Hooke v. Montessori School of Lake Forest

2023 IL App (2d) 230059-U
No. 2-23-0059
Order filed November 2, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

ANDREW HOOKE, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
)
v. ) No. 21-L-378
)
MONTESSORI SCHOOL OF LAKE )
FOREST, DEBRA PAKKALA, and ) Honorable
ANN JORDAHL, ) Jorge L. Ortiz and
) Jacquelyn D. Melius
Defendants-Appellees. ) Judges, Presiding.
______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court.
Justices Jorgensen and Mullen concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err in (1) setting parameters on the depositions of
defendants’ affiants, (2) entering what amounted to summary judgment in favor of
defendants, and (3) denying plaintiff’s motion for leave to file an amended
complaint. Therefore, we affirm.

¶2 Plaintiff, Andrew Hooke, brought a multi-count negligence complaint against his former

school, the Montessori School of Lake Forest (the school), the executive director of the School at

the time of the incident, Ann Jordahl, and the teacher assigned to plaintiff’s classroom, Debra

Pakkala, seeking damages stemming from an injury plaintiff sustained to his right eye while at the
2023 IL App (2d) 230059-U

School. Plaintiff amended the complaint twice, and the circuit court ultimately dismissed

plaintiff’s second amended complaint with prejudice pursuant to section 2-619(a)(9) of the Code

of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2020)). Plaintiff appeals, arguing that

the court erred in limiting the topics on which he could depose defendants’ affiants in support of

their motion to dismiss, striking portions of the counter-affidavits plaintiff offered in support of

his response, dismissing with prejudice his second amended complaint, and denying him leave to

file a third amended complaint. We affirm.

¶3 I. BACKGROUND

¶4 This matter arises from an injury plaintiff received at the school on December 11, 2012.

Plaintiff, then a sixth-grade student, was injured when another minor student in his classroom,

whom we will refer to as A.B., shot a pencil into plaintiff’s right eye using a rubber band.

Plaintiff’s cornea was torn, which he alleges caused him to suffer severe and permanent injuries.

¶5 More than eight years later, 1 on May 20, 2021, plaintiff filed a six-count negligence

complaint against the school, Jordahl, and Pakkala. Plaintiff did not name A.B. as a defendant. In

his complaint, plaintiff alleged that, at the time of the incident, Pakkala left her classroom

unsupervised, which provided A.B. an opportunity to harm plaintiff, and that defendants either

knew or should have known that A.B. posed a threat of physical harm to the students because the

School possessed written documentation that A.B. had verbally threatened other students at the

1
Defendants concede that the complaint was timely under section 5/13-211 of the Code

(735 ILCS 5/13-211 (West 2020)), which allows a minor to “bring an action for personal injuries

within two years after the minor turns 18, regardless of whether the cause of action accrued more

than two years earlier.” Pirrello v. Maryville Academy, Inc., 2014 IL App (1st) 133964, ¶ 14.

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School, including a prior incident when A.B. threatened to stab a student with a Halo 2 pencil.

Counts I and II alleged direct negligence and willful and wanton misconduct against the school,

respectively; counts III and IV were directed at Jordahl and alleged negligence and willful and

wanton misconduct, respectively; and counts V and VI raised claims against Pakkala for

negligence and willful and wanton conduct, respectively.

¶6 On August 19, 2021, defendants filed a combined motion to dismiss plaintiff’s complaint

pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2020)). Pertinently, under

section 2-615 of the Code (id. § 2-615) defendants argued that (1) the complaint lacked sufficient

facts to establish that defendants owed plaintiff a duty to prevent the injury, (2) plaintiff could not

maintain a direct negligence claim against the school, and (3) the complaint failed to allege facts

to support a finding of willful and wanton misconduct by defendants. Defendants also argued that

each count should be dismissed pursuant to section 2-619(a)(9) of the Code (id. § 2-619(a)(9))

because plaintiff’s claims were barred by affirmative matter, namely that defendants lacked any

knowledge prior to the incident that A.B. posed a threat to others at the school, the classroom was

not unsupervised at the time of the incident, and because defendants were immune under section

24-24 of the School Code (105 ILCS 5/24-24 (West 2020)).

¶7 In support of their motion to dismiss, defendants attached affidavits from three individuals,

namely: Hope Allegretti, Jordahl, and Pakkala. Allegretti, the current executive director at the

school, averred that she reviewed the school’s records concerning A.B., but that the school did not

2
Halo is a popular first-person shooter videogame franchise. Based on exhibits included

in the record, we reasonably presume that plaintiff’s reference to “a Halo pencil” refers to a pencil

that is adorned with a photo or design from the Halo videogame franchise.

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2023 IL App (2d) 230059-U

possess any records indicating that A.B. had physically harmed any student or that he had

threatened to do so. Likewise, the school did not possess any documents from parents that such

physical abuse had occurred, nor did it possess documentation that A.B. had threatened to harm a

student with a Halo pencil. Allegretti further attested that, based on her review of the

documentation related to the incident, a teacher aide, Barbara Beyers, was in the classroom at the

time of plaintiff’s injury and the classroom was thus not unsupervised when plaintiff was injured.

¶8 Jordahl, the executive director of the school at the time the incident occurred, averred that

she was unaware of any prior reports or incidents in which A.B. physically harmed or verbally

threatened to harm any student at the school, including any reports by any parent of a student

regarding A.B. threatening a fellow student with a Halo pencil, and that Beyers was in the

classroom at the time of the incident.

¶9 The third affidavit was prepared by Pakkala, who was plaintiff’s classroom teacher at the

time of the injury. Pakkala averred that she was unaware of any reports or incidents prior to

plaintiff’s injury regarding A.B. physically harming or verbally threatening to harm any students

at the school, and she was unaware of any reports or incidents prior to the occurrence regarding

A.B. physically harming or verbally threatening to harm students at the school. She also was

unaware of prior incidents or reports by any parent that A.B. had threatened to stab their child with

a Halo pencil. Pakkala also attested that the classroom was not unsupervised at the time of the

incident because she “left the classroom in the care of two adults,” Beyers and a Spanish teacher.

¶ 10 The circuit court entered an order on September 1, 2021, continuing defendants’ section 2-

619 motion and setting a briefing schedule on defendants’ section 2-615 motion to dismiss.

¶ 11 On October 20, 2021, plaintiff responded to the section 2-615 motion to dismiss. He

disputed defendants’ arguments that they did not owe plaintiff a duty to prevent the injury and that

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the complaint failed to allege facts sufficient to establish a claim for willful and wanton

misconduct, but he expressly conceded that he could not maintain a direct negligence action

against the school (count I) based on defendants’ arguments raised in their section 2-615 motion

to dismiss, and he withdrew that claim.

¶ 12 On December 8, 2021, following oral argument by the parties, the circuit court denied

defendants’ section 2-615 motion to dismiss and granted plaintiff leave to file an amended

complaint removing the direct negligence count against the School.

¶ 13 Plaintiff thereafter filed an amended complaint on December 13, 2021. Pertinently, he

dropped the ordinary negligence counts against the School, Jordahl, and Pakkala (counts I, III, and

IV in the initial complaint, respectively), realleged the willful and wanton counts against the

School, Jordahl, and Pakkala, and added a respondeat superior claim against the school due to the

alleged willful and wanton conduct of Jordahl and Pakkala. As a result, plaintiff’s amended

complaint alleged willful and wanton conduct against the school (count I), Jordahl (count II), and

Pakkala (count III), and a willful and wanton count against the school under a theory of

respondeat superior (count IV).

¶ 14 On January 21, 2022, after obtaining leave of court, plaintiff filed a second amended

complaint, which is the subject of the instant appeal. He raised the same claims and operative facts

he alleged in the first amended complaint, but he removed several allegations related to the

School’s alleged failure to provide adequate training and supervision for its staff and failure to

adequately staff the classroom prior to the incident. Plaintiff also detailed the specific

circumstances of the incident. Specifically, Pakkala exited her classroom and left it unattended

and, in her absence, A.B. “took the pencil that [plaintiff] was using, then used a rubber band to

shoot the pencil at [plaintiff] and the pencil struck [plaintiff] in the right eye.”

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¶ 15 On February 4, 2022, defendants moved to dismiss plaintiff’s second amended complaint

pursuant to section 2-619(a)(9) of the Code. Similar to their prior motion to dismiss, defendants

argued that dismissal was warranted because defendants lacked prior knowledge that A.B. posed

a threat to other students and therefore were immune from liability under the School Code. In

support of their first argument, defendants re-attached to their motion the affidavits prepared by

Allegretti, Jordahl, and Pakkala, which they contended sufficed for affirmative matter under

section 2-619(a)(9). Relying on the affidavits, defendants argued that the second amended

complaint consisted of “conclusions of law and conclusions of material fact which must be

disregarded,” including plaintiff’s allegations that the school:

“had written records indicating that A.B. was physically abusive to other students,

and verbally threatened other students, that Defendant-Jordahl was informed that A.B.

threatened to stab another student with a Halo pencil, that these defendants knew that A.B.

posed a threat to other students and that the classroom was unsupervised.”

In defendants’ view, the affidavits “directly contradict [these] cited crucial conclusions of law and

conclusions of material fact.” Defendants continued that the affidavits “establish an affirmative

matter barring the plaintiff’s willful and wanton claims” because, in the absence of notice that A.B.

was a threat to other students, defendants’ conduct could not serve as a basis for a willful and

wanton misconduct claim as a matter of law.

¶ 16 Concerning their immunity argument, defendants observed that each of plaintiff’s counts

“consist[ed] of allegation[s] related to the supervision and discipline of children” and were

therefore barred under section 2-619(a)(9) of the Code by virtue of “the immunity granted to

schools and educators under [section 24-24 of the School Code] and the doctrine of

in loco parentis absent a showing of willful and wanton conduct.”

