Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the Civil cases Jane Doe-3 v. McLean County Unit District No. 5 Board of Directors and Santiago v. E.W. Bliss Company.

Jane Doe-3 v. McLean County Unit District No. 5 Board of Directors

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

In a splintered decision, the Illinois Supreme Court has ruled that a school's alleged misstatements concerning a former teacher's history on an employment verification form sent to another school created a duty supporting a tort claim. The plaintiffs, a first grader and a second grader, allegedly were sexually abused by that teacher, who had been disciplined for the same type of misconduct during his previous job. The teacher had worked at a McLean County elementary school and was disciplined for sexual misconduct and removed from the classroom before the end of the 2004-05 school year. As part of the severance agreement with the teacher, the McLean County defendants -- its school board and individual administrators -- allegedly concealed the teacher's sexual abuse of students. The plaintiffs accused the McLean County defendants of "passing" the teacher to the unknowing Urbana school district.

 Following dismissal of the cause of action by the trial court and reversal by the appellate court, the supreme court reviewed the case. Four justices expressed their views, addressing issues including common law tort duty, fraudulent concealment, the Local Governmental and Govermental Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq. (West 2010), the "Public Duty Rule," and the Abused and Neglected Child Reporting Act, 325 ILCS 5/1 et seq. (West 2010).

 Reasoning that the state's strong public policy of protecting children bolstered the court's holding, Justice Burke, joined by Chief Justice Kilbride and Justice Thomas, delivered the judgment of the court and found that the defendants' misstatement  -- that the teacher had worked for the McLean school district for the entire 2004-05 year -- created a risk of harm to the Urbana children and was sufficient to plead willful and wanton conduct. Justice Burke also found the Public Duty Rule, which provides that government officials owe no duty to protect individual citizens -- inapplicable to the plaintiffs' allegations. In a special concurrence, Justice Freeman commented that, while not having to shout out all that it knows, an employer should use reasonable care in providing information to others regarding former employees.

Justice Garman concurred that the defendants had a duty, but dissented from the majority's treatment of the Tort Immunity Act. She found that the issue was not properly placed before the court; if it had been, Justice Garman may have found that the conduct was fully immunized under the Act, given the absence of an express willful and wanton provision in an arguably applicable section and the blanket immunity provided for the provision of information.

 Joined by Justice Theis, Justice Karmeier dissented. He found that the majority should have considered the Abused and Neglected Child Reporting Act rather than finding the Act waived and creating, in the dissent's view, a new cause of action for "passing." Like Justice Freeman, Justice Karmeier also questioned whether the public duty rule is dead.

Santiago v. E.W. Bliss Company

By Alyssa M. Reiter, Williams Montgomery & John Ltd.

What happens when a plaintiff intentionally files a complaint in a false name and does not amend the complaint to use his actual name until the statute of limitations has expired?

The defendants moved to dismiss as a sanction for plaintiff intentionally filing a complaint using a fictitious name without leave of court.  The defendants also argued that the original complaint was a nullity.  The later amendment, after the statute of limitations, thus could not “relate back” and the matter was time-barred.  

The circuit court denied the motions to dismiss but certified that order, pursuant to Supreme Court Rule 308, to resolve the issues above.  The appellate court held: (1) the circuit court has discretion to dismiss as a sanction, and (2) the circuit court must dismiss because the original complaint was a nullity and, after the limitations period expires, the amended complaint cannot relate back.

On review, the Supreme Court reversed in part and remanded.  It held that the circuit court has discretion to dismiss with prejudice under these circumstances.  However, it held that dismissal is justified only when “(1) there is a clear record of willful conduct showing deliberate and continuing disregard for the court’s authority; and (2) a finding that lesser sanctions are inadequate to remedy both the harm to the judiciary and the prejudice to the opposing party.”  It disagreed with the appellate court as to the nullity issue.  It held that the use of a fictitious name, without court approval, does not render the original complaint a nullity, per se, and that an amended complaint correcting the name may relate back to the initial filing.

A special concurrence by Justice Karmeier has an interesting discussion on the distinction between a “fictitious person or party” and a “fictitious name.”  His concurrence, a special concurrence by Justice Burke, and a passionate dissent by Justice Thomas (joined by Justice Garman) also discussed the interplay of “misnomer” under Code of Civil Procedure section 2-401.