Hearing Date: No hearing scheduled

Location: <<CourtRoomNumber>>
Judge: Calendar, H
FILED
3/15/2024 11:48 AM
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ
CIRCUIT CLERK
COUNTY DEPARTMENT, LAW DIVISION
COOK COUNTY, IL
FILED DATE: 3/15/2024 11:48 AM 2022L003763

2022L003763
ROBERT BRONSTEIN, individually, and as ) Calendar, H
Independent Administrator of the Estate of Nathan
) 26840579
Bronstein, a minor; Deceased; ) Case No. 2022 L 003763
ROSELLENE BRONSTEIN, )
individually, and as Next Friend of M.B. and S.B.,
) Hon. Scott D. McKenna
minors, )
) Calendar H
Plaintiffs, )
)
vs. ) JURY DEMAND
)
LATIN SCHOOL OF CHICAGO, an Illinois )
not-for-profit corporation; RANDALL DUNN; )
KRISTINE VON OGDEN; BRIDGET )
HENNESSY; JANE KNOCHE; ANDREW )
SANCHEZ; ANNELIESE KRANZ; DAVID KOO; )
SHELLEY GREENWOOD; and THOMAS )
HAGERMAN, )
)
Defendants. )

PLAINTIFFS’ OMNIBUS OPPOSITION TO

MOTIONS TO DISMISS THE THIRD AMENDED COMPLAINT

Filed By:

Danielle J. Gould Todd F. Flood

Victoria R. Collado Flood Law, PLLC
Alex D. Marks 155 W. Congress Street, Suite 603
Christine Eduardo Detroit, Michigan 48226
Burke, Warren, Mackay & Serritella, P.C. (248) 547-1032
330 N. Wabash Ave, 21st Floor tflood@floodlaw.com
Chicago, Illinois 60611
(312) 840-7000 Michael D. Weaver
dgould@burkelaw.com Plunkett Cooney PLC
vcollado@burkelaw.com 38505 Woodward Avenue, Suite 2000
amarks@burkelaw.com Bloomfield Hills, MI 48304
ceduardo@burkelaw.com (248) 901-4025
Firm ID No. 41704 mweaver@plunkettcooney.com
Counsel for Plaintiffs’ Robert Bronstein, individually and as Independent
Administrator of the Estate of Nathan Bronstein, a minor, deceased, and Rosellene
Bronstein, individually and as Next Friend of M.B. and S.B., minors.
 TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1
FILED DATE: 3/15/2024 11:48 AM 2022L003763

BACKGROUND .............................................................................................................................2

LEGAL STANDARD ....................................................................................................................13

ARGUMENT .................................................................................................................................14

I. PLAINTIFFS PLEAD A CAUSE OF ACTION FOR WRONGFUL

DEATH BY SUICIDE AGAINST THE LATIN DEFENDANTS
(COUNT I) .............................................................................................................14

A. The Latin Defendants Owed Nate Affirmative Duties That, Under the
Specific Facts and Circumstances of This Case, Amount to Duties to
Prevent Suicide ..........................................................................................15

1. The Latin Defendants Owed Duties to Nate Under the Bullying

Prevention Act, Which Has a Stated Purpose to Address the
Physical, Psychological, and Emotional Harm that Results from
Bullying..........................................................................................17

2. The Latin Defendants Owed Nate Other Duties ............................19

3. The Latin Defendants Had a Duty to Prevent Suicide Because

Suicide is a Foreseeable and Likely Harm Following Cyberbullying
When A School Does Nothing or Exacerbates the Cyberbullying
Injury ..............................................................................................21

4. The Latin Defendants Misstate the Duty Analysis ........................28

B. Plaintiffs Allege that the Latin Defendants’ Breaches of Duty Proximately

Caused Nate’s Death ..................................................................................29

1. Plaintiffs Plead the Latin Defendants’ Conduct Was the Legal Cause
of Nate’s Death ..............................................................................30

a. Where there is a duty to prevent suicide or a showing that

suicide was a reasonably foreseeable and likely result of a
defendant’s conduct, a death by suicide is not an independent
intervening cause ...............................................................30

b. Under the facts and circumstances of this case, Nate’s death

by suicide was a reasonably foreseeable and likely result of
defendants’ conduct, who had a duty to prevent it ............34
 2. Plaintiffs Plead the Latin Defendants’ Conduct Was the Cause in
Fact of Nate’s Death ......................................................................39
FILED DATE: 3/15/2024 11:48 AM 2022L003763

a. The Latin Defendants omit the substantial factor test .......39

b. Cause in fact is a factual issue for the jury ........................40

c. The Latin Defendants’ argument depends on improper

speculation and improper inferences .................................41

C. There Is No Immunity for the Latin Defendants for Nate’s Wrongful Death
(or Any Other Claim) ................................................................................43

D. The Latin Defendants Fail to Meet Their Burden for Immunity Under the
School Code ...............................................................................................45

1. The Latin Defendants’ duties under the Bullying Prevention Act are
not derived from in loco parentis status and do not fall within the
scope of immunity under the School Code ....................................46

2. Schools do not stand in loco parentis to students with respect to

health care decisions; interfering with and depriving parents of their
health care decision-making authority is not an activity connected
with the school program.................................................................49

3. Section 34-84a also does not apply because Plaintiffs do not allege
a failure in the personal supervision and control over the conduct
and physical movements of Nate while on school grounds ...........52

E. The Latin Defendants Fail to Meet Their Burden on the Immunity

Affirmative Defense, Including Because Plaintiffs Allege Willful and
Wanton Conduct. .......................................................................................54

II. PLAINTIFFS PLEAD A SURVIVAL CLAIM UNDER THE

BULLYING PREVENTION ACT AGAINST THE LATIN
DEFENDANTS (COUNT II) ................................................................................61

A. The Bullying Prevention Act Implies a Private Right of Action ...............61

1. Nate was a Member of the Class the Bullying Prevention Act was
Enacted to Benefit ..........................................................................63

2. The Bullying Prevention Act is Designed to Prevent “Physical,

Psychological, and Emotional Harm.” ..........................................63
 3. The Bullying Prevention Act’s Purpose is to Protect Illinois
Students from the “Physical, Psychological, and Emotional Harm”
Caused by Bullying ........................................................................65
FILED DATE: 3/15/2024 11:48 AM 2022L003763

a. The Act is not regulatory in nature ....................................66

b. Even if considered regulatory, there is still an implied private

right of action under the Act ..............................................66

4. A Private Right of Action Under the Act is Necessary .................70

B. There are Provisions to Enforce in the Bullying Prevention Act...............72

C. The Individual Latin Defendants are Liable Under the Bullying Prevention
Act Because They Actively Participated in Violations of the Act.............73

D. The Individual Latin Defendants Do Not Have Parental Immunity Under

the School Code for Their Violations of the Act .......................................74

III. PLAINTIFFS PLEAD A SURVIVAL CLAIM FOR WILLFUL

AND WANTON BREACH OF VOLUNTARY UNDERTAKING
AGAINST THE LATIN DEFENDANTS (COUNT III).......................................75

IV. PLAINTIFFS PLEAD A SURVIVAL CLAIM FOR BREACH

OF FIDUCIARY DUTY AGAINST LATIN (COUNT V). ..................................80

V. PLAINTIFFS PLEAD A SURVIVAL ACTION FOR

COUNSELOR NEGLIGENCE AGAINST DEFENDANTS
KRANZ AND KNOCHE (COUNT IX) ................................................................83

A. Kranz and Knoche Owed Nate Professional Duties of Care as School

Mental Health Counselors..........................................................................83

B. There is No Immunity for Kranz and Knoche in Carrying Out Their

Professional Duties of Care .......................................................................84

C. Direct Contact with Nate Was Not Required for Knoche’s Professional
Duties to be Triggered Here .......................................................................85

VI. PLAINTIFFS PLEAD A SURVIVAL ACTION FOR

COUNSELOR NEGLIGENCE AGAINST LATIN (COUNT X) ........................87

VII. THE BRONSTEINS PLEAD AN ICFA CLAIM FOR LATIN’S OMISSIONS

AND MISREPRESENTATIONS MADE IN INDUCING ENROLLMENT
(COUNT VII) ........................................................................................................87
 A. Latin Concealed Material Facts and Made Affirmative
Misrepresentations .....................................................................................87
FILED DATE: 3/15/2024 11:48 AM 2022L003763

B. The Bronsteins Allege Causation Under the ICFA....................................91

C. The Bronsteins Allege Damages Under the ICFA .....................................92

VIII. THE BRONSTEINS PLEAD AN ICFA CLAIM FOR UNFAIR

PRACTICES AGAINST LATIN AND DEFENDANT KOO
(COUNT VIII) .......................................................................................................93

IX. PLAINTIFFS PLEAD A SURVIVAL CLAIM FOR INTENTIONAL

INFLICTION OF EMOTIONAL DISTRESS AGAINST THE LATIN
DEENDANTS (COUNT IV) .................................................................................95

A. Plaintiffs Sufficiently Plead That The Latin Defendants’ Conduct Was

Extreme and Outrageous ............................................................................95

1. The Latin Defendants were acutely aware that Nate was particularly
susceptible to emotional distress ....................................................96

2. Schools and their personnel stand in a position of power to affect the

interests of minor school children ..................................................97

3. There is no allegation that any Latin Defendant had a reasonable

belief of legitimacy in their conduct toward Nate .........................99

4. The Latin Defendants engaged in extreme and outrageous conduct

toward Nate ....................................................................................99

B. Plaintiffs Sufficiently Plead That The Latin Defendants Knew There Was
A High Probability Their Conduct Would Cause Nate Severe Emotional
Distress .....................................................................................................100

C. Plaintiffs Sufficiently Plead That The Latin Defendants’ Conduct Caused

Nate Severe Emotional Distress...............................................................101

X. THE BRONSTEINS PLEAD A CLAIM FOR INTENTIONAL INFLICTION OF

EMOTIONAL DISTRESS AGAINST ALL DEENDANTS (COUNT VI) ......101

XI. LATIN’S MOTION TO STRIKE IS WITHOUT BASIS ...................................107

CONCLUSION ............................................................................................................................110
 INTRODUCTION

Defendants, who are the Latin School of Chicago (“Latin”) and its current and former
FILED DATE: 3/15/2024 11:48 AM 2022L003763

agents, Randall Dunn (former Head of School), Kristine Von Ogden (former Head of the Upper

School), Bridget Hennessy (Dean of Students), Jane Knoche (Mental Health Counselor),

Anneliese Kranz (Mental Health Counselor), Shelley Greenwood (former Assistant Head of

School), Thomas Hagerman (current Head of School) and David Koo (former Chairman of the

Board), have each filed a motion seeking dismissal of the claims stated against them in Plaintiffs’1

Third Amended Complaint (“TAC”).2 These motions rest primarily on Defendants’ disregard of

the bulk of the allegations in the TAC, as well as speculation, improper inferences, and

misrepresentation of the facts alleged in this case. While Defendants also misstate many points of

law, the motions are classically of the “not true” type of motion to dismiss rejected as improper by

Illinois courts in the Section 2-619 context—and certainly under Section 2-615, where the court

must “accept all well-pleaded facts in the complaint as true and draw all reasonable inferences

from those facts in favor of the nonmoving party.” Krueger v. Lewis, 342 Ill. App. 3d 467, 470

1
“Plaintiffs” refers to Robert Bronstein, individually and as Independent Administrator of the Estate of
Nathan Bronstein, a minor, deceased, and Rosellene Bronstein, individually and as Next Friend of M.B.
and S.B., minors. “The Bronsteins,” as used herein, refers to Robert and Rosellene Bronstein.
2
Each defendant filed a separate motion to dismiss the TAC as follows: (1) Defendant Latin School of
Chicago’s Section 2-619.1 Motion to Dismiss Plaintiffs’ Third Amended Complaint together with its
supporting memorandum (“Latin Br.”); (2) Defendant Randall Dunn’s Section 2-619.1 Motion to Dismiss
Plaintiffs’ Third Amended Complaint (“Dunn Mot.”); (3) Defendant Kristine Von Ogden’s Section 2-619.1
Motion to Dismiss Plaintiffs’ Third Amended Complaint (“Von Ogden Mot.”); (4) Defendant Bridget
Hennessy’s Section 2-619.1 Motion to Dismiss Plaintiffs’ Third Amended Complaint (“Hennessy Mot.”);
(5) Defendant Jane Knoche’s Section 2-615 Motion to Dismiss Plaintiffs’ Third Amended Complaint
(“Knoche Mot.”); (6) Defendant Anneliese Kranz’s Section 2-615 Corrected Motion to Dismiss Plaintiffs’
Third Amended Complaint (“Kranz Mot.”); (7) Defendant Shelley Greenwood’s Section 2-619.1 Motion
to Dismiss Plaintiffs’ Third Amended Complaint (“Greenwood Mot.”); and (8) Defendant Thomas
Hagerman’s Section 2-619.1 Motion to Dismiss Plaintiffs’ Third Amended Complaint (“Hagerman Mot.”).
Plaintiffs respond to these eight motions to dismiss in this Omnibus Opposition. Plaintiffs file a separate
opposition to the motion to dismiss filed by Defendant David Koo, who was the Chairman of Latin’s Board
at the time Nate Bronstein attended Latin and for many months following Nate’s death.

1
 (1st Dist. 2003); Doe v. University of Chicago Medical Center, 2015 IL App (1st) 133735, ¶ 40-

41 (“not true” motions inappropriate at pleading stage).