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¶ 17 On April 12, 2022, the circuit court entered an order setting an amended briefing schedule

on defendants’ motion to dismiss, whereby plaintiff was given until August 2, 2022, to respond to

defendants’ motion, defendants were granted until August 31, 2022, to file a reply brief in support,

and hearing on the motion was scheduled for September 14, 2022. The court also entered a case

management order and trial continuance order setting a discovery cutoff date of November 21,

2022, and scheduling trial for January 30, 2023.

¶ 18 Plaintiff’s counsel moved to withdraw on August 9, 2022, which was after plaintiffs’ brief

in response to the motion to dismiss was due. The circuit court granted the motion and plaintiff

was given 45 days to retain new counsel. On September 27, 2022, plaintiff appeared pro se, and

the trial court entered a revised briefing schedule on defendants’ motion to dismiss, which allowed

plaintiff to file a response to defendant’s motion by October 11, 2022, allowed defendants until

October 25, 2022, to file a reply in support, and scheduling a hearing date on the motion for

November 9, 2022.

¶ 19 Plaintiff retained new counsel on October 5, 2022, who filed an emergency motion to

vacate the briefing schedule, as well as the case management and trial date orders. He also

requested that defendants’ motion to dismiss be entered and continued until after written and oral

fact discovery could be completed. Plaintiff argued that, although the parties had answered written

discovery, no motions were yet filed regarding defendants’ objections or answers to plaintiff’s

discovery, and no depositions had yet been taken. Plaintiff contended that further discovery was

necessary in order for him to effectively oppose the motion to dismiss.

¶ 20 On October 6, 2022, the circuit court vacated the previous briefing schedule, granted

plaintiff leave to issue deposition subpoenas to Allegretti, Jordahl, and Pakkala, extended the

briefing schedule, set the hearing on the motion to dismiss for December 20, 2022, and indicated

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that it would address plaintiff’s requests for further discovery and postponement of trial at the time

of the hearing on defendants’ motion to dismiss.

¶ 21 On October 21, 2022, plaintiff filed a motion to clarify the parameters, if any, for the

depositions of the affiants to defendants’ motion to dismiss. The motion was necessitated,

according to plaintiff, because the parties were unable to agree on the scope of permissible inquiry

for said depositions. Plaintiff sought to depose Allegretti, Jordahl, and Pakkala, on the subject

matter of their affidavits, including any behavior, drawings, threats, language, or other concerning

issues they were aware of relating to A.B., not only as it related to or was directed to other students,

but also as to any concerns they were aware of generally with A.B. He framed the issue as

concerning “whether the Affiants may be questioned on direct threats or behavioral concerns of

[A.B.] directly only to other students at the school, or can be questioned on any concerns they were

aware of generally regarding [A.B.’s] behavior.”

¶ 22 Defendants responded to the motion to clarify on October 26, 2022. Premised on the

argument that plaintiff’s suggested line of inquiry would circumvent A.B.’s privacy rights under

the Health Insurance Portability and Accountability Act of 1996 (HIPPA) and the state and federal

constitutions, defendants requested that the court limit plaintiff “to deposing these defendants

regarding the contents of their affidavits only” and bar plaintiff from inquiring “about A.B.’s

[behavior] generally, or communications the school had with other individuals outside of whether

A.B. was reported as a danger to other students prior to the date of the occurrence.” In defendants’

view, A.B.’s “general behavior and *** drawings” were irrelevant. Defendants also sought leave

to depose Ann Forowycz, who plaintiff identified during discovery as the parent of the child whom

A.B. allegedly threatened to stab with a Halo pencil.

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¶ 23 On October 28, 2022, plaintiff filed a reply in support of his motion to clarify. He reiterated

the argument that he should be permitted to fully question Allegretti, Jordahl, and Pakkala

regarding the matters raised in their affidavits “and natural corollaries derived therefrom, including

any behavior, drawings, threats, language, or other concerning issues they were aware of relating

to [A.B.], not only as it was directed to other students, but rather any concerns they were aware of

or should have been aware of with [A.B.].” Plaintiff further argued that defendants lacked standing

to assert A.B.’s right to privacy and that, in any event, defendants failed to specify which

provisions of HIPAA or the state and federal constitutions they relied on to support their argument.

¶ 24 On November 1, 2022, after hearing oral argument, the circuit court ruled in favor of

defendants and limited the subject matter and extent to which plaintiff was permitted to question

defendants’ affiants at deposition. The written order indicates that plaintiff was prohibited from

questioning the affiants regarding: (1) threats A.B. made to anyone other than students, teachers,

and staff at the School; (2) A.B.’s general behavior; and (3) A.B.’s mental health evaluations,

medical diagnoses, individualized education program (IEP), plans based on section 504 of the

Rehabilitation Act of 1973, or medications. Notwithstanding the foregoing, plaintiff was expressly

permitted to question defendants’ affiants regarding A.B.’s drawings and what actions they took

in response to them, but plaintiff was not permitted to inquire regarding the specifics of any

conversations.

¶ 25 Subject to the limitations referenced above, plaintiff thereafter deposed Jordahl, Allegretti,

Pakkala, as well as Beyers, in early November 2022.

¶ 26 On November 17, 2022, plaintiff filed his response to defendants’ motion to dismiss the

second amended complaint. He raised three main arguments. First, plaintiff argued that the School

Code offered no immunity to the school because it applied only to educators and not to the school,

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itself, such that defendant’s motion to dismiss count I (willful and wanton conduct against the

School) should be denied. Second, plaintiff contended that the School Code only applied to

plaintiff’s claims concerning the alleged failure to supervise and failure to discipline, and that

defendants’ motion to dismiss “must be denied as to the question of whether the classroom was

left unsupervised.” Third, he argued that the affidavits and testimony of Allegretti, Jordahl, and

Pakkala raised genuine issues of material fact that precluded dismissal.

¶ 27 Plaintiff supported his response to defendants’ motion with counter-affidavits from

Forowycz, Shelly Hooke (plaintiff’s mother), and plaintiff.

¶ 28 Forowycz averred that her son, plaintiff, and A.B. were all students in Pakkala’s classroom

on December 11, 2012. Prior to that date, she “complained/inquired to school personnel often”

regarding Pakkala’s management of the classroom and, “upon information and belief, and based

on [her] observations, there was a lack of leadership for the students in this classroom.” She met

with Pakkala in October 2012 for a parent-teacher conference, and Forowycz “specifically

recall[ed]” telling Pakkala about A.B.’s drawings “that depicted inappropriate and disturbing

subject matter,” including penises and guns, and she asked Pakkala to look at the drawings. She

further attested to the authenticity of an e-mail chain that she attached to her affidavit. The exhibit

reflects that Forowycz sent an e-mail to Jordahl and Pakkala on December 12, 2012, which was

the day after plaintiff’s injury. Forowycz wrote in her e-mail that she “wanted to reiterate [her]

concern about [A.B.’s] behavior, language drawings, etc,” and that it was “very disturbing to [her]

that [Forowycz’s son] has mentioned on numerous occasions [A.B.] says, ‘I could stab you with

my Halo pencil’ or whatever he is holding.” Forowycz averred that she was unable to “recall

specific other conversations or emails,” but her use of the word “reiterate” indicated to her that she

“did have additional oral or written communication with the school” prior to her December 12,

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2012, e-mail. Forowycz further averred that Hooke gave her the e-mail chain, and that Forowycz

no longer had access to her e-mail account because the hard drive on her computer crashed.

¶ 29 Hooke averred that after plaintiff’s injury but before December 31, 2012, she met with

Forowycz at her home. During the meeting, Forowycz “had in her possession, which [Hooke]

observed, a file folder containing a drawing, and [Forowycz] gestured to the file folder indicating

that the folder contained the back-and-forth communications with the school about her concerns.” 3

¶ 30 Plaintiff averred that at the time of the incident, A.B. was standing “more that an arm’s

length away” and that the pencil hit plaintiff’s eye “with force.” He also averred that A.B. was

immature and “inappropriate in his conversations,” and that A.B. “discussed video games that he

played with content inappropriate for his age, including Borderlands, Skyrim, and Halo.” Plaintiff

also attested that Beyers “usually remained seated” and “had minimal interaction with the

children,” and that “[a]t the time of the incident, there was a shelving unit between [plaintiff’s]

location and the rest of the main classroom, which obstructed the view to or from the other part of

the main classroom.” Plaintiff also detailed the specifics of his injury.

3
Hooke also attested that, during this meeting, Forowycz told her that A.B. threatened

Forowycz’ “son prior to the incident, claiming he was going to stab him with a Halo pencil,” and

that “she had been going ‘around and around’ communicating with Ann Jordahl *** about

concerns she had over [A.B.’s] threats made to her son, including that [A.B.] was going to stab her

son with a Halo pencil, and about concerns she had about a drawing made by [A.B.].” The circuit

court struck this portion of her affidavit on hearsay grounds, and plaintiff expressly does not appeal

the court’s ruling striking this language from the affidavit.

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¶ 31 The next day, plaintiff filed a motion for leave to file a third amended complaint.

Specifically, plaintiff sought to add a count for a claim of right to recovery for his medical bills

incurred as a minor pursuant to an assignment from his parents (the Hookes) or, in the alternative,

to add the Hookes as party-plaintiffs so that they could seek recovery of the medical bills they paid

on plaintiff’s behalf, when he was a minor, pursuant to an assignment plaintiff made to the Hookes.

