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Docket No. 96574-Agenda 21-September 2004.

JOHN DOE, a Minor, by his Legal Guardian, D. Jean Ortega-Piron,Guardianship Adm'r of the Illinois Department of Children and FamilyServices, Appellee, v. THE CHICAGO BOARD OF EDUCATION et al. (The Chicago Board of Education, Appellant).

Opinion filed November 18, 2004.

JUSTICE KILBRIDE delivered the opinion of the court:

In this case we must decide whether section 4-102 of the LocalGovernmental and Governmental Employees Tort Immunity Act (Act)(745 ILCS 10/4-102 (West 2000)), extending immunity to a localgovernment entity providing a police protection service, applies in thecase of a school board furnishing an attendant on a bus transportingdisabled students. We hold that it does not.

The guardian of a disabled minor sought damages in tort againstthe Chicago Board of Education (Board) and Laidlaw Transit, Inc., achartered bus company, for injuries the ward sustained as the result ofan assault by a mentally impaired fellow passenger while riding toschool on an unsupervised bus. The trial court allowed the Board'smotion to dismiss pursuant to section 2-619 of the Code of CivilProcedure (Code) (735 ILCS 5/2-619 (West 2000)), finding that theBoard was immune from liability under section 4-102 of the Act. Thetrial court also allowed the Board's motion to dismiss pursuant tosection 2-615 of the Code (735 ILCS 5/2-615 (West 2000)), findingthat the complaint did not plead facts justifying its allegation of willfuland wanton conduct. Plaintiff appealed both findings pursuant toSupreme Court Rule 304(a) (155 Ill. 2d R. 304(a)).

The appellate court reversed, holding that willful and wantonconduct was adequately pleaded and that the Board was not immuneunder section 4-102 of the Act. 339 Ill. App. 3d 848. We granted theBoard's petition for leave to appeal. 177 Ill. 2d R. 315(a). We alsogranted leave to the City of Chicago, the Illinois Municipal League,the Illinois Association of School Boards, and the Illinois Associationof School Administrators to file amicus curiae briefs. 155 Ill. 2d R.345. We now affirm the appellate court.

BACKGROUND

The complaint alleged that plaintiff's ward, a mentally impairedspecial education student at a school for maladjusted boys, wassexually assaulted by another male student passenger on the bus takingthem to school. An attendant was employed by the Board to supervisethe children on the bus ride to and from school. On the day of theassault, the attendant had called in sick and was not present on thebus. Thus, the complaint alleges, the Board knew or should haveknown that no attendant was present.

The assailant had a deviant sexual history, had been declared asexually aggressive child and youth ward (SACY), and was under a"Protective Plan" requiring that he never be left unsupervised amongother children. Hence, the complaint alleges that the Board knew orshould have known that supervision of the children on the bus wasrequired at all times. According to the complaint, the knowing failureto provide an attendant under these circumstances was willful andwanton conduct proximately resulting in injury to plaintiff's ward.

In its section 2-619 motion, the Board claimed immunity fromliability because the conduct described in the complaint is the failureto prevent the commission of a crime and, accordingly, is within thepolice protection services immunity conferred by section 4-102 of theAct. In its section 2-615 motion, the Board also claimed that theallegations in the complaint are conclusory and inadequate to sustainthe charge of willful and wanton conduct. The trial court allowed bothmotions and dismissed the complaint against the Board with prejudice.The court then entered Rule 304(a) findings, and plaintiff appealed.The action against the bus company remains pending in the trial court.

The appellate court reversed, holding section 4-102 of the Actinapplicable. 339 Ill. App. 3d at 856. The court distinguished itsholding in A.R. v. Chicago Board of Education, 311 Ill. App. 3d 29(1999), where section 4-102 immunity was applied to defeat aplaintiff's complaint under similar circumstances. The court noted thatthe Code requires liberal construction of pleadings "with a view todoing substantial justice between the parties." 735 ILCS 5/2-603(West 2000). Although the complaint does contain allegations that theBoard failed to prevent a sexual assault, it also contains allegationsimplicating willful and wanton conduct based on allowing the bus tooperate without supervision, knowing that the perpetrator was not tobe left unsupervised among other children. 339 Ill. App. 3d at 856.

The court then held that section 3-108 of the Act (745 ILCS10/3-108 (West 2000)), extending immunity for failure to supervisean activity on public property, except in cases involving willful andwanton conduct, controlled the situation described in plaintiff'scomplaint. The court, relying on Doe v. Dimovski, 336 Ill. App. 3d292 (2003), found that plaintiff's complaint adequately alleged willfuland wanton conduct, and reversed and remanded the case to the trialcourt. 339 Ill. App. 3d at 858. We granted the Board's petition forleave to appeal. (177 Ill. 2d R. 315(a)).

ANALYSIS

In ruling on motions to dismiss pursuant to either section 2-615or 2-619 of the Code, the trial court must interpret all pleadings in thelight most favorable to the nonmoving party. On appeal, our reviewis de novo. In re Chicago Flood Litigation, 176 Ill. 2d 179, 189(1997).