FILED DATE: 3/15/2024 11:48 AM 2022L003763

Defendants ignore the voluminous detailed allegations in Plaintiffs’ 797-paragraph TAC

in a manner uncannily similar to the blind eye the Latin Defendants3 turned toward Nate

Bronstein’s distress. Plaintiffs have adequately pled allegations supporting all ten causes of action

in the TAC, which should withstand the motions to dismiss.4 Defendants’ desire to tell a different

factual narrative must be left to the jury. Accordingly, this Court should deny the motions.5

BACKGROUND6

This case is before the Court because the Latin Defendants utterly failed in their duties

owed to Nate, a 15-year-old student experiencing psychological and emotional injury from

cyberbullying, and because those defendants withheld essential information from Nate’s parents

which would have enabled them to intervene with appropriate medical care to prevent his tragic

death. (TAC, ¶¶ 644-797.)

3
“The Latin Defendants” refers collectively to Latin, Dunn, Von Ogden, Hennessy, Kranz and Knoche,
who are alleged to have caused injury to Nate and his wrongful death. The remaining Defendants
(Greenwood, Hagerman, and Koo) caused injury to the Bronsteins following Nate’s death and are referred
to only individually or collectively as “Defendants.”
4
The bulk of the Defendants’ motions overwhelmingly addresses Section 2-615 arguments. To the extent
Section 2-619 arguments are raised, specifically: (i) immunity under the School Code (the Latin
Defendants), and (ii) litigation privilege (Dunn, Von Ogden, Hennessy, Greenwood and Hagerman), no
affirmative matter has been submitted by these defendants on the defenses they have the burden of proving.
Rather, defendants merely attack of pleadings.
5
While the TAC is the third amendment to the original complaint, there has been no involuntary dismissal
of any prior complaint, claim or party; each iteration of the complaint has resulted from the voluntary
dismissal or adding of parties. Accordingly, the TAC is the first to be addressed by the Court and leave to
amend any claim deemed deficient by the Court should be allowed here. See, e.g., Davis v. Village of
Maywood, 2023 IL App (1st) 211373, ¶ 8, 13, 45 (error in refusing leave to amend on first allegations
reviewed by court).
6
The TAC is too voluminous to recite all allegations relevant to Plaintiffs’ opposition to the motions to
dismiss in this background summary. Accordingly, Plaintiffs provide a general background and otherwise
cite to the TAC throughout this Omnibus Opposition.

2
 Nate Reported Cyberbullying to Latin

On December 12 and 13, 2021, Nate reported to Hennessy, a Dean of Students, that he was
FILED DATE: 3/15/2024 11:48 AM 2022L003763

the victim of cyberbullying. (Id. ¶¶ 314-326.) Nate provided Hennessy with an unredacted picture

of the Snapchat posted by multiple students, which reached Nate and hundreds of his peers:

(Id. ¶¶ 299-311.)

The unredacted version revealed three of the Latin students involved by face or name, each

of whom was an athlete at the school. (Id. ¶¶ 299-301.) In reporting to Hennessy, Nate shared that

“Bronstein pack” with the smoking emoji meant smoking Nate’s ashes, which put Hennessy on

notice of suicide-baiting as part of the cyberbullying—that Nate should be dead and his ashes

smoked—apparently in response to a joke another Latin student had posted about a basketball

3
 game from Nate’s phone. (Id. ¶¶ 299-306, 312-13, 320.) Nate also shared with Hennessy that in

addition to the Snapchat posts, members of the Latin JV basketball team had attacked Nate in what
FILED DATE: 3/15/2024 11:48 AM 2022L003763

he described as a “f—k you” group chat. (Id. ¶¶ 321-22.)

Nate Reported Injury from the Cyberbullying to Latin

Nate specifically and directly told Hennessy that the cyberbullying caused him to be

extremely frustrated and beyond angry, and to feel like he was experiencing something no student

should—that is, psychological and emotional injury.7 (Id. ¶ 316.) While Plaintiffs do not, at this

time, know what else Nate said to Hennessy regarding his injury—including whether he shared

with her his suicidal ideation of which the Latin Defendants were already on notice, and which he

experienced when researching how to die by suicide the same day he reported to Hennessy—what

is known is that he reported injury. (Id. ¶¶ 314-326, 342.)

Kranz, Knoche, Von Ogden and Dunn Also Knew About Nate’s Cyberbullying Report and Injury

Hennessy knew that cyberbullying and the injuries it causes are serious. (Id. ¶¶ 60-61, 69-

70, 123, 129-135, 189.) Hennessy also knew that Latin’s reputation would be at risk from any

cyberbullying scandal, which here involved many athletes at the school, some of whose parents

were on the Latin Board and otherwise connected within the school. (Id. ¶¶ 18, 20-21, 27, 30, 38,

42-43 (reputation), 73, 432, 447 (prominent or well-connected parents).) Indeed, Hennessy

escalated the matter and shared with the other Latin Defendants about Nate’s report and injury.

(Id. ¶¶ 329-330, 349-50.) The pled facts support that Hennessy discussed the cyberbullying report

7
“Emotional and psychological trauma is the result of extraordinarily stressful events that shatter your
sense of security, making you feel helpless in a dangerous world. Psychological trauma can leave you
struggling with upsetting emotions, memories, and anxiety that won’t go away. It can also leave you feeling
numb, disconnected, and unable to trust other people.” See https://www.helpguide.org/articles/ptsd-
trauma/coping-with-emotional-and-psychological-
trauma.htm#:~:text=Emotional%20and%20psychological%20trauma%20is,that%20won’t%20go%20awa
y.

4
 with Kranz and Knoche, with whom Hennessy had previously communicated regarding their

respective prior notice of Nate’s at-risk and fragile mental health, and who would be contacted in
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such a situation per Latin’s normal practices.8 (Id. ¶¶ 146-153, 155, 166-168, 176, 197; see also

Exhibit A.) Information known to the Bronsteins also supports that Von Ogden, Head of the Upper

School, was notified of the cyberbullying report because of her position at the school, her prior

communications with Mrs. Bronstein, and her statements after Nate’s death, that revealed her

involvement in the decision not to inform Nate’s parents.9 (Id. ¶¶ 426, 429; see also Exhibit A.)

And then there is Randall Dunn, the Head of School in charge of everything at Latin, and

certainly aware of a cyberbullying report implicating many students with influential parents.10 (Id.

¶¶ 7 (Head of School), 329-330, 349-50, 675 (aware of cyberbullying report), 73, 432, 447

(implicating students with influential parents); see also Exhibit A.) Not only was Dunn necessarily

aware of Nate’s serious cyberbullying report, he was also aware that the Illinois State Board of

8
Hennessy, Kranz and Knoche came to learn during the short time Nate attended Latin, and before his
cyberbullying report, that Mrs. Bronstein had concern that Nate would hurt himself (or her); Kranz herself
determined that Nate showed signs of depression, anxiety, agitation and school refusal, while also
struggling with peer interactions, not eating and using poor judgment, in addition to being a recent transfer
student who would soon transfer again (meaning he was displaced in terms of having a school support
system), all layered with the increased mental health struggles brought on by the COVID-19 pandemic.
(TAC, ¶¶ 95-96, 147, 110-113, 234.)
9
At a meeting following Nate’s death, when questioned by the school’s communications director as to
whether there was bullying and why the parents were not informed, Von Ogden explained the decision,
thereby supporting that she was made aware of, or was involved in, that decision. (TAC, ¶¶ 426, 429.)
10
The primary responsibility of the head of an independent school is to carry out the school’s stated mission,
and the National Association of Independent Schools (NAIS) provides guideposts for all heads to
accomplish this goal. (See Exhibit B.) Dunn is to oversee the shaping of the school’s program and the
quality of life in the school community, should involve members of the administration and faculty in
decision-making, and should communicate effectively with all constituencies, including students, faculty
and staff, parents, and the community. (Id.) However, Dunn’s practice was to avoid engaging with parents
when dealing with student conflict or disputes in general. (TAC, ¶¶ 27-43.) The motivation to follow his
established practice was heightened here, given the circumstances and risk of reputational harm, particularly
when Dunn was leaving Latin and would not want a cyberbullying scandal involving multiple athletes with
influential parents marring the end of his tenure at the school. (Id. ¶¶ 557-568.)

5
 Education (“ISBE”) had been pressing Latin for months to adopt a legally-compliant bullying

prevention policy that had, inter alia, procedures for promptly notifying parents or guardians of
FILED DATE: 3/15/2024 11:48 AM 2022L003763

all students involved with an allegation of bullying.11 (Id. ¶¶ 82, 84-86, 588-603, 606-624.) That

state process included additional inquiry by the ISBE on December 14, 2021—the day after Nate’s

report to Hennessy. (Id. ¶ 596.) Dunn had a history of disregarding the ISBE and, both before and

after Nate’s death, he willfully avoided implementing a policy requiring notice to parents that

would be contrary to his actual practice of keeping parents out of student disputes and issues. (Id.

¶¶ 588-603, 606-624.) Moreover, as Von Ogden later revealed, Latin did not want to deal with

Mrs. Bronstein, and Nate would later be leaving the school anyway, so the Latin Defendants chose

to let him suffer, alone. (Id. ¶¶ 196-02, 329-30, 349-50, 401, 405, 426, 429, 471.)

Latin and Its Agents Had Duties to Notify the Bronsteins, and Each Failed

Together, Dunn, Von Ogden, Hennessy (as the administrators) and Kranz and Knoche (as

the mental health counselors) are alleged to have together taken actions and inactions which were

material and substantial in causing Nate’s death by suicide in the weeks following his report of

cyberbullying and injury, including by making Nate’s cyberbullying injury worse by denying it,

showing Nate they would do nothing about it, and blaming Nate for bringing the cyberbullying on

himself. (Id. ¶¶ 329-31, 347-50, 361-66; Exs. A and B.)

Latin and each individual Latin Defendant had knowledge of Nate’s cyberbullying report

and injury, as well as knowledge of, among other things, the detrimental harm caused by

cyberbullying and Nate’s fragile mental health prior to the cyberbullying. (Id. ¶¶ 146-153, 155,

166-168, 176, 197 (Nate’s fragility), 329-330, 349-50, 675 (knowledge of Nate’s report and

injury), 60-61, 69-70, 123, 129-135, 189 (knowledge of harm caused by cyberbullying).) Yet each

11
Dunn, as Head of School, is responsible for ensuring that Latin is in compliance with all applicable laws
and regulations. (See Exhibit B.)

6
 of these defendants directed or acquiesced in a plan to protect Latin’s reputation over compliance

with law and the duties owed to Nate. (Id. ¶¶ 329-330, 349-50, 463 480-81; See Exhibit B)
FILED DATE: 3/15/2024 11:48 AM 2022L003763

Illinois’ Bullying Prevention Act, 105 ILCS 5/27-23.7 (also referred to herein as the

“Act”), imposes a mandate on Latin to “create, maintain and implement” a bullying prevention

policy, specifically including the requirements that Latin personnel (here, Hennessy, Kranz,

Knoche, Von Ogden and Dunn) promptly (and today, within 24 hours) contact the

parents/guardians of all students involved with the allegation of bullying and keep them apprised

of the investigation required by the Act, 105 ILCS 5/27-23.7(b) (policy mandates (4)-(5)), (d).

Choosing silence instead, the Latin Defendants acted unlawfully. (Id. ¶¶ 329-332, 349, 375, 399,

401, 404, 442-43, 512, 596, 603, 676, 678, 721.) The Latin Defendants also owed a duty to Nate

not to interfere with or prevent parental discretion over medical care decision-making of a minor

child, which these defendants breached by withholding critical information from the Bronsteins

about the cyberbullying and Nate’s injury. (Id. ¶¶ 329-332, 346-50, 401, 404-05, 429, 442, 480-

81, 512, 596, 603 (failure to notify), 342 (Nate researches suicide), 370, 400, 443 (outcomes if

Bronsteins were informed), 374-77, 399 (Bronsteins lack information), 672-78 (duty, breach).)

The Latin Defendants Sacrificed Nate’s Mental Health for Their Own Interests, and Interfered with
the Bronsteins’ Parental Discretion to Obtain Medical Care for Their Son

The TAC includes many allegations explaining the betrayal behind the Latin Defendants’

failure to take the very simple step of calling or e-mailing the Bronsteins about the cyberbullying

and Nate’s reported injury. These include allegations that Latin, consistent with its past practice,

sought to avoid reputational harm flowing from a cyberbullying scandal involving multiple

student-athletes with influential parents. (Id. ¶¶ 27-55 (no parents policy), 16-21, 329-330, 349-

50, 463, 480-81 (Latin reputation), 82, 84-86, 588-603, 606-624 (active noncompliance with Act),

24, 37, 56-70 (history of known and ignored bullying), Von Ogden also later admitted that the

7
 school did not want to deal with Mrs. Bronstein and knew Nate would soon leave the school

anyway. (Id. ¶ 254, 401.) These nefarious motivations are further demonstrated by the events of
FILED DATE: 3/15/2024 11:48 AM 2022L003763

the same week—including inquiry by the ISBE on December 14, 2021 and the carefully

manipulative wording of Hennessy’s e-mail to Nate following that inquiry. (Id. ¶¶ 361-66, 596.)

As alleged in the TAC, Latin and Dunn (directly or through his assistant) had been in

communication with the ISBE regarding Latin’s non-compliant bullying prevention policy and

were in the process of stalling the State and trying to avoid adopting a compliant policy. (Id. ¶¶

588-603, 606-624.) Then, on December 14, 2021—the day after Nate notified Hennessy regarding

cyberbullying by many students who engaged with Nate directly in a group chat and/or contributed

to the widespread posting of a Snapchat with a death threat involving smoking Nate’s ashes—the

ISBE inquired again about the status of Latin’s bullying prevention policy. (Id. ¶¶ 596.) This

convergence of events presented a dilemma for Latin and Dunn, who was concluding his troubled

tenure at Latin and wanted to avoid a cyberbullying scandal involving many students (with

prominent parents) on his way out the door. (Id. ¶¶ 557-568.)