Plaintiff elaborated that the basis for adding the count regarding plaintiff’s recovery of his medical

bills pursuant to an assignment from the Hookes, as well as the alternative count on behalf of the

Hookes, was the fact that plaintiff was a minor at the time of the incident and, as a result, his

parents were obligated to pay his medical bills under the Rights of Married Persons Act (750 ILCS

65/15 (West 2020)), which is commonly referred to as the Family Expense Act. 4 Plaintiff also

sought to reinstate the direct negligence claim against the school that he previously opted to

withdraw. Plaintiff attached his proposed third amended complaint, which contained the following

counts: ordinary negligence against the school (count I), willful and wanton negligence against the

school, Jordahl, and Pakkala (counts II, III, and IV, respectively), willful and wanton negligence

premised on a theory of respondeat superior as to Jordahl and Pakkala (counts V and VI,

respectively), and a “right to recover for [medical] bills paid” by the Hookes based on an

assignment they executed in favor of plaintiff of the right to recovery (count VII). Expressly as

4
The Family Expense Act “requires parents to pay for the ‘expenses of the family,’ which,

according to judicial interpretation of the statute, includes medical expenses of their minor

children.” Pirrello, 2014 IL App (1st) 133964, ¶ 11. Parents can maintain a cause of action to

recover payment of medical expenses from the tortfeasor who injured their child. Cullotta, 287

Ill. App. 3d at 975.

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an alternative to count VII, plaintiff raised in count VIII a “right to recover for [medical] bills paid”

by the Hookes based on an assignment of rights from plaintiff to the Hookes. In other words,

plaintiff alleged a right to recover his medical bills incurred as a minor pursuant to an assignment

from the Hookes, or, in the alternative, to add a count on behalf of the Hookes for their right to

recover for the medical bills they paid on plaintiff’s behalf when he was a minor.

¶ 32 On December 1, 2022, defendants filed a response in opposition to plaintiff’s motion for

leave to amend. They argued that plaintiff previously litigated his direct negligence claim against

the School and that the additional counts plaintiff sought to add were untimely.

¶ 33 Plaintiff replied on November 19, 2022, arguing that the additional counts were not time

barred and that he should be permitted to revive his direct negligence claim against the school

because he previously withdrew the claim on his own accord and it was not “previously litigated,”

as defendants had argued.

¶ 34 The circuit court entered an order on December 20, 2022, denying plaintiff’s motion for

leave to file a third amended complaint “for the reasons set forth in defendants’ motion.” The

court also cited the factors outlined in Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill.

2d 263 (1992) as a basis for denying plaintiff’s motion, and it concluded that each factor disfavored

allowing the amendment. The court gave defendants until January 17, 2023, to file a reply in

support of their motion to dismiss, and it set the motion for hearing on January 24, 2023.

¶ 35 On January 17, 2023, defendants moved to strike the affidavits of Forowycz, Hooke, and

plaintiff on the basis that they were insufficient under Illinois Supreme Court Rule 191 (eff. Jan.

4, 2013). Defendants also filed a reply in support of their motion to dismiss, where they argued

that the affidavits attached to their motion “remain[ed] unrefuted” and established that they had no

reason to anticipate that A.B. posed a danger to students prior to December 11, 2012. Defendants

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argued that, in the absence of prior knowledge, their conduct was not willful and wanton, which

triggered the immunity provisions of the School Code.

¶ 36 On January 24, 2023, the circuit court heard oral argument and ruled on defendants’ motion

to strike plaintiff’s affidavits and defendants’ motion to dismiss. It struck certain statements in the

affidavits prepared by Forowycz and Hooke, but left plaintiff’s affidavit intact. In a separate

written order, the court granted defendant’s motion to dismiss pursuant to section 2-619(a)(9) of

the Code and dismissed plaintiff’s second amended complaint with prejudice. In explaining its

ruling, the court stated that defendants’ “affidavits establish[ed] that the School did not have any

notice, actual prior notice that A.B. posed a threat to the plaintiff or to anyone else,” and that those

affidavits were unrefuted. The court reasoned that, therefore, the burden shifted to plaintiff “to

establish that the affirmative matter is unfounded or involves an issue of material fact,” but plaintiff

failed to satisfy that burden because, “again, the affidavits aren’t refuted.” The court explained

that it would have concluded that defendants lacked prior knowledge that A.B. posed a threat to

other students even if it had not stricken portions of the counter-affidavits. Additionally, the court

stated that defendants’ evidence established that a teacher aide and a Spanish teacher were present

in the classroom at the time of plaintiff’s injury, and the classroom was therefore not unsupervised.

¶ 37 Based on defendant’s unrefuted lack of notice that A.B. posed a threat, the circuit court

found that defendants had not engaged in willful and wanton misconduct and held that defendants

were therefore entitled to immunity under the School Code, which the court described as granting

immunity to educators and schools from ordinary negligence in supervising school activities. It

explained that “willful and wanton conduct *** ha[d] not been shown here, and so this immunity

indeed constitute[d] affirmative matter *** defeating the claims brought by the plaintiff.” In short,

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the court concluded that defendants were entitled to immunity under section 24-24 of the School

Code because willful and wanton conduct had not been shown.

¶ 38 Plaintiff timely filed a notice of appeal.

¶ 39 II. ANALYSIS

¶ 40 Plaintiff argues on appeal that the trial court erred in: (1) limiting the topics on which

plaintiff could depose defendants’ affiants in support of their motion to dismiss, (2) striking

portions of the affidavits prepared by Forowycz and Hooke in support of plaintiff’s opposition to

defendants’ motion to dismiss, (3) granting defendants’ motion to dismiss; and (4) denying

plaintiff’s motion for leave to file a third amended complaint.

¶ 41 A. Restrictions on the Scope of Inquiry at Deposition

¶ 42 Plaintiff’s first argument is that the circuit court erred in limiting the topics on which he

could depose defendants’ affiants as set forth in its November 1, 2022, discovery order. Like in

his motion to clarify the parameters for deposition, plaintiff asserts on appeal that he wished to

depose defendants’ affiants regarding the subject matter of their affidavits—not just as they

pertained to any behavior, drawings, threats, language, or other concerning issues they were aware

of regarding A.B. as directed toward students and teachers at the school—but also regarding “any

concerns they were aware of generally with [A.B.].” In other words, plaintiff wished to question

them regarding “any information they had about [A.B.’s] behavior that was concerning[,]

generally[,] and that arguably should have been addressed by the *** School prior to the subject

incident.” Plaintiff also asserts that he desired to question the affiants regarding conversations

they had with others after they learned of A.B.’s concerning behavior, drawings, threats, or

language, but he was prohibited from doing so by the court’s ruling barring him from asking about

the specifics of any conversations they had in response to A.B.’s concerning drawings or threats.

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In plaintiff’s view, any information regarding defendants’ knowledge of A.B.’s general behavior

was “relevant and material” to plaintiff’s theory of the case, and the court’s ruling barring inquiry

into these aspects of the affiants’ knowledge was erroneous.

¶ 43 Defendants respond that the circuit court acted within its discretion because the discovery

order balanced the privacy rights of A.B., who is not a party to the case, with plaintiff’s need to

inquire whether the affiants possessed knowledge prior to the incident that A.B. posed a threat to

others. They emphasize that plaintiff was able to question defendants’ affiants “on the critical

issues regarding A.B.,” namely “whether he had been reported as a physical threat to others prior

to the incident.” Moreover, they argue that A.B.’s general behavior and drawings were irrelevant,

but rather, “[t]he only relevant issue regarding notice is if the school was advised prior to the ***

incident that other parents or students felt that [A.B.] posed a danger to the safety of other children

at the school.”

¶ 44 The discovery process is “a mechanism for the ascertainment of truth, for the purpose of

promoting either a fair settlement or a fair trial.” Ostendorf v. International Harvester Co., 89 Ill.

2d 273, 282 (1982). The main goal of discovery is to encourage complete disclosure (Central

Illinois Light Co. v. Home Insurance Co., 342 Ill. App. 3d 940, 962 (2004)), and the supreme court

rules that govern discovery procedures are designed to be flexible and adaptable to the infinite

variety of cases and circumstances appearing in the trial courts (Kaull v. Kaull, 2014 IL App (2d)

130175, ¶ 29).

¶ 45 Supreme Court Rule 201(b)(1) (eff. July 1, 2014) provides that “a party may obtain by

discovery full disclosure regarding any matter relevant to the subject matter involved in the

pending action, whether it relates to the claim or defense of the party seeking disclosure or of any

other party.” For purposes of this rule, relevance is interpreted broadly to include “not only that

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which is admissible at trial, but also that which leads to admissible evidence.” Salvator v. Air &

Liquid Systems Corp., 2017 IL App (4th) 170173, ¶ 65.

¶ 46 While the scope of permissible discovery is broad, it is not limitless. The court must

exercise its discretion and balance “the needs of truth and excessive burden to the litigants.” Y-

Not Project, Ltd. v. Fox Waterway Agency, 2016 IL App (2d) 150502, ¶ 43 (quoting Welton v.

Ambros, 351 Ill. App. 3d 627, 633 (2004)). Supreme Court Rule 201 provides the trial court with

broad authority to supervise all or any part of the discovery process. Trial courts “are vested with

considerable discretion to supervise the course of discovery as the court deems appropriate.”

Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 223 (2000) (citing Atwood v. Warner Electric Brake

and Clutch Co., 239 Ill. App. 3d 841, 88 (1992)). In the context of discovery depositions, the

deponent may be examined regarding any matter subject to discovery. Ill. S. Ct. R. 206(c)(1) (eff.

Oct. 1, 2021).

¶ 47 In general, courts review discovery orders for an abuse of discretion. Jiotis v. Burr Ridge

Park District, 2014 IL App (2d) 121293, ¶ 22. See also Payne v. Hall, 2013 IL App (1st) 113519,

¶ 13 (stating that “[t]rial courts are afforded wide latitude in determining the permissible scope of

discovery, and their rulings on discovery matters are generally reviewed for an abuse of

discretion”). “A court abuses its discretion only if it acts arbitrarily, without the employment of

conscientious judgment, exceeds the bounds of reason and ignores recognized principles of law;

or if no reasonable person would take the position adopted by the court.” Id. ¶ 12.

