify or apprehendcriminals." 745 ILCS 10/4-102 (West 2000).

The Board asserts that section 4-102 of the Tort ImmunityAct bars plaintiff from any recovery. It argues that becauseplaintiff is seeking recovery based upon its failure to prevent asexual assault against him, the negligence and willful and wantonmisconduct counts were properly dismissed. According to theBoard, the instant case is controlled by this court's decision inA.R. v. Chicago Board of Education, 311 Ill. App. 3d 29 (1999).

In A.R. a developmentally disabled female suffering fromDown's Syndrome was sexually assaulted while riding on a bus,which was provided by Laidlaw pursuant to a contract with theBoard. At the time of the alleged assault, an attendant employedby the Board was on the bus but failed to prevent the assault. Following the assault, the plaintiffs filed suit against, interalia, the Board seeking damages for negligence. The plaintiffsalso sought damages from the Board for willful and wantonmisconduct "by failing to prevent or intervene in the assault ofA.R. when the Board had knowledge that male passengers on the buswere likely to commit sexual assaults on female passengers." A.R., 311 Ill. App. 3d at 32. The Board moved to dismiss undersection 4-102 of the Tort Immunity Act. On appeal, this courtruled that under the plain language of section 4-102, the Boardwas immune from liability for its alleged plain negligence. A.R., 311 Ill. App. 3d at 34. Relating to the willful and wantonmisconduct count, this court ruled that the plaintiffs had failedto allege specific facts in support of the claim. A.R., 311 Ill.App. 3d at 34.

The court in A.R. also analyzed the willful and wanton countunder section 34-84(a) of the School Code, finding that while thesection imposed a duty on the Board, through its agent, theattendant on duty the day of the assault, to maintain disciplineamong the students, the duty did not defeat immunity under theTort Immunity Act. A.R., 311 Ill. App. 3d at 36. Finally, thiscourt rejected the plaintiffs' claim that an amendment to section3-108 of the Tort Immunity Act, effective after the assault inA.R., which limited immunity to only acts of negligence, deniedthe Board immunity for its willful and wanton misconduct. A.R.,311 Ill. App. 3d at 36-37.

The Board argues that A.R. is directly on point and that theallegations in plaintiff's complaint "fall squarely" within theimmunity provided in section 4-102. Plaintiff rejects thisargument, asserting that the facts in A.R. are distinguishablefrom his case and that his claims are based upon more than afailure by the Board to prevent commission of a crime. We agreewith plaintiff.

This court's decision in A.R. was based upon the fact that"the [trial] court characterized [the] plaintiffs' allegations ofnegligence and willful and wanton misconduct against the Board asclaims predicated upon a failure to prevent one student fromcommitting a crime against another." A.R., 311 Ill. App. 3d at32. However, we find such a characterization of the complainthere too restrictive. While it is true that the allegationsrelating to willful and wanton misconduct on the part of theBoard include allegations that the Board failed to preventplaintiff from being sexually assaulted, the allegations alsoimplicate willful and wanton misconduct based upon the Board'sdeliberately allowing the school bus to operate without a busattendant providing supervision despite knowing that the allegedperpetrator was not to be left unsupervised while with otherchildren. To interpret plaintiff's complaint as merely beingpremised upon the failure of the Board to prevent the commissionof a crime would be in direct contravention of the Civil Code,which provides that "[p]leadings shall be liberally construedwith a view to doing substantial justice between the parties." 735 ILCS 5/2-603 (West 2000). Based upon the allegations inplaintiff's complaint, we find that section 4-102 of the TortImmunity Act does not immunize the Board from liability.

As we characterize the allegations in the instant complaintas asserting a lack of supervision, section 3-108 of the TortImmunity Act applies. Section 3-108 of the Tort Immunity Actprovides:

"(a) Except as otherwise provided by this Act,neither a local public entity nor a public employee whoundertakes to supervise an activity on or the use ofany public property is liable for an injury unless thelocal public entity or public employee is guilty ofwillful and wanton conduct in its supervisionproximately causing such injury.

(b) Except as otherwise provided in this Act,neither a local public entity nor a public employee isliable for an injury caused by a failure to supervisean activity on or the use of any public property unlessthe employee or the local public entity has a duty toprovide supervision imposed by common law, statute,ordinance, code or regulation and the local publicentity or public employee is guilty of willful andwanton conduct in its failure to provide supervisionproximately causing such injury." 745 ILCS 10/3-108(West 2000).

