Responding to School Bulling Complaints is Discretionary Act the Appellate Court Holds

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A mother whose child suffered personal injuries as a result of school bulling could not maintain a lawsuit against the School District, its superintendent, or the school principal according to the Fourth District of the Appellate Court of Illinois.

Beginning in August 2011, Vilma Hascall complained to the principal of her child’s elementary school about a “bulling situation” involving her child and three classmates. Although the principal promised to “address” the situation, it appears that the principal did not do much because the bullying continued. The mother requested a meeting with the school district superintendent, the principal, the child’s classroom teacher, the police, and the parents of the children that had bullied her child. She only met with the superintendent and the principal who assured her that they will contact the parents.

The bullying continued, however, and the child was cornered into a school bathroom and threatened and harassed. Ms. Hascall complained to the police and the principal called her promising to “take appropriate disciplinary actions.”

The bullying continued and the child was again cornered in to a bathroom by the three students who continued to bully the child, kicked the door, and threatened her. As a result of the assault, the child was injured. The mother complained to the police again. The police spoke with the parents of the children that were bulling Ms. Hascall’s child, and the parents reported that they never received any information that their children were bullying anyone. Despite the numerous complaints by Ms. Hascall, the principal denied that she had any knowledge that the child had been bulled before the last incident. The mother wanted to meet again with the superintendent, the principal, the police, the classroom teacher, and the parents of the bullies. The superintendent denied Ms. Hascall’s request, stating that they “will handle this situation.”

The mother filed a lawsuit against the school district, the superintendent, and the principal for the personal and emotional injuries suffered by her child as a result of the bullying.

The defendants filed a motion to dismiss claiming that they are immune from a lawsuit because the Tort Immunity Act provides complete immunity for either negligence or willful and wanton conduct. The trial court agreed and dismissed the case. Ms. Hascall appealed.

The issue before the appellate court was whether the conduct of the school district and its employees was immune under the Tort Immunity Act.

They would be immune only if the employees hold “either a position involving the determination of policy or a position involving the exercise of discretion” and also “have engaged in both the determination of policy and the exercise of discretion when performing the act or omission from which the plaintiff’s injury resulted.”

Ms, Hascall argued that the duties to enforce their own anti-bullying policy were ministerial acts to which immunity did not attach. She claimed that they were “mandated by Board policy to act in response to the bullying incidents, without regard to the exercise of discretion..”

The appellate court disagreed. The court determined that “the acts or omissions of which plaintiffs complain constituted discretionary acts and policy determinations, not ministerial acts.” The court determined that the school principal that deals with disciplinary matter balances the competing interest, including the “confidentiality of his information source, the appropriate level of punishment, the concerns of all the children’s parents, the impact of his decision on the student body generally-and make a judgment as to what balance to strike among them.” According to the court, “[D]iscretionary acts are those which are unique to a particular public office, while ministerial acts are those which a person performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority, and without reference to the official’s discretion as to the propriety of the act.” While the School Code requires that each school district “create and maintain a policy on bullying,” the policy does not mandate a particular response to a specific set of circumstances. The determination of whether bullying has occurred and the appropriate consequences and remedial action are discretionary acts under these facts..” The court concluded “We find the acts or omissions of which plaintiffs complain constituted discretionary acts.”

While the decision follows precedent, we urge the legislators for a legislative fix to include a willful and wanton exception for school bullying cases in the Tort Immunity Act 745 ILCS 10 et seq. Otherwise, parents like Ms. Hascall will have no recourse and students like her child will be left to the total discretion of a principal without any checks and balances.

Click here to access the entire decision Hascall v. Williams, 2013 IL App (4th) 121131.

While there is immunity in this case, there are many other cases where parents can receive compensation for their children. If you need a personal injury attorney on behalf of yourself or your child, contact the law firm of Zneimer & Zneimer p.c. for help. Our consultation is free.