¶ 48 Notwithstanding plaintiff’s arguments on appeal, we are unable to evaluate whether the

November 1, 2022, discovery order represented an abuse of the trial court’s discretion because

plaintiff has not provided a sufficient record for us to do so. Pertinent to this issue, the record

includes plaintiff’s “motion to clarify parameters, if any, for depositions of affiants,” defendants’

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response, and the November 1, 2022, discovery order, but it lacks a transcript from the November

1, 2022, proceedings, or an acceptable substitute, such as a bystander’s report or an agreed

statement of the facts as permitted by Rules 323(c) and (d). Ill. S. Ct. R. 323 (c), (d) (eff. July 1,

2017). “[A]n appellant has the burden to present a sufficiently complete record of the proceedings

at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed

that the order entered by the trial court was in conformity with the law and had a sufficient factual

basis.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). “Any doubts which may arise from the

incompleteness of the record will be resolved against the appellant.” Id. at 392. When the record

on appeal is incomplete, “a reviewing court should actually ‘indulge in every reasonable

presumption favorable to the judgment from which the appeal is taken, including that the trial court

ruled or acted correctly.’ ” Smolinski v. Vojta, 363 Ill. App. 3d 752, 757-58 (2006), quoting People

v. Majer, 131 Ill. App. 3d 80, 84 (1985).

¶ 49 In this case, the record shows that the parties were at an impasse regarding the permissible

scope of inquiry related to the anticipated discovery depositions of defendants’ affiants, and

plaintiff prompted the court to resolve the dispute by moving to “clarify” the parameters for

deposition, which resulted in the discovery order that plaintiff now challenges. The order states

that the matter was fully briefed, that the court heard oral argument, and that the court was “fully

advised in the premises.” It then lists various parameters for, or limitations on, the questions

plaintiff was permitted to ask of defendants’ affiants. However, it contains neither express written

findings nor an explanation setting forth the reasons the court identified to impose the parameters

that plaintiff now complains of. Plaintiff’s claim largely depends on what transpired during the

November 1, 2022, hearing, what arguments the parties made, and the reasons the court provided

for entering the order. Without any record of the basis for the court’s ruling, we are unable to

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determine whether the order constituted an abuse of the trial court’s discretion, and we therefore

must presume that the court acted in conformity with the law. Foutch, 99 Ill. 2d at 393. See

Illinois Founders Insurance Co. v. Williams, 2015 IL App (1st) 122481, ¶ 54 (“[w]e cannot divine

the trial court’s reasoning in denying defendant’s motion and cannot determine whether that

decision constituted an abuse of discretion”). The presumption is especially strong where, as here,

the order states that the court was fully advised in the premises. Maniscalco v. Porte Brown, LLC,

2018 IL App (1st) 180716, ¶ 30. Plaintiff’s claim therefore fails on this basis alone.

¶ 50 Foutch principles aside, plaintiff’s claim would still fail. At its core, plaintiff’s argument

is simply that the circuit court erred by barring him from questioning defendants’ affiants on

matters that were “relevant and material” during their depositions. Plaintiff’s argument is

shortsighted because it overlooks the fact that, even if information is relevant, it need not be

produced during discovery if the burden of producing it outweighs the benefit. Carlson v.

Jerousek, 2016 IL App (2d) 151248, ¶ 39. “The legitimate privacy concerns of the responding

party are one of the burdens that a court can and should consider.” Id.

¶ 51 During the discovery process, as well as in response to plaintiff’s motion to clarify,

defendants consistently invoked A.B.’s right to privacy on the basis that he was a minor at the time

of the incident, was not a party to the litigation, and had not consented to the disclosure of any of

his private information. Defendants’ concern for A.B.’s privacy rights formed the crux of their

argument and perhaps factored into the circuit court’s analysis, but plaintiff’s opening brief does

not address defendants’ arguments regarding A.B’s right to privacy or the court’s probable

concerns for the same. Plaintiff, in his reply brief, acknowledges these points but asserts that

defendants were not specific enough in identifying which constitutional provisions should have

barred disclosure. This sidesteps the issue because the burden of persuasion remains with the

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appellant—plaintiff in this matter—regarding his claim of error. Yamnitz v. William J.

Diestelhorst Co., Inc., 251 Ill. App. 3d 244, 250 (1993). Plaintiff does concretely argue that

schools are not covered entities and that educational records are not protected health information

under HIPAA but, as referenced above, we have no idea whether HIPAA considerations guided

the court’s analysis due to the lack of an adequate record. Plaintiff has not carried his burden of

persuasion that the November 1, 2022, discovery order was an abuse of discretion, and his claim

therefore fails.

¶ 52 B. Misdesignation of Summary Judgment Motion as a Motion to Dismiss

¶ 53 Plaintiff next contends that the circuit court erred in granting defendant’s section 2-

619(a)(9) motion and dismissing his second amended complaint with prejudice. Section 2-619 of

the Code allows a defendant to obtain an involuntary dismissal of a claim or action based upon

certain specified defenses or defects in the complaint. 735 ILCS 5/2-619 (West 2020). Its purpose

“is to dispose of issues of law and easily proved issues of fact at the outset of litigation.” Van

Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003). In this respect, a section 2-619 motion

“is similar to a summary judgment motion because [it] *** essentially amounts to a summary

judgment procedure” (Malanowski v. Jabamoni, 293 Ill. App. 3d 720, 724 (1997)) and, in ruling

on either motion, we “must determine whether the existence of a genuine issue of material fact

should have precluded the dismissal or, absent such an issue of fact, whether the dismissal is proper

as a matter of law.” Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 254 (2004).

¶ 54 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and all

well-pleaded facts and reasonable inferences therefrom (Reynolds v. Jimmy John’s Enterprises,

LLC, 2013 IL App (4th) 120139, ¶ 31) but raises certain defects, defenses, or other affirmative

matter appearing on the face of the complaint or established by external submissions that defeat

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the action (CACH, LLC v. Moore, 2019 IL App (2d) 180707, ¶ 11). A defendant is essentially

saying, “yes, the complaint was legally sufficient, but an affirmative matter exists that defeats the

claim.” Winters v. Wangler, 386 Ill. App. 3d 788, 792 (2008). In ruling on a section 2-619 motion

to dismiss, the circuit court must interpret all the pleadings and supporting documents in the light

most favorable to the nonmoving party. Hubble v. Bi-State Development Agency of the Illinois-

Missouri Metropolitan District, 238 Ill. 2d 262, 267 (2010).

¶ 55 Here, defendants were granted dismissal based upon section 2-619(a)(9) of the Code,

which permits involuntary dismissal where “the claim asserted against defendant is barred by other

affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9)

(West 2020). Again, defendants moved to dismiss plaintiff’s second amended complaint because

the affidavits attached to the motion established that defendants lacked any knowledge prior to the

incident that A.B. posed a threat to students, and they were therefore immune under the School

Code. Based on our examination of the second amended complaint in tandem with defendants’

motion to dismiss, however, it is readily apparent that defendants’ alleged lack of notice is not

“affirmative matter” as contemplated in section 2-619(a)(9).

¶ 56 The second amended complaint contained a number of well-pleaded facts that, for purposes

of section 2-619, defendants were deemed to have admitted. Reynolds, 2013 IL App (4th) 120139,

¶ 31. The complaint alleged that, prior to December 11, 2012, the School possessed written records

documenting that A.B.: (1) was physically abusive to other students, and (2) had verbally

threatened other students. It also alleged that, prior to the incident: (3) A.B. threatened to stab a

student with a Halo pencil, and (4) the parent of the student whom A.B. threatened to stab notified

Jordahl of the threat. The complaint further alleged that, immediately before plaintiff sustained

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his injury, Pakkala left her classroom unsupervised, which provided A.B. with an opportunity to

harm plaintiff.

¶ 57 Rather than accept these well-pleaded facts as true for purposes of the motion to dismiss,

defendants offered contrary evidence to deny these essential allegations. Specifically, Allegretti,

who is the current executive director of the school, averred that she had access to student records

that predated the incident but that, following her review, the school did not possess any records

regarding A.B. ever being physically abusive to another student or threatening to abuse any

student. Similarly, she denied that the School possessed documents reflecting any incident where

A.B. threatened to harm a student with a Halo pencil. She also averred that, per her review of the

documentation regarding the incident, the classroom was supervised because Beyers was present.

¶ 58 Jordahl, the executive director of the School at the time of the incident, likewise disputed

in her affidavit the complaint’s well-pleaded facts. She attested that she was unaware of any

incidents or reports by a parent that A.B. threatened to stab another student with a Halo pencil or

had threatened any student at the school, and she was similarly unaware of any reports that A.B.

had harmed a student, aside from plaintiff on the date of the incident. In other words, Jordahl

expressly disputed plaintiff’s well-pleaded allegation that a parent of a student whom A.B. had

threatened to stab with a Halo pencil had informed her of that threat. Jordahl similarly denied that

the classroom was unsupervised because Beyers was present.

¶ 59 Pakkala averred that she left the classroom in the care of two staff members, including

Beyers, such that the students “were never unsupervised *** including at the moment of the alleged

occurrence.” She also attested that she was unaware of prior incidents or reports by any parent

regarding A.B. harming or threatening another student, including with a Halo pencil.

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¶ 60 Defendants asserted that these affidavits constituted “affirmative matter” under section 2-

619(a)(9), and that plaintiff’s allegations that defendants possessed records indicating that A.B.

had verbally and physically abused students and that Jordahl was, prior to the incident, made aware

of such threats, “must be disregarded.”

¶ 61 It is well established that “affirmative matter” means “any defense other than a negation of

the essential allegations of the plaintiff’s cause of action.” Kedzie and 103rd Currency Exchange,

Inc. v. Hodge, 156 Ill, 2d 112, 116 (1993). See In re Estate of Schlenker, 209 Ill. 2d 456, 461

(“[t]he phrase ‘affirmative matter’ refers to something in the nature of a defense that negates the

cause of action completely or refutes crucial conclusions of law or conclusions of material fact

contained in or inferred from the complaint”). Affirmative matter does not include evidence upon

which defendant expects to contest a well-pleaded fact in the complaint. Reynolds, 2013 IL App

(4th) 120139 (2013). See Malanowski, 293 Ill. App. 3d at 723 (“Evidence which merely refutes a

well-pleaded fact in the complaint is not an ‘affirmative matter’ ”).