The totality of the allegations in the TAC overwhelmingly supports the inference that the

Latin Defendants did not want to comply with their duties to inform the Bronsteins of the

cyberbullying and Nate’s injury because it conflicted with Latin’s (and Dunn’s) “no parents”

practices. (Id. ¶¶ 27-43, 196-202, 329-330, 349-50.) Instead, they chose to turn clear cyberbullying

by multiple students into something else—something they could sweep under the rug and dismiss

as they headed into winter break and said goodbye to Nate Bronstein. (Id. ¶¶ 254, 329-31, 347-50,

361-66, 401.) This motivation on the part of Latin, which was also held or acquiesced in by each

individual Latin Defendant, (id. ¶¶ 329-330, 349-50), is reflected in the events of that week,

including: (i) the failure to notify any parents of a cyberbullying report, (ii) documenting that it

8
 was “per” the advice of Nate (a minor) that the Latin Defendants violated Illinois law by not

informing his parents of the cyberbullying report or his reported injury as required under Illinois
FILED DATE: 3/15/2024 11:48 AM 2022L003763

law,12 (iii) recharacterizing the cyberbullying by multiple students as a “social media incident”

involving only one student, and (iv) messaging that Nate brought this on himself while knowing

that Nate would not likely tell his parents about something Latin blamed him for, particularly if he

feared having his phone—and access to the addictive social media platforms teens cannot live

without—taken away (id. ¶¶ 329-333, 346-366).

The Latin Defendants Knowingly Exacerbated Nate’s Cyberbullying Injury, Which Resulted in
Nate’s Death by Suicide

The Latin Defendants acted with intentional and callous disregard for Nate and his known

psychological trauma, first by not informing the Bronsteins of the cyberbullying report or injury

to their son. (Id. ¶¶ 329-332, 349, 375, 399, 401, 404, 442-43, 512, 596, 603, 676, 678, 721.) The

Latin Defendants knew that cyberbullying itself brings a high risk of self-harm or suicide for the

bullied child, which is significantly exacerbated when a school does nothing—or worse, takes

affirmative action knowing it will exacerbate the cyberbullying injury. (Id. ¶¶ 60-61, 69-70, 123,

129-135, 189.) Despite this serious risk to a child’s life, the Latin Defendants chose not to engage

12
Three days after Nate met with Hennessy on December 13, 2021, in the afternoon of the last day of school
before winter break, Hennessy sent Nate a carefully crafted, lawyerly-sounding e-mail to “close the loop”
and make a misleading record regarding Nate’s report. (TAC, ¶¶ 360-66.) Hennessy used phrasing such as
“per your advice,” which is bizarre for a Dean speaking to a minor student regarding the school’s legal
obligations (notification of Nate’s parents about cyberbullying and injury), about which Nate certainly
could not “advise” the school. (Id.) In their motions, the Latin Defendants point to this one-sided
memorialization by Hennessy, apparently expecting the Court to accept its words as fact rather than simply
that they were written, or to create an issue of fact to contradict Plaintiffs’ allegations in the TAC about this
alleged “advice.” (Compare Latin Br. at 13-14 with TAC, ¶¶ 360-66 (allegations disputing the false “no
parents” narrative of Hennessy’s e-mail).) That argument—that a minor student can dictate whether his
parents are even informed of an injury—reveals the depths of the Latin Defendants’ depravity and is facially
absurd. Parents, not minor children, provide consent and make decisions about medical care for injuries,
including psychological traumas. See n. 34. Moreover, the Bullying Prevention Act mandated that the Latin
Defendants inform the Bronsteins of the cyberbullying report; there is no “unless-the-minor-child-does-
not-want-you-to” exception in the statute. 105 ILCS 5/27-23.7.

9
 with the family they wished to wash their hands of, nor risk a cyberbullying scandal. (Id. ¶¶ 196-

202, 254, 401, 426, 429 (Latin avoids Bronsteins), 329-330, 349-50, 463, 480-81 (Latin
FILED DATE: 3/15/2024 11:48 AM 2022L003763

reputation).) The Latin Defendants willingly sent Nate out the door with the weight of the

cyberbullying on his kid shoulders and with Latin’s own denial and rejection of his experience and

injury piled on. (Id. ¶¶ 316, 405, 429.)

Abandoned by the Latin Defendants, Nate began winter break, during which he put on his

best outward face while grappling with the cyberbullying injury, which Hennessy denied was real

and told him it was just a “social media incident” that was his own fault anyway. (Id. ¶¶ 331, 347-

48, 356, 392-98, 405-06, 429.) Indeed, he smiled to his friends and appeared in control to his

family, while at the same time researching suicide behind the scenes. (Id. ¶¶ 342, 406.) Tragedy

could have been averted if Nate’s parents (and counselors) knew what the Latin Defendants had a

duty to tell them, but withheld—that Nate had experienced a horrible and stressful cyberbullying

onslaught actively participated in by many students at Latin and watched by hundreds more, and

that his emotional and psychological injury was exacerbated by the callous conduct of the Latin

Defendants. (Id. ¶¶ 370, 374-77, 399, 400, 443.) The Bronsteins had this critical information

hidden from them and, before the end of that short winter break,13 during which the injury festered

and grew, Nate died by suicide. (Id. ¶¶ 399-411.)

On the evening of January 13, 2022, Mr. Bronstein made the ghastly discovery of his only

son hanging from a shower head, with a cord wrapped around his neck as a noose. (Id. ¶ 407.)

Within moments, Nate’s mother and his two minor sisters ran toward Mr. Bronstein’s screams to

discover the unimaginable. (Id. ¶ 408.) Nate’s father and older sister, M.B., performed CPR,

desperately attempting to revive and save him. (Id.) Despite the family’s unrelenting efforts, it was

13
The winter break was extended slightly for Nate because he would not start at Francis Parker School until
the new semester began in late January 2022. (TAC, ¶ 397, n.59.)

10
 too late. (Id. ¶ 411.) Nate was pronounced dead that night. (Id.) The cyberbullying injury, which

the Latin Defendants exacerbated, was a material, substantial factor in Nate’s death, and caused
FILED DATE: 3/15/2024 11:48 AM 2022L003763

his severe emotional trauma and other injury as well. (Id. ¶¶ 316, 342, 399-411, 405, 429.)

Defendants Covered Up the Latin Defendants’ Conduct, Added to the Family’s Injury, and/or
Continued Latin’s Non-Compliance with the Bullying Prevention Act

Following Nate’s death, the family was in a state of shock and deep grief, struggling to

understand what could have driven Nate to such desperation. (Id. ¶¶ 482.) The Latin Defendants,

Shelley Greenwood (the Assistant Head School) and David Koo (Chairman of the Latin Board),

and everyone at Latin with knowledge of the cyberbullying, knew what had happened, but the

Bronsteins did not—because even then, the Latin Defendants, Greenwood and Koo cruelly stayed

quiet. (Id. ¶¶ 480-81.) Even as Latin received a report about Nate having been sent a kill-yourself

(“KYS”) message before his death, they stayed quiet. (Id. ¶¶ 450-465.) Even as a parent and

student expressly reported further to the school about the cyberbullying and provided additional

evidence, they stayed quiet. (Id. ¶¶ 445-465.)

In addition to their own silence, the Latin Defendants, as well as Greenwood and Koo,

actively encouraged the broader Latin community not to engage with the Bronsteins, with Dunn

even implying that the Bronsteins were prohibiting the Latin community from addressing Nate’s

death. (Id. ¶¶ 466-473.) All of these defendants crafted or acquiesced in a plan to deny, stay silent

and communicate only a false and misleading narrative that the Bronsteins were difficult and Nate

was no angel, while pointing blame everywhere but at Latin. (Id. ¶¶ 424-433, 480-81.) All the

while, Defendants had (and continues to have) an ongoing statutory duty to inform

parents/guardians of all students involved in the four reports of cyberbullying of Nate by Latin

11
 students,14 as well as to conduct an investigation into the allegations of cyberbullying and keep

parents informed, none of which Latin has ever done. (Id. ¶¶ 329-332, 349, 375, 399, 401, 404,
FILED DATE: 3/15/2024 11:48 AM 2022L003763

442-43, 512, 596, 603, 676, 678, 721 (failure to notify), 333-341, 346, 348 (failure to investigate)

582-587 (Act).) Indeed, even when Thomas Hagerman started working on campus at Latin in

Spring 2022 and after he took over officially as Head of School, Latin remained non-compliant

with the Bullying Prevention Act. (Id. ¶¶ 625-636.)

Defendants’ false and misleading narrative has continued with third parties, including with

Rye Country Day School and people inside and outside of the Latin community—not for the

purpose of litigation, but in the name of Latin’s (and the individual defendants’) reputations and

so that Latin’s high-paying customers and donors do not learn the truth about the depravity of this

school. (Id. ¶¶ 412-433 (crisis response), 445-465 (dismissing parent report), 466-473 (Dunn sends

mass e-mail), 477-79 (cancellation of Latin-Parker game), 560-81 (RCDS).) The cover-up,

including extensive and consistent lying to the Bronsteins, the Latin community, to third parties

and the greater public continues to this day because Latin does not want the world to know how

dangerous it can be to send a child into the school. (Id. ¶¶ 16-21, 329-330, 349-50, 463, 480-81

(Latin reputation); 329-330, 349-50 (failure to inform) 329-31, 347-50, 361-66 (rejecting, denying,

blaming Nate), 24, 37, 63-70 (knowledge of culture of bullying), 27-43, 588-603, 606-624 (delay

and avoidance with compliant bullying prevent policy contrary to no parents policy).)

Plaintiffs seek accountability for the terrible harm caused by Defendants. In doing so they

have amply stated sustainable causes of action, all well-pled under Illinois law.

14
A student reported information about the “F---k you” group chat to a coach; Nate reported to Hennessy;
a parent and student reported the group chat and the Snapchat to Latin after Nate’s death; and a student
reported the KYS message after Nate’s death. (TAC, ¶¶ 287-298, 314-326, 445-465.)

12
 LEGAL STANDARD

For a motion under 735 ILCS 5/2-615, the Court must “accept all well-pleaded facts in the
FILED DATE: 3/15/2024 11:48 AM 2022L003763

complaint as true and draw all reasonable inferences from those facts in favor of the nonmoving

party.” Krueger, 342 Ill. App. 3d at 470; Casualty Insurance Co. v. Hill Mechanical Group, 323

Ill. App. 3d 1028, 1034 (1st Dist. 2001). A court should dismiss a cause of action “only when it

clearly appears that no set of facts could be proved under the pleadings that would entitle plaintiff

to relief.” Krueger, 342 Ill. App. 3d at 470; see also Visvardis v. Eric P. Ferleger, P.C., 375 Ill.

App. 3d 719, 724 (1st Dist. 2007). Similarly, a motion under 735 ILCS 5/2-619 “admits the legal

sufficiency of the complaint[,] but asserts an affirmative defense or matter defeating the plaintiff’s

claim.” Skaperdas v. Country Casualty Insurance Co., 2015 IL 117021, ¶ 14; University of

Chicago Medical Center, 2015 IL App (1st) 133735, ¶ 40-41.

Allegations pled “upon information and belief” are permissible, even with respect to

verified pleadings under Section 2-605. See Cohen v. Smith, 269 Ill.App.3d 1087 (5th Dist. 1995).

Illinois courts acknowledge that it is impractical to require plaintiffs to only plead factual

allegations within a plaintiff’s personal knowledge, and a plaintiff may sometimes be forced to

present allegations that are based on information and belief, particularly when the necessary facts

are within the defendant’s sole knowledge. Smith v. Township High School District, 335 Ill. 346,

351 (1929); Golly v. Eastman (In re Estate of DiMatteo), 2013 IL App (1st) 122948, ¶ 83. “At the

pleading stage a plaintiff will not have the benefit of discovery tools to discern facts hidden from

the plaintiff.” Id. (internal citations and quotations omitted).

Defendants wrongly declare here that allegations made on information and belief are

unsupported conclusions, and further that the TAC is “totally absent” of well-pled allegations

supporting the “information and belief” statements. (Latin Br. at 7, n.1, 12-13, 21; see also Koo

13
 Mot. at 5-7; Von Ogden Mot. at 6; Knoche Mot. at 1-2; Greenwood Mot. at 2-3; Hennessy Mot.

at 3; Dunn Mot. at 3.) For context, of the 627 paragraphs of factual allegations set out in the “Facts”
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section of the TAC, (TAC, ¶¶ 16-643), 36 paragraphs include an allegation made on information

and belief, although the entirety of those paragraphs are not necessarily made on information and

belief. (See id. ¶¶ 24, 76, 79, 176, 178-181, 217, 238-239, 282, 295, 329, 350, 363, 368, 376-377,

430-432, 446, 465, 539, 541, 561-562, 626, 630, 635, 637-639, 641-642.) Given the nature of this

case, where significant information is known only to Defendants even when it should have been

provided to Plaintiffs, these information-and-belief allegations are not only allowed and proper;

they are the only option for Plaintiffs until there is an opportunity to conduct discovery. Golly,

2013 IL App (1st) 122948, ¶ 83. Further, each of the allegations made on information and belief

are supported by near-600 paragraphs of well-pled factual allegations required, for purposes of

Defendants’ motions, to be taken as true. Krueger, 342 Ill. App. 3d at 470; (see also Exhibit A.)