To bring his complaint within the ambit of section 3-108'sexclusion of willful and wanton misconduct, plaintiff's complaintmust properly allege such conduct on the part the Board.

Willful and Wanton Misconduct

The Board claims that count III of plaintiff's complaintshould be dismissed under section 2-615 because he failed toproperly allege willful and wanton misconduct, as was the case inA.R. Specifically, it argues that plaintiff failed to allegethat the Board had knowledge of the special needs of the childrenon the bus, of the perpetrator's sexually aggressive behavior andof the need to have a bus attendant. The Board also asserts thatplaintiff's allegation that it was aware that male passengers onthe bus were likely to attempt to commit sexual assaults on otherpassengers is conclusory.

To properly plead willful and wanton misconduct, a plaintiffmust allege either a deliberate intention to harm or an utterindifference to or conscious disregard for the welfare of theplaintiff. Burke v. 12 Rothchild's Liquor Mart, Inc., 148 Ill.2d 429, 448 (1992). As for the sufficiency of the allegations inthe complaint, when ruling on a motion to dismiss, we accept astrue all well-pleaded facts in the complaint and all inferenceswhich can reasonably be drawn in favor of the plaintiff fromthose facts. Geise v. Phoenix Co. of Chicago, 159 Ill. 2d 507,510 (1994). In his third amended complaint, plaintiff allegedthat he was a special education student at Montefiore School,which was a "special education school for socially maladjustedboys." He further alleged that the perpetrator had been declareda sexually aggressive child and was under a protective plan,which required that the child never be left unsupervised whilewith other children. Since plaintiff alleged that Montefiore wasa "special education school," clearly, the Board should haveknown that students on the bus, who attended that school, hadspecial needs.

In Doe v. Dimovski, 336 Ill. App. 3d 292 (2003), Dimovskiwas a teacher who sexually abused the plaintiff, who was one ofhis students. The trial court granted the school board's section2-619(a)(6) motion to dismiss, finding that the board wasimmunized under sections 2-201 and 3-108 of the Tort Immunity Act(745 ILCS 10/2-201, 3-108 (West 2000)). Section 2-201 granted immunity based upon the board's exercise of discretion andsection 3-108 granted immunity based upon a failure to supervisean activity. The appellate court reversed on the ground that theboard's failure to notify the Department of Children and FamilyServices of a prior sexual abuse allegation against the sameteacher was not an exercise of discretion because the matter hadto be reported under the Abused and Neglected Child Reporting Act(325 ILCS 5/1 et seq. (West 2000)). Dimovski, 336 Ill. App. 3dat 296-97. The appellate court also rejected the board'sargument that the plaintiff's injury was not reasonablyforeseeable. In doing so, the court stated:

"The [b]oard's alleged knowledge of the alleged priorinstances of sexual abuse by Dimovski with anotherfemale high school student made his similar behaviorwith plaintiff reasonably foreseeable. The danger tofemale students in general was reasonably foreseeablegiven Dimovski's history of alleged sexual misconduct. Put another way, absent the [b]oard's allegednonfeasance, the injury sustained by plaintiff likelywould not have occurred. Regardless, whether the[b]oard should have reasonably anticipated these eventspresents a question of fact for the jury to determinethat cannot be decided as a matter of law at thepleadings stage of the litigation." Dimovski, 336 Ill.App. 3d at 299.

We find the complaint in this case to be similar to thecomplaint in the Dimovski case. Unlike in A.R., where theplaintiffs' complaint "contained no specific facts to support theallegation the Board had knowledge of a propensity by malepassengers to commit sexual assaults" (A.R., 311 Ill. App. 3d at32), here, plaintiff has properly pled knowledge on the part ofthe Board that the attacker was likely to commit a sexual assaulton the passengers and that an attendant was required.

Accordingly, we affirm the judgment of the circuit courtdismissing count II of plaintiff's complaint, reverse thejudgment of the circuit count dismissing count III of plaintiff'scomplaint and remand this cause for further proceedings.

Affirmed in part and reversed in part; cause remanded.

REID and HARTIGAN, JJ., concur.