¶ 62 Here, rather than present “affirmative matter” under section 2-619(a)(9), defendants’

motion and the attached affidavits challenged plaintiff’s well-pleaded facts. In other words,

defendants acknowledged the well-pleaded facts in the complaint but presented affidavits that, in

essence, replied “not true.” This was improper, because “[s]ection 2-619(a)(9) does not authorize

the defendant to submit affidavits or evidentiary matter for the purpose of contesting the plaintiff’s

factual allegations and presenting its version of the facts.” Reynolds, 2013 IL App (4th) 120139,

¶ 34. Section 2-619(a)(9) of the Code “is not a proper vehicle to contest factual allegations; nor

does it authorize a fact-based ‘mini-trial’ on whether plaintiff can support his allegations.” Id.

¶ 42. It is also not “a shortcut to resolve factual issues about the veracity of plaintiff’s essential

allegations.” Id. ¶ 53. Contrary to defendants’ arguments in the court below, these affidavits do

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not constitute affirmative matter under section 2-619(a)(9). See Reynolds, 2013 IL App (4th)

120139, ¶ 53 (“When the defendant submits a ‘Not true’ motion, defendant’s burden of production

has not been met—there is no affirmative matter—and the burden does not shift to the plaintiff to

refute the defendant’s factual allegations contained in the motion.”).

¶ 63 The motion to dismiss and the affidavits attached to it make clear that defendants wished

to challenge the factual sufficiency of plaintiff’s well-pleaded allegations regarding notice and the

inference that they knew or should have known before December 11, 2012, that A.B. was

dangerous. The proper vehicle would have been a motion for summary judgment pursuant to

section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2020)). See Reynolds, 2013 IL App (4th)

120139, ¶ 54 (“[w]here the defendant uses the material to support its version of the facts, point out

the factual deficiencies in plaintiff’s case, or allege plaintiff cannot prove his case, it is apparent

the defendant is merely challenging the truthfulness of the plaintiff’s factual allegations and a fact-

based motion such as a section 2-1005 motion should be used”). Meticulous motion practice and

the Code dictate that motions should be properly designated. Id. ¶ 51.

¶ 64 The misdesignation of a motion is not always fatal to the rights of the moving party,

however. Andrews v. Marriott International, Inc., 2016 IL App (1st) 122731, ¶ 17. “When a

litigant files a section 2-619(a)(9) motion that is mistakenly based on affidavits or evidence that

do nothing more than negate the essential allegations of a complaint, courts have sometimes

construed those mischaracterized motions as motions for summary judgment, particularly when

the trial court and parties treat them as such.” Professional Solutions Insurance Co. v. Karuparthy,

2023 IL App (4th) 220409, ¶ 77 (citing Howle v. Aqua Illinois, Inc., 2012 IL App (4th) 120207,

¶¶ 31-39). Courts may do so because, although section 2-619(a)(9) is no substitute for a motion

for summary judgment, the motions “are similar in that a fact motion under section 2-619

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essentially amounts to a summary judgment procedure.” Malanowski, 293 Ill. App. 3d at 724. See

Kedzie & 103rd Currency Exchange, Inc.,156 Ill. 2d at 116. Courts look to the substance of the

motion, rather than its form or title, to determine which section of the Code applies. Malanowski,

293 Ill. App. 3d at 724. Reversal due to a misdesignation is required only where the nonmovant

has been prejudiced by the error. Id. (quoting Scott Wetzel Services v. Regard, 271 Ill. App. 3d

478, 481 (1995). “If the defendant improperly submits a motion pursuant to section 2-619 that

argues the plaintiff cannot prove his case, and the plaintiff is not prejudiced by the defendant’s

misdesignation, the motion may be treated as a summary judgment motion.” Reynolds, 2013 IL

App (4th) 120139, ¶ 54 (citing Malanowski, 293 Ill. App. 3d at 724).

¶ 65 Plaintiff has suffered no prejudice in this instance. As noted, defendants moved for

dismissal on the basis that the affidavits prepared by Allegretti, Jordahl, and Pakkala established a

lack of prior notice that A.B. posed a threat to other students and that, in the absence of notice,

their conduct was not willful and wanton. Defendants also argued that the classroom was not

unsupervised because Beyers was present. These factual issues were both narrow and specific,

and plaintiff was permitted to conduct adequate written and oral discovery to test defendants’

assertions before being required to respond to the motion. See Malanowski, 293 Ill. App. 3d at

724 (holding the plaintiff suffered no prejudice or unfair surprise by the misdesignation because

the issue was “narrow [and] clearly defined,” and plaintiff issued written discovery on the matters

raised in the affidavit attached to the motion). In April 2022, all three defendants answered

plaintiff’s interrogatories and plaintiff’s requests for production of documents—meaning plaintiff

received six written discovery responses in total. Plaintiff filed no motion contesting the adequacy

of any response. Then, in early November 2022, plaintiff deposed Allegretti, Jordahl, and Pakkala

regarding the substance of their affidavits (albeit subject to the limitations imposed by the court in

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its November 1, 2022, order). Plaintiff also deposed Beyers, who was the teacher aide that

defendants asserted was present in the classroom at the time of the incident. Plaintiff

acknowledges, in a separate argument in his appellate brief, that he “had an opportunity to

investigate the facts of the case, take depositions of parties and witnesses, and perform legal

research and investigation in preparation for drafting a Response to Defendants’ Motion to

Dismiss.” Plaintiff therefore had the benefit of extensive written and oral discovery before

responding to defendant’s motion.

¶ 66 Plaintiff ultimately filed his response on November 17, 2022, which was only days after

the depositions were completed. Plaintiff made no argument that defendants’ motion failed to

raise affirmative matter. Instead, his response bore the hallmarks of a response in opposition to a

motion for summary judgment. Plaintiff argued, among other points, that defendants’ motion was

unfounded because there were “material and genuine disputed questions of fact *** raised by

[defendants’] affidavits,” and he highlighted various aspects of the affidavits and testimony of

Allegretti, Jordahl, and Pakkala, in support. These are arguments that we would typically expect

to see in response to a motion for summary judgment. Plaintiff also attached counter-affidavits

executed by Forowycz, Hooke, and plaintiff, which he similarly argued “presented material and

genuine disputed questions of fact.” See Purtill v. Hess, 111 Ill. 2d 229, 241 (1986) (“facts

contained in an affidavit in support of a motion for summary judgment which are not contradicted

by counteraffidavit are admitted and must be taken as true for purposes of the motion”). Plaintiff

ostensibly attached these counter-affidavits so that the assertions in the affidavits supporting

defendants’ motion would not be deemed admitted and accepted as true.

¶ 67 As noted, the circuit court dismissed plaintiff’s second amended complaint and emphasized

that the affidavits attached to defendants’ motion “establish[ed] that the school did not have any

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notice, actual prior notice that A.B. posed a threat to the plaintiff or to anyone else,” as well as that

“the classroom was supervised *** [because] there was an aide and a Spanish teacher who were

present.” In the court’s view, these affidavits were “unrefuted,” and it would have so ruled even

if it had not stricken portions of plaintiff’s counter-affidavits. These determinations are

appropriate in the context of rulings involving motions for summary judgment.

¶ 68 Plaintiff’s arguments on appeal largely mirror those he made before the trial court. He

contends that he “presented material and genuine disputed questions of fact by way of the affidavits

of Ann Forowycz, Shelly Hooke, and plaintiff, as well as by way of the deposition testimony of

Defendant Jordahl, Defendant Pakkala, Hope Allegretti, Barbara Beyers, and Ann Forowycz.” He

maintains that “[t]his elicited evidence created a material and genuine disputed question of fact on

the issues of this case,” and he even acknowledges that, “[a]s with a motion for summary judgment,

a motion to dismiss requires the same analysis of factual questions by the trier of fact regarding

the information in defendants’ possession.”

¶ 69 In light of the above, we find no prejudice in the misdesignation of defendants’ motion,

and we construe it as a motion for summary judgment, which is consistent with the substantive

arguments raised by the parties in the court below and on appeal, as well as with the circuit court’s

analysis that preceded the dismissal of plaintiff’s second amended complaint. Professional

Solutions Insurance Co., 2023 IL App (4th) 220409, ¶ 77; Reynolds, 2013 IL App (4th) 120139,

¶ 53; Malanowski, 293 Ill. App. 3d at 724; Scott Wetzel Services, 271 Ill. App. 3d at 481.

Therefore, we shall construe defendants’ motion as a motion for summary judgment.

¶ 70 C. Summary Judgment Considered

¶ 71 Section 2-1005 of the Code provides for summary judgment when the pleadings,

depositions, and admissions on file, together with the affidavits, show that there is no genuine issue

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as to any material fact and that the moving party is entitled to judgment as a matter of law.

Steadfast Insurance Co. v. Caremark Rx, Inc., 359 Ill. App. 3d 749, 755 (2005). In determining

whether a genuine issue of material fact exists, the trial court must construe the pleadings and

evidentiary material in the record strictly against the moving party and liberally in favor of the

nonmoving party. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). The court “may not weigh

evidence set forth in opposing affidavits, thereby denying a right to a jury trial.” In re Estate of

Ciesiolkiewicz, 243 Ill. App. 3d 506, 510 (1993). The plaintiff is not required to prove his case at

the summary judgment stage, but rather, must bring forth facts showing that he is entitled to

judgment. Hammer v. Barth, 2016 IL App (1st) 143066 ¶ 14.

¶ 72 Once a defendant has met his initial burden of production by affirmatively showing that an

element of plaintiff’s case must be resolved in defendants favor, the burden of production shifts to

the plaintiff to demonstrate the existence of an unresolved issue of material fact that precludes

summary judgment. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). The plaintiff must then

produce counter-affidavits or other material to contradict the movant’s materials which presents a

factual basis that arguably entitles plaintiff to judgment, and thus showing the existence of a

genuine issue of material fact. Cox v. U.S. Fitness, LLC, 2013 IL App (1st) 122442, ¶ 27.