The Board submits that all of the allegations charging willful andwanton conduct in plaintiff's complaint describe different ways theBoard could have, or should have, prevented a sexual assault. Hence,it argues that section 4-102 of the Act is clearly implicated. Nearlyidentical allegations were made by the plaintiff in A.R. v. ChicagoBoard of Education, 311 Ill. App. 3d 29 (1999). The court in thatcase held that section 4-102 of the Act applied and, the Boardcontends, the same result should follow in this case. Conversely,plaintiff contends that immunity does not apply because the Board wasnot providing police protection services in furnishing a bus attendant.

To resolve the central issue presented by this case, we mustconstrue section 4-102. In cases of statutory construction, ourprimary goal is to determine the intent of the legislature. If we candiscern the legislative intent from the plain language of the statutewithout resorting to other interpretive aids, we will do so, and we willnot depart from the plain language of the statute by reading into itexceptions, limitations, or conditions that conflict with the expresslegislative intent. Barnett v. Zion Park District, 171 Ill. 2d 378, 388-89 (1996).

Section 4-102 of the Act provides in relevant part:

"Neither a local public entity nor a public employee isliable for failure to establish a police department or otherwiseprovide police protection service or, if police protectionservice is provided, for failure to provide adequate policeprotection or service, failure to prevent the commission ofcrimes, failure to detect or solve crimes, and failure toidentify or apprehend criminals." (Emphasis added.) 745ILCS 10/4-102 (West 2000).

The Board asserts that the crux of plaintiff's action is the Board'salleged failure to prevent a criminal assault and that section 4-102plainly covers liability arising from the failure to prevent crime. TheBoard also suggests that the appellate court's invocation of the liberalconstruction rule is disingenuous, as it promotes the interests of theplaintiff over the Board's interest in asserting a statutory immunity.

Nonetheless, the plain language of section 4-102 provides thatimmunity for failure to prevent a crime attaches "if police protectionservice is provided." (Emphasis added.) Therefore, section 4-102immunity attaches only if providing a bus attendant constitutesproviding police protection service. We agree with plaintiff that theBoard recognized when it furnished an attendant that the safetransportation of the students by bus required the presence ofsomeone to monitor the conduct of the students, rather than a policeofficer or someone standing in the place of a police officer to enforcethe law. This is analogous to a classroom situation where a teacherfails to supervise students adequately, resulting in a student beinginjured. Our appellate court has allowed recovery in such cases. See,e.g., Gammon v. Edwardsville Community Unit School District No.7, 82 Ill. App. 3d 586 (1980); Jackson v. Chicago Board ofEducation, 192 Ill. App. 3d 1093 (1989); Clay v. Chicago Board ofEducation, 22 Ill. App. 3d 437 (1974). In none of those cases,however, was section 4-102 immunity asserted as a defense.

In opposition, the Board notes that the appellate court has heldthe police protection services immunity applicable in a variety ofcircumstances not directly involving police personnel, citing Lawsonv. City of Chicago, 278 Ill. App. 3d 628 (1996) (board's failure to usea school's metal detectors daily); Hernandez v. Kirksey, 306 Ill. App.3d 912 (1999) (city-employed school crossing guard instructed a childto cross the street into the path of oncoming traffic); Goebig v. Cityof Chicago, 188 Ill. App. 3d 614 (1989) (city-employed schoolcrossing guard absent from usual post, thus permitting student tocross unguarded intersection); Cadena v. Chicago FireworksManufacturing Co., 297 Ill. App. 3d 945 (1998) (city personnelimproperly directing spectators at a fireworks display to stand inharm's way); and Burley v. On The Waterfront, Inc., 228 Ill. App. 3d412 (1992) (city failed to provide adequate lighting and security at apublic festival). While these cases did not involve services performedby police personnel, they all relate to functions traditionally performedby police, such as weapons detection, traffic control, and crowdsecurity and control.

Most recently, the appellate court applied section 4-102immunity when a Board-employed bus attendant failed to prevent orintercede in a student-on-student sexual assault on a bus. A.R. v.Chicago Board of Education, 311 Ill. App. 3d 29 (1999). Like thecase before us, the complaint in A.R. claimed that the Board failed toprovide adequate supervision on the bus and failed to protectpassengers from each other or from danger. The A.R. court held thatunder the plain language of section 4-102, the Board was immunizedfrom liability because it was apparent that "plaintiffs sought to imposeliability on defendant for failure to provide police services so as toprevent an assault upon A.R." A.R., 311 Ill. App. 3d at 34. Accordingto the Board, the holding in A.R. should control the result in the caseat bar.

Factually, A.R. differs from the case before us principallybecause, in A.R., an attendant was present and failed to prevent orintercede in the assault. Here, the Board did not furnish an attendanton the day of the assault. That distinction alone is not dispositive sincestatutory immunity under section 4-102 would apply in eithersituation if police protection services were provided.