ARGUMENT

I. PLAINTIFFS PLEAD A CAUSE OF ACTION FOR WRONGFUL DEATH BY

SUICIDE AGAINST THE LATIN DEFENDANTS (COUNT I).

A claim against a school for wrongful death by suicide related to the cyberbullying of a

student appears to be a matter of first impression in Illinois. A proper reading of the legal standards

applied to the facts alleged in the TAC supports that Count I is sufficiently pled under Illinois law.

To state a claim under the Wrongful Death Act, including wrongful death by suicide, “plaintiff

must allege: (1) defendant owed a duty to the decedent; (2) defendant breached that duty; (3) the

breach of duty proximately caused the decedent’s death; and (4) that pecuniary damages occurred

to persons designated under the Wrongful Death Act.” See, e.g., Rodgers v. Cook County, 2013 IL

App (1st) 123460, ¶ 31; Stanphill v. Ortberg, 2018 IL 122974, ¶ 33.

14
 The first step is understanding the duties the Latin Defendants owed to Nate, which must

then be considered through the lens of the foreseeability of self-harm, including suicide, resulting
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from a breach of these duties, for analyses of both duty and legal cause. While it is axiomatic that

the Latin Defendants owed duties to Nate, and indeed they admit that he is in the class of persons

subject to protection under the Bullying Prevention Act, the Latin Defendants largely ignore the

duties they owed by jumping to the incorrect conclusion that there can be no duty to prevent self-

harm/suicide, that foreseeability is impossible, and that they are immune from any liability for

their conduct. (Latin Br. at 3-6, 8-15; Dunn Mot. at 3-5; Von Ogden Mot. at 3-4; Hennessy Mot.

at 3-4; Kranz Mot. at 2-4; Knoche Mot. at 3-5.) The proper analysis, however, is to identify the

duties owed and determine if suicide is foreseeable under the facts and circumstances of the case.

E.g., O’Donnell v. Bailey & Associates Counseling, 2023 IL App (1st) 221736, ¶¶ 24, 49. The

facts and circumstances alleged here establish both the requisite duty and foreseeability of harm.

See Sections I.A-B.1., infra.

At every turn, the Latin Defendants misstate and misconstrue the allegations in the TAC,

while summarily ignoring much of the over 600 factual allegations in the TAC. (E.g., Latin Br. at

12-13.) They attack the cause-in-fact allegations, which is a highly factual analysis reserved for

the jury, and argue that they are immune from liability here, (id. at 6-7)—an affirmative defense

for which the Latin Defendants bear the burden of proof. See Section I.B.2., infra.

A. The Latin Defendants Owed Nate Affirmative Duties That, Under the Specific
Facts and Circumstances of This Case, Amount to Duties to Prevent Suicide.

Illinois’ appellate courts have not addressed a fact pattern of suicide following bullying

reports to a school.15 As such, no Illinois court has yet held that a school or its personnel have a

15
There are few wrongful death actions brought against schools or school personnel that have been decided
by the Illinois appellate courts, and no cases involving bullying. The limited cases include two unpublished
decisions addressing supervision of an at-risk student who died after playing a hanging game in the school

15
 duty to prevent suicide. (Latin Br. at 8.) However, the Latin Defendants also do not cite (and

Plaintiffs are not aware of) any case holding that school personnel do not, or could never, have a
FILED DATE: 3/15/2024 11:48 AM 2022L003763

duty to act to prevent the self-harm or suicide of a student. To the contrary, there is ample legal

authority setting out the standard for determining when a duty to prevent self-harm, including

suicide, actually does arise, including the First District in its recent O’Donnell decision, 2023 IL

App (1st) 221736.

In O’Donnell, the First District, for purposes of determining both duty and legal cause,

assessed the general question of whether it could be foreseeable to reasonable persons providing

mental health care services (including a licensed professional counselor, a licensed clinical social

worker, and a psychiatrist) that their breach of professional duties may result in the suicide of a

patient receiving outpatient treatment (including under the facts and circumstances of in

O’Donnell), or whether the outpatient nature of treatment made suicide unforeseeable as a matter

of law. 2023 IL App (1st) 221736, ¶¶ 3, 21. The First District held that because it can be foreseeable

that a patient receiving outpatient care may be likely to attempt suicide when a mental health

professional has not provided reasonable care, suicide could not be deemed unforeseeable as a

matter of law in the outpatient mental health care setting. Id., ¶¶ 47-49. In effect, the duty to provide

reasonable care in an outpatient setting becomes a duty to act reasonably to prevent self-inflicted

harm when it is foreseeable that such harm is likely to result from the failure to provide reasonable

care in that setting. Id., ¶¶ 39, 47-49.

Applying O’Donnell here, the analysis necessarily begins with an assessment of the duties

owed by the Latin Defendants to consider the foreseeable harms flowing from a breach of those

bathroom, and supervision of a student who died after an asthma attack/seizure at school, both finding
immunity under the Tort Immunity Act, which is not at issue here. The one published wrongful death case
addressing the death of a student by suicide who needed drug overdose treatment, Grant v. Board of
Trustees, 286 Ill. App. 3d 642, 643-44 (3rd Dist. 1997), is discussed in depth herein.

16
 duties. Id. Those duties include, inter alia, duties owed by the Latin Defendants to Nate under the

Bullying Prevention Act and a duty not to interfere with parental discretion to obtain medical
FILED DATE: 3/15/2024 11:48 AM 2022L003763

treatment for Nate—both of which required the Latin Defendants to inform the Bronstenis of

Nate’s cyberbullying report and injury. See Sections A.1.-A.3., infra. Further, the Latin Defendants

owed a duty to Nate to refrain from engaging in conduct harmful to him which foreseeably

exacerbated the cyberbullying injury reported by Nate. (TAC, ¶ 645.) The Latin Defendants cannot

deny these duties, so they ignore them entirely. However, the foreseeability of suicide here in the

context of the Latin Defendants’ existing and known duties demonstrates the Latin Defendants’

duties to prevent self-inflicted harm, including suicide, under the specific circumstances here.

1. The Latin Defendants Owed Duties to Nate Under the Bullying

Prevention Act, Which Has a Stated Purpose to Address the Physical,
Psychological, and Emotional Harm that Results from Bullying.

A cornerstone of Plaintiffs’ wrongful death claim are the statutory duties set out in Illinois’

Bullying Prevention Act—a statute which applies to all schools in Illinois, but which the Latin

Defendants wholly ignore in their denial of a duty to Nate. (E.g., Latin Br. at 8-11.) The General

Assembly’s stated purpose in the Bullying Prevention Act is to address the “physical,

psychological, and emotional harm” to Illinois students that is caused by bullying. 105 ILCS 5/27-

23.7(a). The statute provides that Illinois students (including Nate) are entitled to a “safe and civil

school environment” and that “[n]o student shall be subjected to bullying” in the school setting or

by means that disrupts the school setting, e.g., cyberbullying.16 105 ILCS 5/27-23.7(a).

16
The Latin Defendants argue there are no allegations that the cyberbullying here disrupted the school
setting for Nate. (E.g., Latin Br. at 7.) Although that is a red herring argument, Nate was cyberbullied by
multiple schoolmates and the Snapchat was sent to hundreds of others including schoolmates, leading into
Fall finals week at Latin, the first day of which Nate spent time with Hennessy reporting cyberbullying and
his injury. (TAC, ¶¶ 277-326.) The same evening, Nate was researching suicide by hanging instead of
studying for his finals. (Id. ¶ 342.) These are certainly facts demonstrating a disruption of the school setting.
Further, the Bronsteins continue to learn more about their son’s experience and injury, including, for
example, that Nate had expressed to a friend that he was extremely upset and distressed by the cyberbullying

17
 To ensure the “safe and civil school environment” that “is necessary for students to learn

and achieve” and to prevent, limit, and mitigate the “physical, psychological, and emotional harm
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to students” caused by bullying and which “interferes with students’ ability to learn and participate

in school activities,” the General Assembly expressly mandated that every school “create,

maintain, and implement a policy on bullying” and that the policy “must” follow the criteria set

out in the statute. 105 ILCS 5/27-23.7(b), (d) (emp. added); see also

https://www.isbe.net/Pages/Bullying-Prevention.aspx (ISBE directs that all school bullying

prevention policies “must include all policy items required under statute).

One of the required mandates is that, upon the report of any “alleged incident of bullying,”

the school has a procedure in place that it maintains and follows to “inform[] parents or guardians

of all students involved in the alleged incident of bullying” promptly.17 The Bullying Prevention

Act further mandates that the school investigate the alleged incident of bullying and inform parents

and guardians regarding the investigation, making all reasonable efforts to complete the

investigation within ten days. 105 ILCS 5/27-23.7(b)(5). These statutory duties are imposed upon

Latin, which must ensure that its school personnel know about the policy, and upon the school

personnel (including administrators and counselors) who are required to act under the mandated

policy provisions. E.g., 105 ILCS 5/27-23.7(b) (policy mandates (4)-(5), (10)).18

heading into his math final on December 13, 2021. If there were any legitimacy to these types of negative-
inference attacks on the factual allegations (and there is not), this Court should allow Plaintiffs leave to
amend. E.g., Davis v. Village of Maywood, 2023 IL App (1st) 211373, ¶ 8, 13, 45.
17
The 2021-2022 version of the statute required parental notification “promptly” whereas the current
version requires notification within 24 hours; that amendment to the timing requirement is immaterial here
because the Latin Defendants never notified the Bronsteins of the cyberbullying at all. (TAC, ¶¶ 329-332,
349, 375, 399, 401, 404, 442-43, 512, 596, 603.)
18
Citing no authority on point, the individual Latin Defendants argue they owe no duties under the Bullying
Prevention Act, (Dunn Mot. at 4-5; Von Ogden Mot. at 4-5; Hennessy Mot. at 4-5; Kranz Mot. at 4-6;
Knoche Mot. at 4-6), but “school personnel” are defined in the statute to include administrators and
counselors, and the school personnel are the persons required to act in implementing school bullying

18
 2. The Latin Defendants Owed Nate Other Duties.

Many school duties in Illinois arise from, or are recognized by, a statute or regulation.
FILED DATE: 3/15/2024 11:48 AM 2022L003763

There are also common law duties of due care and professional duties owed. While Latin is an

independent private school, it still owes a range of these duties to its students, including with

respect to safety, wellness, and educational standards for students because of its registered and

recognized status with the ISBE.19 See 23 Ill. Adm. Code 425. In addition, courts have recognized

“a duty to supervise students as part of an overall duty to maintain discipline.” Brooks v. McLean

County Unit District No. 5, 2014 IL App (4th) 130503, ¶ 29 (citing 105 ILCS 24-24).20 In carrying

out the supervisory function, school personnel stand in loco parentis only for the limited purpose

of supervision of a minor child in activities connected with the school program, 105 ILCS 5/34-

84a; see also Perri v. Furama Restaurant, 335 Ill. App. 3d 825, 830-31 (1st Dist. 2002) (describing

parental duty to supervise). This means that while acting in a supervisory capacity, school

personnel may be immune from liability for their negligent conduct, but they are liable for their

willful and wanton conduct causing injury to students. Kobylanski v. Chicago Board of Education,

63 Ill. 2d 165, 173 (1976).

prevention policies. 105 ILCS 5/27-23.7(b) (policy mandates (4)-(5), (10)). Indeed, there is no other means
by which a school can implement a policy except through its personnel. See Leonard v. Town of Chesire,
No. CV-21-6115313-S, 2023 Conn. Super. LEXIS 2279 (Super. Ct. Sep. 13, 2023) (court holding that
mandatory provisions in a statutory anti-bullying policy specify explicit actions must be taken by a school
employee, thus creating a ministerial duty, subjecting schools and its employees to liability.)
19
See https://www.isbe.net/nonpublicprograms (identifying Latin’s registered and recognized status from
2021 to present); (Exhibit C (23 Ill. Adm. Code 425). See Leach v. Dep’t of Empl. Sec., 2020 IL App (1st)
190299, ¶ 44 (“Information on websites and in public records are sufficiently reliable such that judicial
notice may be taken.”); K. Miller Constr. Co., Inc. v. McGinnis, 238 Ill. 2d 284, 291 (2010) (judicial notice
on motion to dismiss).
20
Generally, 105 ILCS 24-24 and 105 ILCS 5/34-84a set out the same statutory provisions, but their
application depends on the population where the school is located.

19
 School personnel do not stand in loco parentis to a minor student, nor have any obligation

imposed, for the purpose of consenting, and/or parental discretion with respect, to medical care21
FILED DATE: 3/15/2024 11:48 AM 2022L003763

decision-making; other than the provision of first aid, medical treatment is not activity that is

connected with the school program.22 See O’Brien v. Township High School District, 83 Ill. 2d

462, 467 (1980).

Teachers are not privileged to do everything that a parent may do. Any decision as
to the necessity of medical treatment, at least of the type alleged to have been
administered here, was for the plaintiff’s parents, rather than his teachers, to make
in the first instance. In our opinion, the negligence alleged clearly went beyond
and was totally outside the ambit of a teacher’s supervisory function.

Id. at 467-68 (emp. added); Halper v. Vayo, 210 Ill. App. 3d 81, 89 (2nd Dist. 1991) (distinguishing

the administration of first aid from acts depriving parents of decision-making authority regarding

child’s medical care). Accordingly, school personnel owe a duty not to act or fail to act, or

otherwise to use their supervisory function to interfere with or prevent, parental decision-making

regarding medical care for the minor student. Id.