¶ 73 Summary judgment is a drastic means of resolving litigation and should be granted only

when the right of the moving party is clear and free from doubt. Buchaklian v. Lake County Family

Young Men’s Christian Ass’n, 314 Ill. App. 3d 195, 199 (2000). We review de novo a trial court’s

decision to enter summary judgment, meaning we give no deference to the trial court and consider

anew the pleadings, affidavits, depositions, admissions, and exhibits on file to determine whether

the trial court’s decision was correct. Jackson v. Graham, 323 Ill. App. 3d 766, 779 (2001).

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¶ 74 Plaintiff’s second amended complaint, which is the subject of this appeal, is comprised of

four willful and wanton negligence counts. It alleges willful and wanton negligence against the

school, Jordahl, Pakkala, and the school under a theory of respondeat superior based upon the

conduct of Pakkala and Jordahl. Plaintiff’s injury occurred when A.B. paired a pencil with a rubber

band, which he used to propel the pencil toward plaintiff. The second amended complaint alleges

that defendants knew or should have known that A.B. posed a threat to other students because the

School possessed, prior to plaintiff’s injury, written records documenting that A.B. had verbally

threatened and physically abused other students at the school, that A.B. had threatened to stab a

student with a Halo pencil, and that the mother of the student alleged to have been threatened had

informed Jordahl of that threat. Thus, the lynchpin of the complaint is that A.B. posed a known

danger that defendants failed to protect him from. The trial court entered what amounts to a

summary judgment order in favor of defendants on the basis that there was no genuine issue of

material fact that defendants lacked notice prior to plaintiff’s injury that A.B. posed a threat to

other students and, in the absence of such notice, their conduct was not willful and wanton, and

they were thus entitled to immunity under section 24-24 of the School Code.

¶ 75 Illinois law does not recognize willful and wanton conduct as an independent tort, but

rather, it is regarded as an aggravated form of negligence. Mack Industries, Ltd. v. Village of

Dolton, 2015 IL App (1st) 133620, ¶ 35; Jane Doe-3 v. McLean County Unit District No. 5 Board

of Directors, 2012 IL 112479, ¶ 19. To show willful and wanton negligence in the supervision of

school children, the plaintiff must “show that the teacher or school was aware or should have

known that the absence of supervision posed a high probability of serious harm or an unreasonable

risk of harm.” Jackson v. Chicago Board of Education, 192 Ill. App. 3d 1093, 1100 (1989). The

general allegation that a teacher or school should have known that the plaintiff would be harmed

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absent adult supervision is insufficient. Id. For an act to constitute willful and wanton misconduct,

it requires more than just inadvertence or brief lapses in attention, which might be considered

ordinary negligence. Oelze v. Score Sports Venture, LLC, 401 Ill. App. 3d 110, 122 (2010). “[A]

teacher’s mere act of leaving children unsupervised will not be sufficient to establish willful and

wanton misconduct.” Jackson, 192 Ill. App. 3d at 1100. Rather, “[t]he party doing the wanton act

or failing to act ‘must be conscious of his conduct, and, though having no intent to injure, must be

conscious, from his knowledge of the surrounding circumstances and existing conditions, that his

conduct will naturally and probably result in injury.’ ” Id. at 122-23 (quoting Bartolucci v. Falleti,

382 Ill. 168, 174 (1943). Whether specific acts amount to willful and wanton misconduct is

generally a question of fact reserved for the jury to decide (id. at 123), but a court may determine

that issue as a matter of law if the evidence, when viewed in the light most favorable to the

nonmoving party, overwhelmingly favors the movant and no contrary determination based on the

evidence could stand (Wade v. City of Chicago, 364 Ill. App. 3d 773, 781 (2006)).

¶ 76 Based on our review of the record, and construing the pleadings, affidavits, and deposition

testimony in the light most favorable to plaintiff, as we must, we agree that there is no genuine

issue of material fact that defendants lacked notice of, and had no reason to anticipate, A.B.’s

potential to harm other students. Defendants’ motion was supported by three affidavits, namely

from Allegretti, Jordahl, and Pakkala. Allegretti, the current executive director of the School, is

the only affiant who is presently affiliated with the school. Pakkala and Jordahl are no longer

employed by the school and therefore lacked access to the school’s records when they prepared

their affidavits.

¶ 77 Allegretti attested that she had access to student records that predated the December 11,

2012, incident, including “records that exist regarding A.B.” She reviewed A.B.’s student records,

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but her search yielded no reports prior to the incident that A.B. had physically abused another

student or had threatened to harm any student. Similarly, she averred that the School did not

possess records concerning an incident where A.B. threatened to harm another student with a Halo

pencil. She also attested that the School’s documentation related to the incident established that

Beyers was in the classroom when plaintiff was injured.

¶ 78 Jordahl attested that she was the executive director of the school when the incident

occurred, that she was unaware of any reports prior to plaintiff’s injury that A.B. had either

physically harmed or verbally threatened harm upon any student at the school, that no parent had

reported to her that A.B. had threatened any fellow student, and that Beyers was present in the

classroom at the time of the incident.

¶ 79 Pakkala attested that she was the teacher assigned to plaintiff’s classroom. She was

unaware of any reports or incidents prior to the incident that A.B. had harmed or threatened to

harm any student at the school, and she was unaware of any incidents or reports by any parent that

A.B. had threatened to harm any student with a Halo pencil. She further averred that when she

stepped out of the classroom immediately before plaintiff was injured, Beyers and a Spanish

teacher remained in the room.

¶ 80 Plaintiff argues on appeal that these affidavits are “of no consequence” and “should be

given no weight.” He emphasizes that Allegretti acknowledged during her deposition that her

statements regarding a lack of notice of A.B.’s dangerousness was based on records “that exist”

and not on records that perhaps existed in 2012. He also asserts that neither Allegretti nor Jordahl

have personal knowledge of the circumstances surrounding the incident, including the level of

classroom supervision, because neither individual was in the classroom when plaintiff was injured.

Rather, Allegretti’s affidavit was based on her review of A.B.’s student file and documentation

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related to the incident, and Jordahl’s affidavit was based on her memory of the event, which had

occurred nearly ten years prior, but she did not investigate whether there were any reports

concerning A.B.’s dangerousness prior to the incident that she may have forgotten. In a similar

vein, plaintiff asserts that the statements in Pakkala’s affidavit pertaining to A.B.’s prior incidents

of threats or violence were “based on her memory [but] *** she did not go back to review any

documentation prior to making that statement.”

¶ 81 Plaintiff’s argument that these affidavits are “of no consequence and should be given no

weight” is incongruent. Allegretti’s affidavit plainly was not offered as a first-hand account of the

incident, but rather, was based on her personal knowledge of the records maintained by the School,

which she had access to as the school’s executive director. The affidavit was offered to contradict

plaintiff’s allegations that the school possessed records documenting that, prior to the incident,

A.B. had verbally threatened and physically abused other students, including an incident where

A.B. allegedly threatened another student with a Halo pencil. In light of the fact that the parties,

and indeed the circuit court, effectively construed defendants’ motion to dismiss as a motion for

summary judgment, the use of Allegretti’s affidavit to challenge plaintiff’s well-pleaded

allegations was proper, as discussed above. See Reynolds, 2013 IL App (4th) 120139, ¶ 54 (stating

that a fact-based motion, such as a motion for summary judgment, may be used to contest the

truthfulness of a complaint’s allegations). The same is true for the affidavits offered by Jordahl

and Pakkala. Plaintiff insinuates evidence spoilation and suggests that Allegretti’s affidavit should

not be believed because, during her deposition, she confirmed that her affidavit was based on her

review of School records “ ‘that exist’ currently” rather than records that perhaps existed “at the

time of the incident 10 years ago.” The argument is entirely speculative and is insufficient to

demonstrate the existence of a factual dispute, whether material or otherwise.

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¶ 82 Plaintiff’s grievances regarding the affidavits prepared by Jordahl and Pakkala are similarly

meritless. Jordahl denied knowledge of any incidents or reports by any parent that A.B. had

threatened to stab a student with a Halo pencil, and she lacked knowledge that A.B. had threatened

to harm or had actually harmed any student other than plaintiff. Thus, her affidavit controverts

plaintiff’s claims that, prior to the incident, a parent had informed her that A.B. threatened their

child with a Halo pencil and that the School had received reports that A.B. was a danger to other

students. Likewise, Pakkala attested that she lacked knowledge of prior incidents or reports by a

parent that A.B. had harmed or threatened to harm a student, such as with a Halo pencil. That

Jordahl and Pakkala prepared their affidavits based on their memory and without the aid of school

records that they no longer had access to as former employees is hardly surprising given that

plaintiff was eleven years old at the time of the incident, but he waited until four days before his

twentieth birthday to file his initial complaint. Plaintiff offers no suggestion as to how these

affiants could have reviewed school records that either do not exist or they lack access to in

preparation of their affidavits.

¶ 83 We would also be remiss if we did not point out that plaintiff did not move to strike, either

in whole or in part, any of the affidavits attached to defendants’ motion in the trial court. It

therefore stands to reason that plaintiff was satisfied that they conformed with the technical

requirements set forth in Supreme Court Rule 191(a), which governs the requirements of affidavits

in support of motions for summary judgment under section 2-1005 of the Code and motions for

involuntary dismissal under section 2-619 of the Code. See McBride v. Commercial Bank of

Champaign, 101 Ill. App. 3d 760, 763 (1981) (holding plaintiff forfeited his claims that

defendants’ affidavits did not conform to Rule 191(a) by failing to bring the court’s attention to

his motion to strike and failing to press the court for a ruling on the motion). See also Cordeck

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Sales, Inc. v. Construction Systems, Inc., 382 Ill. App. 3d 334, 383 (“it is the burden of the party

objecting to the sufficiency of a Rule 191(a) affidavit to challenge the affidavit in the trial court

and obtain a ruling thereon”). Plaintiff cannot now claim, on appeal, that the trial court erred in

considering these affidavits when he did not, either in a separate motion to strike or in his response

in opposition to defendants’ motion to dismiss, request that the court strike any portion of them.