Legally, the A.R. court focused on the plaintiff's argument thatsection 4-102 immunity applies only where a public entity is swornand charged with the duty of law enforcement. The court rejected thatargument and held that section 4-102 applies to all public entities asdefined in the Act. A.R., 311 Ill. App. 3d at 33-34. The A.R. court didnot consider the question of whether furnishing a bus attendantconstituted providing police protection services. As that is thepredicate for the attachment of immunity, we must focus on thepurpose of providing the attendant, rather than the conduct causingthe injury.

According to the allegations in the complaint, as a part of theeducational program, the Board transported students to and fromschool and it employed a bus attendant to supervise the children inaccordance with its duty to protect plaintiff's ward. Thus, theattendant functions like a teacher or a hall monitor whose verypresence may prevent unsafe activity or untoward behavior. Forinstance, a teacher may intervene in a fight between students, but ateacher does not act as a police officer apprehending an offender.Rather, a teacher acts as a peacekeeper and a monitor of studentbehavior. Further, there is no indication that the attendant was asworn police officer or had any authority to restrain or arrest apassenger.

Therefore, for the reasons discussed, we believe thatcharacterizing the bus attendant's function as a "police protectionservice" would stretch the plain meaning of that language, and itwould not be consonant with the intention of the legislature. Hence,we hold that under the allegations in plaintiff's complaint, the Boardwas not providing a police protection service by furnishing a busattendant. Accordingly, section 4-102 immunity does not apply. Tothe extent that the result we reach today is inconsistent with theholding in A.R. v. Chicago Board of Education, that case is overruled.

While it found that section 4-102 did not apply, the appellatecourt held that section 3-108 of the Act (745 ILCS 10/3-108 (West2000)) controls. 339 Ill. App. 3d at 856. That section providesimmunity for injuries resulting from a failure to supervise an activity.Only willful and wanton conduct is not protected by the immunityconferred in section 3-108. To plead willful and wanton conduct, aplaintiff must allege either a deliberate intention to harm or an utterindifference to or conscious disregard for the welfare of the plaintiff.Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429, 448(1992).

Here, the court rejected the Board's argument that the plaintifffailed to allege that the Board had knowledge of the special needs ofthe children on the bus, of the perpetrator's sexually aggressivebehavior, and of the need to have a bus attendant. The court alsorejected the Board's claim that the allegation of the Board'sawareness of the likelihood that male passengers were likely toattempt sexual assaults on other passengers is conclusory. The courtreasoned that the allegation that the assailant had been declared asexually aggressive child and was under a protective plan requiringthat he never be left unsupervised among other children was clearlysufficient to establish that the Board should have known of the specialneeds of the children on the bus. 339 Ill. App. 3d at 857.

In reviewing the sufficiency of the allegations in a complaint, weaccept as true all well-pleaded facts and all reasonably drawninferences from those facts in favor of the plaintiff. Geise v. PhoenixCo. of Chicago, Inc., 159 Ill. 2d 507, 510 (1994). While the courtmust interpret the allegations in the light most favorable to plaintiff,the failure to plead facts "cannot be aided by any principle of liberalconstruction." Mt. Zion State Bank & Trust v. ConsolidatedCommunications, Inc., 169 Ill. 2d 110, 119 (1995).

The Board complains that the allegation that it was aware of thelikelihood that male passengers would commit sexual assaults onothers is unfounded speculation. According to the Board, plaintiff hasnot pleaded facts regarding any prior sexual assaults and has notstated a basis for charging the Board with knowledge of the assaults.The appellate court found Doe v. Dimovski, 336 Ill. App. 3d 292(2003), apposite. 339 Ill. App. 3d at 858. In that case, the complaintalleged that the school board had knowledge of a teacher's priorinstances of sexual abuse. That knowledge was held sufficient to makethe likelihood of similar behavior with the student plaintiff reasonablyforeseeable. Dimovski, 336 Ill. App. 3d at 299.

The appellate court here held that the complaint in this case wassimilar to that in Dimovski, and that the Board's knowledge of thespecial needs of the plaintiff's ward and the dangerous propensitiesof the assailant were adequately pleaded. 339 Ill. App. 3d at 858. Weagree with the appellate court. The complaint alleged the disabledstatus of the plaintiff's ward, the fact of the assailant's SACY status,and the requirements of his protective plan. These averments of factare sufficient to present jury questions as to the knowledge of theBoard and the foreseeability of harm to the plaintiff's ward and, thus,the issue of willful and wanton conduct. We hold, therefore, that thetrial court erred in granting the Board's section 2-615 motion todismiss the complaint.

CONCLUSION

Under the facts of this case, section 4-102 immunity does notapply because furnishing a bus attendant for the transportation ofspecial needs students to and from school was not providing a policeprotection service. Plaintiff has adequately pleaded allegations ofwillful and wanton conduct by the Board in its knowing failure toprovide a bus attendant when it should have known of the likelihoodof harm to plaintiff's ward. We therefore affirm the appellate court.

Appellate court judgment affirmed.