This is a duty that plays out every school day, across the State of Illinois, when school

personnel call parents to inform them of a witnessed or reported physical, psychological, or

emotional injury. One reason such disclosure is necessary is that the child may need medical care

and, in general, a minor (under the age of 18) cannot consent to medical treatment. (See Exhibit D

21
Medical care and health care, including mental health care, are used interchangeably herein, and mean
“efforts made to maintain, restore, or promote someone’s physical, mental, or emotional well-being
especially when performed by trained and licensed professionals.” See https://www.merriam-
webster.com/dictionary/health%20care (last visited February 27, 2024).
22
If they did, legal authority would not only reflect this status, there would be no need for an extensive
statutory scheme setting forth the standards for administration of medications by school personnel in such
a strict and regulated manner that there is clearly no argument that school personnel have any parental
discretion with respect to medical care decision-making. See 105 ILCS 5/10-20 through 105 ILCS 5/10-
22.21b; 105 ILCS 5/22-30 through 105 ILCS 5/22-33.

20
 (Illinois consent summary).) Only a parent, guardian, or person acting in loco parentis can consent

to the treatment of a minor.23 (Id.); see also Cates v. Cates, 156 Ill. 2d 76, 90-94 (1993)
FILED DATE: 3/15/2024 11:48 AM 2022L003763

(recognizing parental discretion includes categories of “maintenance of the family

home, medical treatment, and supervision of the child”); see also In re N.G., 2018 IL 121939, ¶¶

24-25 (“Parental rights” are “protected by the due process clause” and “parent’s right to the care

of his or her child is, in fact, an interest far more precious than any property right protected by that

provision.”) (internal citations and quotations omitted).

In Illinois, generally only the courts can divest a parent of their discretion with respect to

health care decision-making, as occurs in the marriage dissolution and custody contexts. E.g., 750

ILCS 5/602.5 (directing that significant parental decision-making includes “[h]ealth, including all

decisions relating to the medical, dental, and psychological needs of the child and to the treatments

arising or resulting from those needs”). Certainly, school personnel cannot do so either by:

(i) administering treatment without consent or otherwise making the decision to obtain medical

care other than first aid, or (ii) interfering with, and depriving, parental discretion over medical

care decisions—which Illinois recognizes is a “significant issue affecting the child”—by

withholding knowledge of an injury known or reported to school personnel from the parent, which

is akin to making a decision not to seek medical care promptly or at all.

3. The Latin Defendants Had a Duty to Prevent Suicide Because Suicide

is a Foreseeable and Likely Harm Following Cyberbullying When A
School Does Nothing or Exacerbates the Cyberbullying Injury.

Turning again to and applying O’Donnell, the next step in the duty analysis considers

whether it is foreseeable that self-harm, including suicide, is likely to result from the Latin

23
The general rule is that a patient must consent to medical treatment of any kind. E.g., V.H. v. K.E.J. (In
re Estate of K.E.J.), 382 Ill. App. 3d 401, 413 (1st Dist. 2008). Regarding minors, a parent “may consent
to the performance upon his or her child of a health care service.” 410 ILCS 210/2; 105 ILCS 129/15
(referencing parental consent for health care services).

21
 Defendants’ breaches of their established duties to: (a) inform the Bronsteins of Nate’s

cyberbullying allegation, including his stated injury, under the Bullying Prevention Act, (b) avoid
FILED DATE: 3/15/2024 11:48 AM 2022L003763

interference with, or prevention of, the exercise of parental discretion regarding medical care

decision-making for the minor student by withholding the cyberbullying and reported injury from

the Bronsteins, (c) conduct an investigation under the Act and keep the parents informed, (d) take

action to stop the bullying, and (e) refrain from engaging in conduct to exacerbate Nate’s

psychological and emotional injuries. 2023 IL App (1st) 221736, ¶¶ 39, 47-49.

As directed by the Illinois Supreme Court in Stanphill, the “question is what a reasonable

person would see the likely result to be,” determined by an “objective test, not a subjective one.”

2018 IL 122974, ¶ 34 (emp. in original). Applying the analysis here, this Court must consider what

is foreseeable to a reasonable school and its administrators and mental health counselors, using

“the same degree of knowledge, skill and ability as an ordinarily careful professional would

exercise under similar circumstances,” Advincula v. United Blood Services, 176 Ill. 2d 1, 22-24

(1996); see also Matarese v. Buka, 386 Ill. App. 3d 176, 181-82 (1st Dist. 2008).24

In conducting this analysis, this Court should consider that the risk of self-inflicted harm,

including suicide, of minor children who are bullied is so well-documented and widely known in

our present-day society, including in the media and social media, that it is impossible for a school,

its administrators and its mental health counselors to fail to appreciate the serious risk and direct

correlation between bullying in children and suicide, or to claim that it depends on the student. As

stated by a federal appeals court in 2017—four years before Nate reported cyberbullying to Latin:

Our newspapers and television networks consistently report instances when young
people harm themselves or others after being bullied by their peers. Such
occurrences may not be common within an individual school, but because reports

24
“‘Profession’ is commonly defined as a vocation or occupation that requires advanced education and
training and involves intellectual skills, such as medicine, law, theology, engineering, teaching, etc.”
Advincula, 176 Ill. 2d at 17 (citing Webster’s New World Dictionary).

22
 of these tragedies are consistent and well-publicized, all school districts should
realize that self-harm is a reasonably foreseeable result of bullying, without
requiring specific evidence of the victim’s mental state. If a school is aware of a
FILED DATE: 3/15/2024 11:48 AM 2022L003763

student being bullied but does nothing to prevent the bullying, it is reasonably
foreseeable that the victim of the bullying might resort to self-harm, even suicide.

Tumminello v. Father Ryan High Sch., Inc., 678 F. App’x 281, 288 (6th Cir.), cert. denied, 138 S.

Ct. 121, 199 L. Ed. 2d 32 (2017) (affirming dismissal because school was not aware of bullying).

The Sixth Circuit concluded that self-harm is a reasonably foreseeable result of bullying and of a

school’s failure to act in the face of a bullying report—even when the most resilient of children

are bullied. Id.; see also A.S. v. Lincoln County R-III School District, 429 F. Supp. 3d 659, 671

(E.D. Mo. 2019) (“Notably, the reasonable foreseeability test focuses on the risk of disruption; a

school need not wait for an actual disturbance or a tragic occurrence before it may act.”); Estate

of Olsen v. Fairfield City School District Board of Education, 341 F. Supp. 3d 793, 811 (S.D. Ohio

2018) (denying school’s motion to dismiss claim for wrongful death by suicide resulting from

student bullying and school’s failure to act).

Illinois’ General Assembly agrees, having set out its finding that “bullying causes physical,

psychological, and emotional harm to students,” 105 ILCS 5/27-23.7(a). The legislature enacted

bullying prevention requirements, including, inter alia, that Illinois schools create, maintain, and

implement procedures to promptly inform parents of a child’s bullying allegation. 105 ILCS 5/27-

23.7(b), (d). Illinois directs specific action to schools that they must take when they become aware

of bullying by or of their students. Id. In doing so, the General Assembly nowhere suggests that

its findings or requirements depend on the fragility or resilience of the bullied child. Rather, the

harm occurs because of the bullying. It follows then that the reasonably foreseeable harms,

including that a “victim of bullying might resort to self-harm, even suicide,” not only remain, but

23
 fester and become likely, when a school does not act to protect the child as alleged here, (TAC, ¶

60-61, 69-70, 123, 129-135, 189). Tumminello, 678 F. App’x at 288; see also 105 ILCS 5/27-23.7.
FILED DATE: 3/15/2024 11:48 AM 2022L003763

Implicit in the conclusions of the Sixth Circuit, other courts, and Illinois’ General

Assembly is the obvious fact that children’s lives are at stake here. There is strong public policy

in Illinois favoring the protection of children, which is an important factor in an analysis of duty

and foreseeability. See, e.g., Doe-3 v. McLean County Unit District No. 5 Board of Directors, 2012

IL 112479, ¶¶ 36-38 (finding “public policy concern for the children” were found to “weigh in

favor of finding a duty” imposed upon the school district to protect children from sex offenders).

As stated by the Illinois Supreme Court:

This state has traditionally exhibited an acute interest in the well-being of minors.
Indeed, the welfare and protection of minors has always been considered one of the
State’s most fundamental interests. Long ago, this court acknowledged the
paramount importance of ensuring the welfare of children, and others, who are least
able to protect themselves[.]

Doe-3, 2012 IL 112479, ¶ 36 (internal citations and quotations omitted); see also American Fedn.

of State, County & Mun. Emples., AFL-CIO v. Dept. of Cent. Mgmt. Servs, 173 Ill. 2d 299, 311

(1996) (“To be sure, the welfare and protection of minors has always been considered one of the

State’s most fundamental interests.”).

Illinois children—who are inherently “fragile” and in need of protection under the law

because they are children—face inherent harm when they are bullied, and a likelihood of self-

24
 inflicted harm, including suicide, that is entirely foreseeable to a school professionals.25,26

Certainly, it was foreseeable to our General Assembly nearly 20 years ago. When the Bullying
FILED DATE: 3/15/2024 11:48 AM 2022L003763

Prevention Act was first enacted in 2006, it looked much different than it does today, when it was

limited to recommending instruction on bullying and gang resistance education. (See Exhibit C,

(2006 version of statute).) Yet, the causal tie between bullying and suicide was a driving force

behind the statute. Indeed, when presenting the bill, Senator Lightford stated that:

[The] Illinois Center for Violence Prevention [] indicates that one in six students
are actually victims of bullying, that frequently bullied kids are more suicidal...

(Exhibit E, 2005 Ill. SB 2630, p. 32 (Sen. Lightford) (emp. added).) When the statute was amended

with 2009 Ill. SB 3266, Senator Lightford stated:

Bullying is a serious problem. It’s a serious problem in our State. It leads to

violence. We had four children last year commit suicide who were being bullied
at the young age of ten, eleven and fifteen. We should not take this lightly.

25
(TAC, ¶¶ 57-62, 63-70 and Exs. B, F (Latin’s knowledge of student bullying rates and historical bullying
complaints at the school), ¶ 57, n. 8 (Eric Gofen & Tyler Goff, AP Stat: Bullying at Latin, The Forum (June
2, 2014) (available at https://readtheforum.org/4075/features/ap-stat-bullying-latin/)), ¶¶ 117-123 (Latin
Defendants’ and Greenwood’s knowledge of prevalent mental health collateral impact among teens from
COVID-19 and suicide), ¶ 118, n. 19 (https://www.psychiatrictimes.com/view/teens-in-america-how-the-
covid-19-pandemic-is-shaping-the-next-generation), ¶ 120, n. 20 (https://elyssasmission.org/signs-of-
suicide/), ¶¶ 124-128 and Ex. G, ¶¶ 177-179 and Exs. H-I (Kranz’s and Knoche’s knowledge and ASCA
training regarding bullying, health issues, and risk of self-harm in teenagers), ¶ 179
(https://www.eurekalert.org/news-releases/775571,
https://psychnews.psychiatryonline.org/doi/full/10.1176/appi.pn.2021.10.9), ¶¶ 129-135 (Latin
Defendants’ knowledge that student bullying created risks of suicide), ¶ 133, n. 21
(https://piper2.bluematrix.com/docs/pdf/3bad99c6-e44a-4424-8fb1-0e3adfcbd1d4.pdf), ¶ 134, n. 22
(https://pubmed.ncbi.nlm.nih.gov/27998261/)), ¶ 135, n. 23
(https://www.nais.org/articles/pages/books/trendbook-excerpt-rates-of-bullying-vary-by-race-and-
ethnicity/), ¶ 187 and Ex. K, ¶ 279 and Ex. J.)
26
Not only are children in need of protection simply because they are children, the likelihood that they are
suffering from a mental health condition is high. In the Wellness Checks in School Programs Act, effective
June 2, 2022, the General Assembly sets out its findings, including that “[d]epression is the most common
mental health disorder among American teens and adults, with over 2,800,000 young people between the
ages of 12 and 17 experiencing at least one major depressive episode each year, approximately 10-15% of
teenagers exhibiting at least one symptom of depression at any time, and roughly 5% of teenagers suffering
from major depression at any time.” 105 ILCS 155/1-5(1).

25
 (Exhibit F, 2009 Ill. SB 3266, p. 58 (Sen. Lightford) (emp. added).)

The... problem comes, and one of the most heartbreaking stories I’ve heard, was
FILED DATE: 3/15/2024 11:48 AM 2022L003763

from a family whose son had just made his second suicide attempt, and had been
bullied out of two schools. When he… left the second school, he was told, and his
family was told, that no other family had made a complaint like this. Within two
days of word getting out about this child’s attempt on his own life, they heard from
four other families who had been bullied out of that same school, who had told the
exact same thing. This is nothing short of victim blaming. We need to know the
size and scope of this problem so that we can do a better job of protecting our kids
and our families.27

(Exhibit G, 2013 Ill. HB 5707, p. 64 (Rep. Cassidy).) The General Assembly also recognized the

devasting impact of cyberbullying:

Cyberbullying is an issue that’s impacting our students with bullying, no longer on

school property, but actually in the privacy of their own home, on social media,
through text messages. And we’re finding that this is having devastating effects on
children.

(Exhibit H, 2013 Ill. HB 4207, p. 75 (Rep. Fine).)

We’ve seen the devastating effects of cyberbullying because once a message gets
out there on social media, we don’t know many people it’s going to reach. And
unfortunately, we’ve seen victims of cyberbullying have to change schools. We’ve
seen the very devastating effects of suicide as a … result of cyberbullying.

(Id., p. 78 (Rep. Fine) (emp. added).)