¶ 84 Plaintiff asserts in his briefs that the deposition testimony of defendants’ affiants, as well

as Beyers, the teacher aide who was present in the classroom when plaintiff was injured,

establishes a genuine issue of material fact. The assertion, however, is a naked conclusion that is

bereft of any meaningful argument or analysis. Plaintiff provides, in a serial fashion, a summary

of each individual’s deposition testimony and then concludes that it shows the existence of a

genuine issue of material fact.

¶ 85 Plaintiff highlights the following testimony in support: (1) Allegretti searched the e-mail

accounts of Jordahl and Pakkala for any communications with Forowycz, but she did not find any.

Allegretti’s search for records regarding any threats or physical violence from A.B. would not have

turned up verbal communications, and she did not know whether such verbal communications

regarding A.B. ever took place; (2) Jordahl testified that she learned of A.B.’s drawing, which she

described as “a projectile of some sort,” in October 2012. She discussed the drawing with A.B.’s

mother, and no other actions were taken. She was not advised prior to December 11, 2012, that

A.B. had physically threatened or had actually harmed other students; (3) Pakkala testified that,

before plaintiff was injured, she had a meeting with A.B.’s mother to discuss A.B.’s drawing. Prior

to the incident, Forowycz did not voice any concerns to Pakkala about A.B. threatening her son.

Rather, Forowycz’ concerns were limited to how she managed her classroom, in that Forowycz

“wanted it to be more like public school and that we should have more parties and certain specific

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lessons.” Pakkala could not recall any instance where Forowycz complained about Pakkala’s

control over the classroom; and (4) Beyers testified that she was a teacher’s assistant assigned to

Pakkala’s classroom. At the time of the incident, Beyers was seated on a stool inside the door to

the classroom as she had been instructed to do. She could see plaintiff and A.B., but their backs

were facing her. She did not observe the incident and did not know how it happened. After

learning plaintiff was injured, Beyers escorted him to the school nurse. Beyers testified that

Pakkala was not in the classroom when plaintiff was injured, and she could not recall whether a

Spanish teacher was also in the room.

¶ 86 Contrary to plaintiff’s unsubstantiated and conclusory position, none of the above

testimony, when viewed in the light most favorable to plaintiff, raises a genuine issue of material

fact that defendants were on notice prior to December 11, 2012, that defendants knew or should

have known that A.B. posed a danger to other students. Plaintiff fails to even identify, in his

summary of the deposition testimony provided by Allegretti and Beyers, what the purported

disputed issues of fact are. The only specificity offered by plaintiff concerns Jordahl’s testimony,

which he points to as showing the existence of a genuine issue of material fact regarding “the

information in [d]efendants’ possession prior to the incident.” He emphasizes Jordahl’s testimony

that: (1) Pakkala told her in October 2012 about Forowycz’ concerns regarding a drawing made

by A.B.; (2) Forowycz may have told Pakkala, prior to the incident, about A.B.’s threats against

her son, but she did not know for sure; (3) she believed Forowycz told Pakkala about her concerns

regarding A.B.’s behavior prior to the incident; and (4) Pakkala exchanged e-mails with Forowycz

in response to Forowycz’ concerns. Plaintiff apparently relies on Jordahl’s understanding of

communications between Pakkala and Forowycz to create a genuine issue of material fact, but the

argument is misguided because Jordahl’s testimony in this regard was based on a game of

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telephone played nearly ten years before her deposition. “It is axiomatic that mere guesswork or

speculation is insufficient to create a genuine issue of material fact to survive a motion for

summary judgment.” Kasper v. McGill Management, Inc., 2019 IL App (1st) 181204, ¶ 29. In

any event, Jordahl’s hunches were not borne out by the testimony offered by either Forowycz or

Pakkala.

¶ 87 Plaintiff alleged that defendants knew that A.B. posed a threat of physical harm to students

because, among other reasons, a parent notified Jordahl prior to December 11, 2012, that A.B. had

threatened to stab their child with a Halo pencil. Although neither the concerned parent nor the

student alleged to have been threatened are identified in plaintiff’s second amended complaint,

plaintiff’s motion practice and his answers to defendants’ discovery requests reveal that the parent

is Forowycz and the child that A.B. allegedly threatened to stab is Forowycz’ son. Critically,

Forowycz did not aver5 or testify that she reported A.B. as a physical threat prior to December 11,

2012. Rather, her affidavit and corresponding deposition testimony establish only that she

discussed A.B.’s “inappropriate drawings” with Jordahl and Pakkala, and she voiced concerns to

the School regarding Pakkala’s management of her classroom, as well as A.B.’s language and

drawings.

¶ 88 During her deposition, Forowycz was questioned at length regarding plaintiff’s Rule

213(f)(1) disclosure, which identified her as a lay witness and detailed her anticipated trial

5
One of the issues plaintiff identifies on appeal is whether the circuit court erred in striking

portions of the counter-affidavits provided by Forowycz and Hooke. We need not evaluate this

claim, however, because even if the stricken material is considered, the counter-affidavits do not

reveal a genuine issue of material fact.

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testimony. Forowycz testified at her deposition that although she “communicated many times with

Ann Jordahl and Debra Pakkala about [her] concerns in the classroom, *** [she] did not say that

[she] would testify about A.B.’s behavior before December 11th.” She continued that her “e-mail

was the day after the incident and [she did not] have any recollection *** that [she] did

communicate about A.B. before [her] email.” She recalled discussing “numerous concerns” with

Pakkala between October and December 2012, but she lacked “any recollection about the [Halo]

pencil before that was stated in the e-mail.” She recalled having a conference with Pakkala prior

to December 2012 where A.B.’s drawing was discussed, but she never actually saw the drawing

and she “could not recall specific other conversations or emails.”

¶ 89 Forowycz also testified that she could not say that she reported to any School employee,

prior to December 11, 2012, that A.B was a physical threat to any student, nor could she state that

she “complained about A.B. being a physical threat to [her] son in regard to a Halo pencil prior to

the incident involving [plaintiff].” Other than her “conference discussions with Miss Pakkala

regarding A.B.’s drawings,” Forowycz could not recall any other specific conversations or e-mails

regarding A.B. prior to the incident. She also could not state why she used the word “reiterate” in

her December 12, 2012, e-mail. She could only recall “generalities of the situation,” such as that

she expressed numerous concerns, parents were “unhappy,” “talking to each other,” and “sharing

information,” and that “parents were saying that [A.B.] was drawing inappropriate pictures and

made the kids feel uncomfortable,” and it was “kind of a known thing.” Forowycz also conceded

during her testimony that, in May 2022, she sent a text message to Hooke stating:

“I cannot go on legal record stating what happened because I honestly do not

remember. We did not remember the name of the boy. [Forowycz’ son] does not

remember the situation except that [plaintiff] was injured. If it was closer to the happening,

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that may be different. *** I’m uncertain why ten years later I am being asked about the

situation.”

¶ 90 These statements clearly do not suggest that defendants were on notice of the alleged

danger that A.B. posed to other students prior to the incident and, indeed, they eviscerate plaintiff’s

case because it controverts plaintiff’s allegations that, prior to plaintiff’s injury, A.B. threatened to

stab Forowycz’ son with a Halo pencil and that Forowycz notified Jordahl of the threat.

¶ 91 The affidavit prepared by plaintiff’s mother, Hooke, likewise does not establish a genuine

issue of material fact regarding “what information Defendant School, Jordahl, and Pakkala had in

their possession prior to this incident,” as plaintiff argues. Plaintiff asserts that Hooke’s affidavit

stating that she observed a folder containing the “around and around” communications between

Forowycz and the School would have created a material and genuine disputed question of fact

whether defendants knew or should have known that A.B. was dangerous. Hooke’s affidavit does

not raise a question of material fact, but instead raises “mere guesswork or speculation,” which is

insufficient to survive summary judgment. Kasper, 2019 IL App (1st) 181204, ¶ 29.

¶ 92 Section 24-24 of the School Code (105 ILCS 5/24-24 (West 2020)) confers on teachers

and other educational personnel in loco parentis status in all matters relating to the supervision of

students in school activities. Henrich v. Libertyville High School, 186 Ill. 2d 381, 388-89 (1998).

It provides, in pertinent part, that:

“[T]eachers, other certified educational employees, and any other person, whether

or not a certificated employee, providing a related service for or with respect to a student

shall maintain discipline in the schools ***. In all matters relating to the discipline in and

conduct of the schools and the school children, they stand in the relation of parents and

guardians to the pupils. This relationship shall extend to all activities connected with the

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school program *** and may be exercised at any time for the safety and supervision of the

pupils in the absence of their parents or guardians.” 105 ILCS 5/24-24 (West 2020).

In loco parentis status is conferred on teachers, as well as certified and non-certified school

personnel, and it applies in both disciplinary and non-disciplinary matters. Gallarneau v. Calvary

Chapel of Lake Villa, Inc., 2013 IL App (2d) 120218, ¶ 7. This section has been interpreted to

“immunize ordinary negligence, but not to immunize willful and wanton misconduct.” Henrich,

186 Ill. 2d at 388-89. To impose liability against teachers or other educational employees, a

plaintiff must prove willful and wanton misconduct. Kobylanski v. Chicago Board of Education,

63 Ill. 2d 165, 167 (1976). “Since a parent is not liable for injuries to his child absent willful and

wanton misconduct, section 24-24 makes teachers immune from liability for ordinary negligence.”