Amendments to the Bullying Prevention Act reflect efforts to improve prevention of self-

harm, including suicide, most obviously with the mandate that, upon receiving a bullying

allegation, school personnel must not just inform all parents and guardians involved, but to act

promptly (and now, within 24 hours) to inform parents and guardians. 105 ILCS 5/27-23.7(b)

27
Victim blaming is exactly what the Latin Defendants did to Nate, and what Latin has done to others.
(TAC, ¶¶ 36-37 and Ex. B, 331, 347-48.) Indeed, the day before Nate died, Hennessy repeated a similar lie
as relayed in Sen. Lightford’s story when Hennessy e-mailed Mrs. Bronstein (regarding her daughter, S.B.)
to state gratuitously: “I have not been made aware of any similar [bullying] reports at Latin, but of course,
we do not know much of what goes on in private social circles.” (Id. ¶ 403.) That false statement came
despite Hennessy’s direct knowledge of what had happened to Nate weeks earlier, that she directly
exacerbated, and which would prove to be a material and substantial factor in Nate’s death the next day.

26
 (policy mandate (4)). The rationale behind this urgency, when considered in light of the overall

purpose of the statute, is obvious—to prevent further “physical, psychological, and emotional
FILED DATE: 3/15/2024 11:48 AM 2022L003763

harm” to the bullied child by informing that child’s parents (who can obtain medical care and

intervention,28 including in taking away or limiting access to devices), as well as the bullies’

parents (who can contribute to stopping the bullying). 105 ILCS 5/27-23.7(a)-(b)(4)-(5); see also

Ferris, Thompson & Zweig, Ltd. v. Esposito, 2015 IL 117443, ¶ 21 (requirement in statute such as

“prompt” provides time restriction for a reason consistent with the purpose of the statute).

The knowledge and understanding that suicide is a foreseeable and likely injury resulting

from cyberbullying when a school does nothing or, as is the case here, makes it worse, see supra

at 4-11, is not just overwhelmingly documented in our present-day society and reflected in the

laws, which a reasonable person and the Latin Defendants are presumed to know. Jones v. Board

of Education, 2013 IL App (1st) 122437, ¶ 22 (“everyone is presumed to know the law and

ignorance of the law excuses no one”). It is also reflected in training, surveys, other information,

and professional guidelines and standards for school personnel, including the Latin Defendants.

See supra n. 25. See also Advincula, 176 Ill. 2d at 22-24 (duty analysis considers “degree of

knowledge, skill and ability [of] an ordinarily careful professional”).

Because suicide is a foreseeable and likely result when a school and its personnel breach

their duty to inform parents of cyberbullying under the Act, and when they interfere with parental

discretion with respect to medical care for their minor child by withholding information about an

injury known to them, these duties equate to duties to prevent suicide.29

28
The Act specifically states that in notifying parents and guardians, school personnel are to discuss with
them, as appropriate, “the availability of social work services, counseling, school psychological services,
other interventions, and restorative measures.” 105 ILCS 5/27-23.7(b) (policy mandate (4)).
29
The analysis of other or alternative duties not raised in the wrongful death claim, are addressed in Sections
III, IV, IX, X (voluntary, fiduciary, and professional duties).

27
 4. The Latin Defendants Misstate the Duty Analysis.

The Latin Defendants confuse the duty analysis, but perhaps only because the “concept of
FILED DATE: 3/15/2024 11:48 AM 2022L003763

duty in negligence cases is involved, and nebulous” and “confusion can stem from the fact that the

existence of a duty is not a discoverable fact of nature but, rather, involves considerations of public

policy.” Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶¶ 16-17 (internal citations and

quotations omitted).

Specifically, the Latin Defendants cite cases applying the common law duty of care owed

by each person to exercise ordinary care to guard against injury which naturally flows as a

reasonably probable and foreseeable consequence of his act. (E.g., Latin Br. at 8-9.) In each cited

case, plaintiffs sought to impose an affirmative duty of care, which the courts rejected. (Id. (citing

Ziemba v. Mierzwa, 142 Ill. 2d 42, 53 (1991) (no duty to warn of hidden driveway owed to bicyclist

when injury was caused by negligent truck driver not the fact of hidden driveway) and Kirk v.

Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 526-33 (1987) (no duty to warn owed

to car accident victim by driver’s doctors, hospital, or drug manufacturer of driver’s medication)).)

The most misleading case cited by the Latin Defendants is Chalhoub v. Dixon, where the

First District considered whether a stepfather (who kept a handgun wrapped in a t-shirt on a shelf

in the closet of his home with the bullets in a separate drawer) owed a duty to his adult stepson

(who did not reside in the home) to safely secure and store the handgun and to prevent the stepson’s

access to it because he was suffering from suicidal depression. 338 Ill. App. 3d 535, 538 (1st Dist.

2003). The First District declined to impose an affirmative duty to secure the home to prevent

suicide at the summary judgment stage after considering the following undisputed material facts:

(1) the stepson was an adult, (2) the stepson did not reside in the home, (3) the stepfather owed no

professional duty to the stepson, but instead was a “lay person” lacking knowledge about persons

28
 with suicidal depression who believed that his stepson’s release from the hospital meant that his

condition was safe (i.e., that the professionals knew what they were doing),30 and (4) the stepson
FILED DATE: 3/15/2024 11:48 AM 2022L003763

was a competent adult who understood what he was doing and took his own life. Id. at 539-40.

Further, the Court found that the magnitude of placing a burden on the stepfather to secure the

home to prevent suicide was too great because it cannot reasonably be done. Id. at 539 (questioning

who would be subject to such a duty and would they have to secure all knives, razors, aspirin, and

other potentially harmful items in a house).

In Chalhoub, the First District found it was too much to expect that a lay person would

foresee that failure to secure the handgun under the facts and circumstances of the case before it

would lead the other adult to use the gun to die by suicide. 338 Ill. App. at 539. In stark contrast

here, it is not too much to expect that licensed education professionals and mental health counselors

will pick up the phone or send an e-mail to parents when they become aware of bullying of a

child—through a report or witnessing it—as expressly required under the Act. Nor is it too much

to expect that the same people will inform the parents of any reported injury from the bullying to

prevent interference with parental discretion as to medical care for a minor child. To the extent the

Court considers Chalhoub, the reasons weighing against a duty in that case are dramatically

inverted here.

30
Chalhoub discussed a lay person—a person with only a general duty of care that is owed to and by all
persons—in comparison with medical professionals who owe professional duties. As applied here, two of
the Latin Defendants fall within the scope of medical professionals, as licensed mental health counselors
(Kranz and Knoche), and others acted as professional school administrators (Dunn, Von Ogden, Hennessy),
so none are “lay persons.” That said, under Count I for wrongful death, Plaintiffs do not seek to hold any
of the Latin Defendants to the duties of care imposed upon medical professionals, but rather to a simple
duty applicable to every agent of an Illinois school—when cyberbullying or other equivalent injury is
reported, the parents/guardians must be informed.

29
 B. Plaintiffs Allege that the Latin Defendants’ Breaches of Duty Proximately
Caused Nate’s Death.
FILED DATE: 3/15/2024 11:48 AM 2022L003763

“The proximate cause element is a factual question for the jury to decide and has two

components: cause in fact and legal cause.” Stanphill, 2018 IL 122974, ¶ 34 (citing Turcios v.

DeBruler Co., 2015 IL 117962, ¶ 23); Solis v. BASF Corp., 2012 IL App (1st) 110875, ¶¶ 42-43.

The Latin Defendants argue that establishing legal cause is effectively impossible here

because of a “general rule” that suicide is an independent intervening act which as a matter of law

breaks the chain of causation. (E.g., Latin Br. at 5-6.) But as demonstrated by the standards

promulgated by the Illinois Supreme Court, and all of the case law addressing the issue, a highly

factual analysis is required to assess whether that general rule would actually apply. Based on the

facts alleged here, the general presumption of suicide as an intervening act is amply overcome by

the defendants’ duty to prevent Nate’s entirely foreseeable suicide. See Section I.A.1-3., supra.

The Latin Defendants also argue that cause in fact—obviously a highly factual element—

is not pled in the TAC. (Latin Br. at 3.) Here the Latin Defendants again misstate applicable legal

standards and disregard the extensive causal allegations in the TAC. Proximate cause is abundantly

pled here. This Court should deny dismissal of this count.

1. Plaintiffs Plead the Latin Defendants’ Conduct Was the Legal Cause of
Nate’s Death.

a. Where there is a duty to prevent suicide or a showing that

suicide was a reasonably foreseeable and likely result of a
defendant’s conduct, a death by suicide is not an independent
intervening cause.

Illinois Supreme Court precedent makes clear there are no absolutes when considering

liability for wrongful death by suicide. To start, precedent directs that the “general rule” that

suicide is an independent intervening act which breaks the chain of causation does not apply where

there is a duty to prevent self-inflicted harm, including suicide. See Turcios, 2015 IL 117962, ¶ 20

30
 (general rule applies in negligence cases “provided the defendant was under no duty to decedent

to prevent the suicide”) (emp. added). Further, the “general rule” may be “overcome,” id., ¶ 40,
FILED DATE: 3/15/2024 11:48 AM 2022L003763

and “liability will attach” when “the suicide was a reasonably foreseeable result of the defendant’s

conduct.” Stanphill, 2018 IL 122974, ¶ 35. The analysis, however considered, is heavily dependent

upon the facts and circumstances of each specific case.

The Illinois Supreme Court’s first consideration of the concept, in 1965, involved an

evidentiary ruling at trial. Little v. Chicago Hoist & Body Co., 32 Ill. 2d 156, 159 (1965). The

Court assessed the specific evidence in the case before holding that “[u]nder these circumstances,

justice would not be served” with “the introduction of such highly prejudicial testimony” regarding

a suicide attempt. Id. (emp. added). The factual nature of the analysis was acknowledged in the

appellate decisions that followed, including Winger v. Franciscan Medical Center, 299 Ill. App.

3d 364, 374-75 (3d Dist. 1998) (reversing grant of summary judgment to defendants in wrongful

death action wherein decedent died by suicide). As stated by the Third District:

We note that the defendants are not guarantors of safety. This is not a matter of
strict liability. The burden on the hospital and physician is to take reasonable steps
to avoid a foreseeable tragedy in their facility. The degree of care and its
character will necessarily vary with the circumstances of each case. In this case
whether the suicide was foreseeable and whether the conduct of the defendants
was reasonable under the circumstances are questions of fact to be determined
by a jury. Therefore, we hold that summary judgment was inappropriately granted.

Id. at 375 (emp. added).

Similarly, in Repinski v. Jubilee Oil Co. 85 Ill. App. 3d 15, 26 (1st Dist. 1980), the First

District reviewed the facts and evidence offered at trial and determined that evidence of a suicide

attempt more than three months after the accident at issue in the case, including expert testimony,

was admissible for jury consideration. Even the cases cited by the Latin Defendants reveal that the

specific facts and circumstances of any given case are highly relevant to the analysis and often

31
 addressed by the courts at summary judgment or trial. (E.g., Latin Br. at 9-10 (citing Chalhoub,

338 Ill. App. 3d 535 (summary judgment) and Crumpton v. Walgreen Co., 375 Ill. App. 3d 73, 82
FILED DATE: 3/15/2024 11:48 AM 2022L003763

(1st Dist. 2007) (trial).)

When the Illinois Supreme Court again addressed the general rule in 2015, it made clear

that there is no rule of law forming a blanket bar to wrongful death by suicide. In addressing

whether a different foreseeability standard applied to intentional tortfeasors who had no duty to

prevent suicide, the Supreme Court held that a plaintiff can still overcome the rule by pleading

both “cause in fact of the suicide” and “facts which, if proven, would overcome application of the

general rule that suicide is deemed unforeseeable as a matter of law,” specifically facts alleging

that the suicide was “a likely result of the defendant’s conduct.” Turcios, 2015 IL 117962, ¶ 20.

Far from providing an absolute bar on a wrongful death claim (as the Latin Defendants argue),

Turcios holds clearly that where facts are pled supporting that the suicide death was likely resulted

from the defendant’s conduct, the general rule is overcome.

Three years after Turcios, the Supreme Court again discussed the applicable standards in

Stanphill, a decision the Latin Defendants conspicuously ignore. The Court stated:

In wrongful death cases involving suicide, the general rule is that the injured party’s
voluntary act of suicide is an independent intervening act, which is unforeseeable
as a matter of law and breaks the causal link between any alleged negligent conduct
and the injury. Turcios, 2015 IL 117962, ¶ 20. Nevertheless, our courts have held
that, where a plaintiff can show that the suicide was a reasonably foreseeable
result of the defendant’s conduct, liability will attach. Id.; Hooper, 366 Ill. App.
3d at 8; Winger v. Franciscan Medical Center, 299 Ill. App. 3d 364, 375, 701
N.E.2d 813, 233 Ill. Dec. 748 (1998). Accordingly, whether it is reasonably
foreseeable that person is at risk of suicide is a key factor in determining whether
the proximate cause element has been sufficiently proven.

2018 IL 122974, ¶ 35 (foreseeability in professional negligence case is based on objective, not

subjective standards).

32
 The Latin Defendants misread Turcios and non-Supreme Court decisions—while ignoring

Stanphill—to argue that “only [] two narrow situations” exist allowing a claim for a wrongful
FILED DATE: 3/15/2024 11:48 AM 2022L003763

death by suicide: where there is insanity from a physical injury that leads to suicide, or where the

defendant is a mental health profession owing a duty of care to the decedent. (E.g., Latin Br. at 9-

10.) The Latin Defendants’ wishful limitation, however, cannot be reconciled with the Supreme

Court’s broad holding that where “the suicide was a reasonably foreseeable result of the

defendant’s conduct, liability will attach.” Stanphill, 2018 IL 122974, ¶ 35. In confirming the

applicable standard in 2018, the Supreme Court mentioned no exception or limitation to insanity

or mental health professionals. See generally, id. According to the Illinois Supreme Court, if

suicide is reasonably foreseeable, it is not unforeseeable as a matter of law. Id.

Indeed, the attempt to limit exceptions to the general rule to only two specific fact

scenarios, as made by the Latin Defendants here (e.g., Latin Br. at 10), was recently rejected by

the First District in O’Donnell, 2023 IL App (1st) 221736. In O’Donnell, defendants argued, and

the circuit court accepted, that there are only two factual exceptions to the general rule not

applicable in that case, thus preventing any possibility of liability. Id. ¶ 21. In rejecting this

argument and reversing the circuit court, the First District held:

The Turcios court stated that the general rule was not absolute. [2015 IL
117962,] ¶ 40. It recognized that a plaintiff could plead facts that ‘would
overcome application of the general rule that suicide is deemed unforeseeable
as a matter of law.’ Id. According to the court, those allegations must include
‘facts demonstrating that the suicide was foreseeable, i.e., that it was a likely result
of the defendant’s conduct.’ Id.

The parties and the circuit court all recognize that this general suicide rule has
exceptions. But the defendants and the circuit court, relying on what we view as a
misreading of our previous cases, conclude that no exception can apply here.
We find that such a conclusion would be at odds with several decisions of our
supreme court and is not at all compelled by the cases on which defendants rely.

33
 Id, ¶¶ 24-25 (emp. added). After expressly rejecting the same argument the Latin Defendants make

here (Latin Br. at 9-10), the First District proceeded as our appellate courts have done all along—
FILED DATE: 3/15/2024 11:48 AM 2022L003763

by considering the facts of the case before it to assess duty and legal cause. Id., ¶¶ 26-34.

The First District’s directive to lower courts is not to robotically consider only end

conclusions in other reported cases, but to apply the standards recognized by the Illinois Supreme

Court to determine whether suicide is alleged to be foreseeable to the defendants under the facts

and circumstances presented in each case. See, e.g., id., ¶¶ 35-37, 41 (distinguishing Doe v. Doe,

2016 IL App (1st) 153272, where the court affirmed it was not foreseeable to children who had

expressed a fraudulent intent to commit suicide that another child would then commit suicide).

b. Under the facts and circumstances of this case, Nate’s death by

suicide was a reasonably foreseeable and likely result of
defendants’ conduct, who had a duty to prevent it.

This Court faces a specific fact pattern of first impression. Under these facts, the

straightforward application of the Illinois Supreme Court standards and the analysis in O’Donnell

supports only one conclusion—Nate’s death by suicide here is not an act wholly independent and

intervening that absolves the Latin Defendants of their wrongdoing. To the contrary, the duties

imposed here—including a statutory duty to promptly inform the Bronsteins of Nate’s report of

cyberbullying (and injury) for the purpose of preventing further “physical, psychological, and

emotional harm,” 105 ILCS 5/27-23.7(a)-(b)—were basic and easy to comply with. And the Latin

Defendants undeniably knew of the direct and foreseeable link between cyberbullying and suicide

in American teens, as described in detail above. See Section I.A.3., supra; see also n. 25.

Moreover, the causation analysis here has an additional factor, beyond the mere duty to act

given the foreseeability and likelihood of suicide of a cyberbullied teen. The Latin Defendants did

not just fail to act; rather, they acted intentionally and callously and made the cyberbullying injury

34
 worse for Nate. All the Latin Defendants had to do was to inform the Bronsteins of the

cyberbullying and Nate’s reported injury so that his parents could, inter alia, exercise their parental
FILED DATE: 3/15/2024 11:48 AM 2022L003763

discretion with respect to Nate’s mental health care. Instead, the Latin Defendants intentionally

withheld information from the Bronsteins and then engaged with Nate in the most manipulative

and heartless way so that his cyberbullying report would be recast into a narrative crafted by the

Latin Defendants to avoid compliance with the Act. See supra at 6-11.. The Latin Defendants

engaged in this selfish manner even though they knew that communication with parents is critical

and required. (TAC, ¶¶ 177-178); 105 ILCS 5/27-23.7 (bullying prevention).31

The Latin Defendants’ malfeasance included denying the cyberbullying by multiple

students, recasting it as a “social media incident” with only one other student, and blaming and

shaming Nate for bringing this upon himself—all of which clearly impacted Nate’s understanding

of, and willingness to talk about, the cyberbullying harm. See supra at 4-11. (TAC, ¶¶ 374-77,

399, 405, 177-179 (teens deny suicidal ideation).) The Latin Defendants did not have to risk Nate’s

life, but they did. They sacrificed Nate to their own self-interests in avoiding a cyberbullying

scandal at the school and having to trouble themselves for a student who was soon to transfer out

of Latin. The Latin Defendants selfishly acted to increase the already glaringly foreseeable risk of

suicide. See supra at 7-9.

Compounding their callousness here, the Latin Defendants acted with knowledge of Nate’s

at-risk and fragile mental state. To start, each of the Latin Defendants knew that Nate was a transfer

student and that being a transfer student is itself stressful. (TAC, ¶¶ 95-96, 111-116, 147.) As

Kranz told Nate, “transferring to a new school can be really tough, especially after a year like last

31
The Latin Defendants also know that the school’s motivation must be the best interests of the child, not
forsaken for the reputation of the school or the self-interests of school personnel. See, e.g., 105 ILCS 5/10-
22.24b (school counseling services); 105 ILCS 5/22-12 (preventing or interfering with a child’s attendance
at school); 105 ILCS 5/34-84a.1 (principals shall report incidents of intimidation).

35
 year,” referencing to the COVID-19 pandemic. (Id. ¶ 147.) By this time, the pandemic was not

“over,” as the anxiety continued through the Omicron variant and required mask-wearing. As Von
FILED DATE: 3/15/2024 11:48 AM 2022L003763

Ogden shared with the school in November 2021, the school was observing social and emotional

difficulties in its students with the return from remote learning.” (Id. ¶ 234.) Nate was, obviously,

one of those students observed.

Indeed, from the start of the school year to the point at which Von Ogden shared that

message, Hennessy was directly informed of Nate’s “full-fledged anxiety” in transferring to Latin

(id., ¶ 110-113) and, a few months later, Kranz was informed that Nate was struggling and felt

rejected, mistreated and ostracized by the students at Latin, which caused him much distress and

in turn created anger and distress at home, (id., ¶ 136-146). This led to Nate to continue expressing

his distress about Latin and to begin skipping school, which was known to Kranz and Hennessy.

(Id. ¶¶ 148-156.)

On October 12, 2021, Kranz met with Nate and believed a “plan” to support Nate was

needed. (TAC, ¶ 155-156.) Two days later, during a meeting with the Bronsteins and Nate, Kranz

heard Nate repeat his feelings of isolation, rejection and ostracization, that he did not want to be

at Latin and that he was resentful for having to attend the school. (Id., ¶ 157.) The “plan” coming

out of that meeting was to encourage Nate to get involved at Latin, including with the basketball

team. (Id., ¶¶ 157-58, 164.) Mrs. Bronstein also requested that Kranz help support Nate and help

him understand that his parents were trying to advocate for him. (Id., ¶ 161.) On October 17, 2021,

Mrs. Bronstein relayed to Kranz that Nate was struggling with peer interactions, including

inquiries as to why he transferred from Parker. (Id., ¶ 163-66.)

Despite this “plan,” difficulties for Nate escalated. By October 19, 2021, Mrs. Bronstein

was desperate for help for her son as she expressed to Kranz that Nate “has gone crazy” to the

36
 point of possibly needing to send him away—that he was “terrorizing us and sabotaging his school

responsibilities.” (Id., ¶¶ 166.) Kranz informed Mrs. Bronstein she would meet with Nate and that
FILED DATE: 3/15/2024 11:48 AM 2022L003763

Mrs. Bronstein should understand that Nate was going to look to blame his parents because it

makes him feel better. (Id., ¶¶ 167.)

Kranz indicated to Mrs. Bronstein she would meet with Nate, but in the interim,

Mrs. Bronstein requested a psychiatrist referral, stating that, “I’m afraid [Nate] is going to hurt

himself or hurt me.” (Id., ¶¶ 168.) Kranz responded with recommendations, and then, unbeknownst

to the Bronsteins, proceeded to assess Nate for suicidal ideation. (Id. ¶¶ 169-72, 185-86.) Setting

aside Kranz’s failures in conducting that assessment, including informing Nate that his mother’s

statements instigated it despite Mrs. Bronstein having shared that she feared for her own safety,

Kranz learned information during the assessment (and following) that informed her of Nate’s

serious mental health risks. (Id. ¶¶ 173.) Nate expressed anger, irritability, and resentment

(verbally and nonverbally) during the assessment, both about being at Latin and his parents placing

him there and sought to end the meeting. (Id. ¶¶ 174.) While Nate denied suicidal ideation, Kranz

knows well that many people, especially teens, verbally deny suicidal ideation and that there are

other key signs to consider which were present for Nate, including his extreme agitation in

response to the assessment, depression, school refusal, not eating, increasing agitation at home to

the point where the people living with Nate were concerned for his safety. (Id. ¶¶ 174-83, 198.)

Kranz shared her knowledge with Hennessy following the assessment for suicidal ideation,

and the two decided together that Latin could not help Nate, “especially because he is resistant to

any support.” (Id. ¶¶ 197.) Setting aside the failures of the school in this moment and thereafter,

(id. ¶¶ 186-195, Exs. FF-GG), the allegations are ample that Kranz, Hennessy and eventually

Knoche, Von Ogden and Dunn, (Exhibit A) all knew that Nate was at risk and psychologically

37
 and emotionally fragile, (see supra at 4-5.). Indeed, Nate’s situation was dire enough that the Latin

Defendants wanted no part in it. (Id. ¶¶ 197-203.). Choosing to wash their hands of this family, the
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Latin Defendants chose not even to expressly acknowledge they would do nothing to help Nate—

for example, that the Bronsteins would not be informed upon the school’s notice of circumstances

exacerbating Nate’s fragility, like cyberbullying—but rather merely played hot potato with

Mrs. Bronstein’s many inquiries. (Id.)

Within that context, the Court should consider the fateful moment when, as these concerns

reached a crescendo, Nate reported to Hennessy that he was being cyberbullied by multiple

students, including students on the JV basketball team that he joined as the center of Kranz’s plan.

(Id. ¶¶ 314-326.) With that context, the Court should consider Nate’s statements to Hennessy that

he was extremely frustrated, beyond angry and experiencing something that no student should

have to deal with. (Id. ¶ 316.) Under these facts and these circumstances, any reasonable school

administrator or mental health counselor would have foreseen that this child’s life was at serious

risk. Any reasonable school administrator or mental health counselor would have informed the

parents of the cyberbullying and Nate’s stated injury. But no reasonable school administrator or

mental health counselor would have summarily denied the obvious cyberbullying and blamed it

on the bullied child, sending him on his way to handle the unresolved injury alone.

The foreseeability of a minor dying by suicide following cyberbullying has become

undeniable and far too common. This risk for America’s youth is sadly now as obvious as speeding

down a residential street or waving a knife through a crowd. The Latin Defendants know all this,

as it is ubiquitously obvious to knowledgeable and trained school administrators and mental health

counselors. When they learn about cyberbullying of an already emotional and psychologically at-

risk minor child and do nothing about it (including withholding this from parents) or make it worse,

38
 as is the case here, (TAC, ¶¶ 60-61, 69-70, 123, 129-135, 189), suicide is a foreseeable and, indeed,

a likely outcome. See, e.g., O’Donnell, 2023 IL App (1st) 221736, ¶ 3.

FILED DATE: 3/15/2024 11:48 AM 2022L003763

2. Plaintiffs Plead the Latin Defendants’ Conduct Was the Cause in Fact
of Nate’s Death.

“The proximate cause element is a factual question for the jury to decide and has two

components: cause in fact and legal cause.” Stanphill, 2018 IL 122974, ¶ 34 (citing Turcios, 2015

IL 117962, ¶ 23); Solis v. BASF Corp., 2012 IL App (1st) 110875, ¶¶ 42-43. “‘Cause in fact’ is

established where there is reasonable certainty that the injury would not have occurred ‘but for’

the defendant’s conduct or where a defendant’s conduct was a ‘substantial factor’ in bringing about

the harm.” Stanphill, 2018 IL 122974, ¶ 34 (citing Turcios, 2015 IL 117962, ¶ 23).

a. The Latin Defendants omit the substantial factor test.

The Latin Defendants reference only the traditional “but for” test without acknowledging

the more modern “substantial factor” test also applied by Illinois courts and referenced in Stanphill

and Turcios. They argue that cause in fact is not plead here because multiple factors hypothetically

could have contributed to Nate’s death by suicide. (E.g., Latin Br. at 6-8.) But the Latin Defendants

mis-cite Turcios and Doe to suggest that those cases found that “suicide is the result of many

complex factors” which purportedly preclude the possibility of pleading cause in fact. (Latin Br.

at 7-8.) To the contrary, both cases addressed the legal cause, as addressed in Section I.B.1., supra;

neither case suggests that cause in fact is not pled or cannot be met in a case of suicide where there

are potential multiple factors. Nor could they.

As stated by the Illinois Supreme Court: “when, as here, there are multiple factors that may

have combined to cause the injury, we ask whether defendant’s conduct was a material element

and a substantial factor brining about the injury.” City of Chicago v. Beretta U.S.A. Corp., 213 Ill.