Courson v. Danville School District No. 118, 301 Ill. App. 3d 752, 755 (1998). These principles

apply to private schools. Merrill v. Catholic Bishop of Chicago, 9 Ill. App. 3d 910, 911 (1972).

¶ 93 Simply put, defendants established through the affidavits attached to their motion that they

lacked actual knowledge, as well as any reason to anticipate, that A.B. was dangerous or would

harm any student, including plaintiff. Neither the counter-affidavits tendered by plaintiff nor any

of the deposition testimony, including that of Forowycz and Hooke, controvert the affidavits of

Allegretti, Jordahl, and Pakkala. Without such knowledge, plaintiff’s claims that defendants acted

with willful disregard for plaintiff’s safety simply fails.

¶ 94 Moreover, the affidavits attached to defendants’ motion and the deposition testimony

establishes that the classroom was not unsupervised. Beyers was present in the classroom.

Although she did not witness the pencil sail toward and strike plaintiff, she had a direct line of

sight on plaintiff and A.B. immediately before plaintiff was injured. Arguendo, even if the

classroom was not supervised by any school staff member, that fact, alone, is insufficient to

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establish willful and wanton negligence. “[A] teacher’s mere act of leaving children unsupervised

will not be sufficient to establish willful and wanton misconduct,” even if the children are

unsupervised for 30 minutes. Jackson, 192 Ill. App. 3d at 1100. See Pomrehn v. Crete-Monee

High School District, 101 Ill. App. 3d 331, 335 (1981) (high school members of the girls’ varsity

softball team unsupervised for 15 minutes); and Albers v. Community Consolidated No. 204

School, 155 Ill. App. 3d 1083, 1086 (1987) (classroom unsupervised for five to ten minutes).

Indeed, “[a] teacher cannot be required to watch the students at all times while in school,” and

school districts and teachers need not provide “constant surveillance of the children.” Mancha v.

Field Museum of Natural History, 5 Ill. App. 3d 699, 702 (1972). Defendants therefore fall within

the statutory immunity provisions of section 24-24 of the School Code, and the circuit court’s

order effectively granting summary judgment in their favor was proper.

¶ 95 In a related argument, plaintiff focuses on count I, which alleged willful and wanton

negligence against the school, and argues that the circuit court erred in dismissing this count

because the “School Code does not apply to schools, it only applies to teachers.” He relies on

Courson, which he describes as holding that “only teachers, and not schools, stand in the relation

of parents to pupils under the *** School Code.” In his view, “the logical corollary from Courson

is that, because the *** School Code does not apply to direct claims against a school, direct claims

for negligence and willful and wanton conduct against a school may both withstand an immunity

challenge brought on the basis of the *** School Code and the case law interpreting it.”

¶ 96 Plaintiff interprets Courson too broadly. Contrary to his blanket assertion that the School

Code applies to teachers but not to schools, it is well settled that the educational institution, itself,

will vicariously benefit from such immunity “if the cause of action is predicated on the ordinary

negligence of an employee who has the statutory immunity.” Gallarneau, 2013 IL App (2d)

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120218, ¶ 7. See Sidwell v. Griggsville Community Unit School District No. 4, 146 Ill. 2d 467,

472-73 (1992) (“[a]s in any employment situation, school districts vicariously benefit from a

teacher’s immunity when a cause of action against the school district is predicated on the

negligence of a teacher”). Plaintiff’s broad assertion that the School Code does not apply to

schools is simply inaccurate. Courson, itself, recognized that the School Code confers immunity

to a school when the complaint alleges that the school is vicariously liable through the acts of its

staff. Courson, 301 Ill. App. 3d at 755. As our supreme court has made clear, “one must examine

the allegations of the complaint to determine whether the immunity under section[] 24-24 ***

applies.” Sidwell, 146 Ill. 2d at 473. This is so because, “[w]hen the complaint alleges the

independent negligence of the school district rather than liability through the acts of a teacher, the

defendant school district is not entitled to vicarious immunity under section[ ] 24-24.” Id.

¶ 97 Here, a close examination of the allegations in count I of plaintiff’s second amended

complaint leads to one inescapable conclusion—All of the allegations concern individual actions

taken by educational staff tasked with supervising the school and the students, as opposed to

actions taken by the school, as an entity. Plaintiff identified several acts in this count that he argued

amounted to willful and wanton negligence by the school. Specifically, he alleged that after

“learning of the threat [A.B.] posed to other students,” the School failed to take disciplinary action

against A.B., failed to “suspend and/or expel” A.B., and failed to speak with his parents. Plaintiff

also alleged that the school engaged in willful and wanton negligence when it permitted A.B. to

remain in Pakkala’s classroom unsupervised, and when it failed to warn teachers, students, and the

students’ parents that A.B. posed a threat to other students.

¶ 98 The record confirms that all of these actions are under the purview of the executive director

of the school. Jordahl testified that she was the school’s executive director when plaintiff was

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injured. In that role, she was responsible for “overseeing the entire school, staffing, recruiting

staff, recruiting students, [and] overseeing everything that happened in the school.” She was also

responsible for addressing student disciplinary concerns, and “communicating with the teachers

and other staff,” as well as with the “parents of students,” regarding student disciplinary concerns.

Plaintiff, in count I, plainly does not allege the independent negligence of the school, but rather,

he alleges vicarious liability based on Jordahl’s alleged acts or omissions as the executive director.

The school is therefore entitled to vicarious immunity vis-à-vis the immunity afforded to Jordahl

under the School Code, and the entry of summary judgment on count I was proper.

¶ 99 D. Denial of Leave to file a Third Amended Complaint

¶ 100 The final issue raised on appeal is whether the circuit court erred in denying plaintiff leave

to file a third amended complaint. In Illinois, it is well established that courts are encouraged “to

freely and liberally allow the amendment of pleadings.” Lee v. Chicago Transit Authority, 152 Ill.

2d 431, 467 (1992). The policy favoring liberal amendment of pleadings is reflected in section

616(a) of the Code (735 ILCS 5/2-616(a) (West 2020)), which provides that amendments to

pleadings may be allowed at any time before final judgment “on just and reasonable terms.”

¶ 101 Despite this liberal policy, the right of a party to amend its pleadings is not absolute and

unlimited. Lee, 152 Ill. 2d at 467; Steenes v. MAC Property Management, LLC, 2014 IL App (1st)

120719, ¶ 38. A trial court has broad discretion to grant or deny a motion to amend, and its decision

will not be reversed absent an abuse of discretion. Lee, 152 Ill. 2d at 467. In determining whether

error occurred, under the abuse-of-discretion standard, the relevant question is whether any

reasonable person could have taken the position adopted by the trial court. In re Marriage of Patel

& Sines-Patel, 2013 IL App (1st) 112571, ¶ 95.

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¶ 102 In exercising its discretion in determining whether to allow an amended pleading, the

circuit court should consider the four factors that our supreme court has identified: (1) whether the

proposed amendment would cure the defective pleading, (2) whether the other party would be

prejudiced or surprised by the proposed amendment, (3) whether the proposed amendment is

timely,; and (4) whether previous opportunities to amend could be identified. Loyola Academy,

146 Ill. 2d at 273. If the amendment would not have cured a defect in the pleading, the other

Loyola Academy factors are superfluous. Watkins v. Office of State Appellate Defender, 2012 IL

App (1st) 111756, ¶ 34.

¶ 103 As noted, plaintiff moved to file a third amended complaint seeking to accomplish two

purposes: to (1) add a count pursuant to the Family Expense Act alleging that plaintiff had a right

to recover his medical bills incurred as a minor pursuant to an assignment from the Hookes or, in

the alternative, add the Hookes as party-plaintiffs so that they could allege a right to recover, under

the Family Expense Act, medical bills paid on plaintiff’s behalf when he was a minor; and (2) “add

back” the ordinary negligence count against the school that plaintiff opted to withdraw

approximately one year earlier.

¶ 104 Here, plaintiff’s proposed third amended complaint would not have cured a defect in the

pleading. Significantly, plaintiff did not allege any new or additional facts of significance in the

proposed third amended complaint that had any bearing on whether defendants knew or should

have known prior to plaintiff’s injury that A.B. posed a threat to other students. Rather, plaintiff

sought to add new causes of action arising out of largely the same facts as alleged in the second

amended complaint. Defendants challenged plaintiff’s factual allegations relating to notice by

way of the affidavits attached to their motion to dismiss, and those affidavits remained unrebutted

even after plaintiff conducted discovery and presented counter-affidavits.

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¶ 105 With respect to the proposed additional causes of action under the Family Expense Act

based on an assignment of claims, any recovery of funds that were expended to treat plaintiff’s

injury “would merely be as an element of damage in the minor’s tort action against the one causing

the injury which necessitated his subsequent medical treatment.” Cullotta v. Cullotta, 287 Ill. App.

3d 967, 975 (1997). Therefore, because we have determined that the circuit court properly entered

summary judgment in defendants’ favor, and because the proposed third amended complaint added

no new facts that would have impacted either the circuit court’s analysis or our own, plaintiff’s

proposed third amended complaint would not have cured any defect. A parent’s claims under the

Family Expenses Act “is derivative in nature, as they arise out of the injury” to their child. Id. As

a result, if a defendant is not liable in tort for injuring a child, the defendant cannot be held liable

by that child’s parent for the payment of medical expenses to treat the child’s injury. Id.

¶ 106 Concerning plaintiff’s request to “add back” the ordinary negligence count against the

school that plaintiff voluntarily withdrew between his initial complaint and his first amended

complaint, that addition, too, would not have cured any defect. Because the school, itself, benefits

from Jordahl’s vicarious immunity for ordinary negligence under section 24-24 of the School

Code, plaintiff’s request to add a claim for ordinary negligence against the school necessarily

would have failed for the same reason that plaintiff withdrew that claim in the first place. The

circuit court therefore did not abuse its discretion in disallowing any further amendments.

¶ 107 III. CONCLUSION

¶ 108 For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 109 Affirmed.

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