2d 351, 395 (2004). In Beretta U.S.A. Corp., cited by the Latin Defendants (Latin Br. at 9), the

39
 Supreme Court held that whether defendants’ conduct was a material element or substantial factor

in the harm was a question of fact for the jury. 13 Ill. 2d at 403-404. The Latin Defendants’
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disregard of the substantial factor analysis to suggest a pleading deficiency appears again in their

misplaced citation to a 1975 case addressing the cause of an accident on a directed verdict at trial

and before modern-day application of the substantial factor test. (Latin Br. at 8 (citing Rockett v.

Cheverolet Motor Div., 31 Ill. App. 3d 217, 222 (1st Dist. 1975).)

b. Cause in fact is a factual issue for the jury.

The Latin Defendants cite no case supporting dismissal for failure to plead cause in fact,

no doubt because cause in fact is a highly factual inquiry for the jury. Kramer v. Szczepaniak, 2018

IL App (1st) 171411, ¶ 39 (appellate court reversed Section 2-615 dismissal of plaintiff’s

negligence claim, finding that proximate cause is a question of fact); Lee v. Chicago Transit

Authority, 152 Ill. 2d 432, 455 (1992) (“[c]ause in fact can be established if a defendant’s conduct

can be deemed to be a substantial factor in bringing about the injury. If reasonable minds could

differ on whether the conduct was a substantial factor, the question is “for the jury to decide”);

Shehade v. Gerson, 148 Ill. App. 3d 1026, 1031 (1st Dist. 1986) (“[w]e must keep in mind that the

issue of proximate cause is generally one for the trier of fact and that a motion to dismiss should

only be granted where the plaintiff’s claim fails, as a matter of law, to allege those facts upon

which relief can be granted.”).

Nor would any such case support dismissal here. While Plaintiffs indeed plead the “but

for” standard by alleging that Nate would be alive if the Latin Defendants had not breached their

duties, including in the intentional and callous manner in which they did so, (TAC, ¶¶ 327-77,

399-405, 645-62; Exhibit A), Plaintiffs’ allegations also support that the Latin Defendants’

intentional and willful failures here—including based on their knowledge of Nate’s at-risk state—

40
 are material to and a substantial factor in bringing about Nate’s death (id. ¶¶ 95-96, 110-13, 136-

56, 166-73, 185-86, 234).

FILED DATE: 3/15/2024 11:48 AM 2022L003763

c. The Latin Defendants’ argument depends on improper speculation and

improper inferences.

The Latin Defendants’ speculation as to other factors that might have contributed to Nate’s

death by suicide is just that—speculation that cannot serve to undermine what Plaintiffs allege. At

this pleading stage, a plaintiff is not required to prove his case and need only allege sufficient facts

to state all elements of the cause of action. The Court’s evaluation of a motion to dismiss considers

only those facts apparent from the face of the complaint—not by Defendants’ speculation in their

motions. See Fox v. Seiden, 382 Ill. App. 3d 288, 299 (1st Dist. 2008) (appellate court reversing

Section 2-615 dismissal finding that the alleged facts, liberally construed, taken as true, and viewed

in the light most favorable to the plaintiff, sufficiently pled the element of proximate cause);

Reynolds v. Jimmy John’s Enterprises, 2013 IL App (4th) 120139, ¶ 25, citing Gillen v. State Farm

Mutual Automobile Insurance Co., 215 Ill. 2d 381, 385 (2005) (“[i]n ruling on a section 2-615

motion, the court considers only those facts apparent from the face of the pleadings, matters subject

to judicial notice, and judicial admissions in the record.”).

For example, the Latin Defendants speculate that perhaps Nate’s outside counselors might

have known about the cyberbullying. (Latin Br. at 6-7). But Plaintiffs specifically allege that they

have no information that Nate ever told any outside counselor about the cyberbullying at any time

(TAC, ¶¶ 374-375). This allegation, which must be taken as true at this stage, necessarily means

that no counselor revealed any cyberbullying to the Bronsteins, whether in the context of family

counseling sessions or through counseling records, where such significant information is typically

documented. (Id. ¶¶ 374-375, 406). Certainly, Plaintiffs did not have information to provide to the

outside counselors about the cyberbullying, given that the Latin Defendants intentionally withheld

41
 this information from the Bronsteins, who first learned of the cyberbullying two weeks after Nate’s

death, from another parent. (Id. ¶¶ 399.) The only inference to be drawn at the pleading stage is
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one in favor of Plaintiffs—that the outside counselors did not know of any cyberbullying. E.g.,

Krueger, 342 Ill. App. 3d at 470 (inference must be drawn in favor of non-moving party).

The Latin Defendants also posit that the KYS (kill yourself) message might be a factor in

Nate’s death, but this is not a factor divorced from the Latin Defendants’ failures. The reporting

of cyberbullying, even generally to Nate’s parents, would have resulted in the matter being

addressed by his parents and the counselors, including to understand the extent and impact of his

cyberbullying experience and to prevent further harm. (See TAC ¶¶ 376-77.) Similarly, the Latin

Defendants speculate that things like conflict with Nate’s parents, the eventual start of classes at

Parker, and counseling sessions might also be factors in Nate’s death, (Latin Br. at 6-8), but these

speculations would also stem from the Latin Defendants’ own breaches.

As Kranz stated to Mrs. Bronstein, Nate was likely to blame his parents about Latin because

it made him feel better. (TAC, ¶¶ 141, 145, 167, 392-93.) The reasonable inference at this stage is

that, after the Latin Defendants left Nate with a cyberbullying injury made worse by them, Nate

had no one toward whom to direct his anger about his Latin experience except his parents, which

he did, but his parents did not understand why until two weeks after his death. (Id.) E.g., Krueger,

342 Ill. App. 3d at 470 (reasonable inferences drawn in favor of non-movant). That Plaintiffs allege

Nate was calm in his final counseling session but continued to blame his parents about his horrible

Latin experience, (TAC ¶¶ 406.), does not help the Latin Defendants but supports only that his

experience at Latin—which pointedly included the callous conduct of the Latin Defendants—

weighed on Nate’s mind shortly before he died. (Id. ¶ 405, 429.) Similarly, while anxiety over

starting classes back at Parker or interacting with peers are merely improper speculation by the

42
 Latin Defendants at this time, the only inference to draw regarding such speculative anxiety would

necessarily be compounded because of the recent and severe cyberbullying that Latin denied and
FILED DATE: 3/15/2024 11:48 AM 2022L003763

for which it blamed Nate for his own victimhood. E.g., Krueger, 342 Ill. App. 3d at 470.

Finally, the Latin Defendants self-servingly declare that the passage of time between Nate

reporting the cyberbullying to Hennessy (on December 12-13, 2021) and his death on January 13,

2022 makes the “alleged conduct [] too remote and attenuated to have rendered any causal link

beyond speculative.” (Latin Br. at 7.) Aside of the disgrace of hiding behind 31 days of a child’s

anguish, the Latin Defendants cite zero legal authority for this point. Nor can they because this

will be a fact issue for the jury. E.g., Fox, 382 Ill. App. 3d at 299; Repinski 85 Ill. App. 3d at 26.

In Repinski, evidence of a suicide attempt more than three months after the event alleged

to have triggered the suicide attempt was admissible at trial. 85 Ill. App. 3d at 26. Likewise, here,

the jury must decide whether and how it matters that one month passed, during winter break before

any return to a school for Nate, following the Latin Defendants’ discard of Nate. The jury must

weigh the fact that, on the evening of December 13, 2021, Nate researched suicide and thereafter

internalized the cyberbullying for four weeks until the night of his death, at a time when he was

still complaining about the Latin experience, but without revealing the specifics of the

cyberbullying injury that the Latin Defendants callously exacerbated by denying it occurred. (TAC

¶¶ 329-31, 342, 347-50, 361-66.) See also Kramer, 2018 IL App (1st) 171411, ¶ 39.

C. There Is No Immunity for the Latin Defendants for Nate’s Wrongful Death
(or Any Other Claim).

School liability cases in Illinois often address immunity defenses under the Tort Immunity

Act, the Illinois School Code, or both. This dual argument is reflected in cases cited by the Latin

Defendants. (Latin Br. at 12 (citing Henrich v. Libertyville High School, 186 Ill. 2d 381, 389-92

(1998) (no immunity defense at pleading stage under School Code, but immunity under Act).)

43
 Latin, however, is an independent private school; none of its personnel are public employees.

(TAC, ¶ 16.) As such, the Tort Immunity Act does not apply to the Latin Defendants and legal
FILED DATE: 3/15/2024 11:48 AM 2022L003763

authority and rationale addressing immunity under that Act are simply inapplicable here. See, e.g.,

Brugger v. Joseph Academy, Inc., 326 Ill. App. 3d 328, 332 (1st Dist. 2001) (Tort Immunity Act

does not apply to private schools); Arteman v. Clinton Community Unit School District No. 15,

198 Ill. 2d 475, 480-81 (2002) (immunity provisions under School Code and Tort Immunity Act

are “independent enactments” and one does not derive from the other) (quoting Cooney v. Society

of Mt. Carmel, 75 Ill.2d 430, 434 (1979)).)

Though sometimes mixing the immunity concepts in their briefing,32 the Latin Defendants

argue that immunity here falls under the “maintenance of discipline” provision in the Illinois

School Code, 105 ILCS 5/34-84a, (“Section 34-84a”). (Latin Br. at § II.C.) Immunity under

Section 34-84a is a judicial construct that flows from the in loco parentis concept, which

immunizes parents for their negligent conduct toward their children, but not their willful and

wanton conduct. E.g., Kobylanski, 63 Ill. 2d at 168, 170.

The immunity defense under the School Code is an affirmative defense. Id. at 168

(addressing affirmative defense under School Code at trial); Doe v. Lawrence Hall Youth Services,

2012 IL App (1st) 103758, ¶¶ 16-18 (addressing affirmative defense under School Code immunity

provisions). As an affirmative defense, the burden of proof rests with the defendant. See Doe v.

University of Chicago Medical Center, 2015 IL App (1st) 133735, ¶ 37. Here, the Latin

32
Keeping the Tort Immunity Act analysis distinct from the School Code is important because Illinois cases
“do not require equal treatment of public and private schools beyond application of the tort liability
provisions of the School Code”; rather, the “General Assembly is free to treat public schools differently
from private schools by including only public schools in the provisions of the [] Tort Immunity Act.” See
Cooney, 75 Ill.2d at 436.

44
 Defendants’ fall far short of meeting their burden at the pleadings stage because Section 34-84a

does not apply and because willful and wanton conduct is pled anyway.
FILED DATE: 3/15/2024 11:48 AM 2022L003763

D. The Latin Defendants Fail to Meet Their Burden for Immunity Under the
School Code.

The Latin Defendants present a one-page recitation of Section 34-84a and conclude that it

provides blanket immunity for schools and their personnel, with no analysis of the facts pled in

the TAC. (Latin Br. at 11-12.) There are, however, limitations to such immunity that apply here.

First, Section 34-84a does not impose nor immunize school personnel from conduct that

is not derived from in loco parentis status in the first place. In other words, where the conduct at

issue falls outside the scope of the parental role, there is no basis for anyone to have immunity

derived from in loco parentis status. See Cates v. Cates, 156 Ill. 2d 76, 90-94 (1993) (recognizing

exceptions to the parental immunity doctrine and that “immunity is insupportable as applied to

conduct outside the parent-child relationship”); see also Wallace v. Smyth, 203 Ill. 2d 441, 451-52

(2002) (residential child care facility and its employees were not in acting in loco parentis when

placing child in four-hour restraint and pinning child to the floor including because parents do not

“discipline” children by such means); Cummings v. Jackson, 57 Ill. App. 3d 68, 69-73 (4th Dist.

1978) (no immunity for parent’s negligence as property owner leading to her child’s injury).

Second, Section 34-84a does not provide for immunity for all conduct for which parents

may have immunity. Section 34-84a of the School Code imposes an obligation upon individuals—

specifically teachers, certificated educational employees, and any other person providing a related

service for or with respect to a student—to “maintain discipline in the schools, including school

grounds which are owned or leased by the board and used for school purposes and activities.” 105

ILCS 5/34-84a. Section 34-84a then gives these individuals limited immunity as follows:

45
 In all matters relating to the discipline in and conduct of the schools and the school
children, [the individuals] stand in the relation of parents and guardians to the
pupils. This relationship shall extend to all activities connected with the school
FILED DATE: 3/15/2024 11:48 AM 2022L003763

program, including all athletic and extracurricular programs, and may be exercised
at any time for the safety and supervision of the pupils in the absence of their
parents or guardians.

Id. (emp. added).

With these limitations, in loco parentis immunity applies only to individuals engaging

directly with the students. See Sidwell v. Griggsville Community Unit School District No. 4, 146

Ill. 2d 467, 472 (1992) (immunity defense applies only to individual persons engaging directly

with student; school entity is entitled only to vicarious defense). The parental immunity applies

only to “activities connected with the school program.” See O’Brien v. Township High School

District, 83 Ill. 2d 462, 467 (1980) (unauthorized medical treatment of student directed by school

personnel was not connected with school program, and school personnel do not stand in loco

parentis to students for purposes of parental health care decision-making). Further, the parental

immunity applies only to the exercise of an individual’s “personal supervision and control over

the conduct or physical movement of the student.” See Gerrity v. Beatty, 71 Ill. 2d 47, 51-52 (1978)

(school district’s furnishing of inadequate, ill fitting, and defective safety equipment was “separate

function” from supervision and control over conduct or physical movement of student).

Here, the Latin Defendants’ conduct either falls outside the scope of the parental role in

the first place or outside of the scope of Section 34-84a; thus, the Latin Defendants fail to meet

their burden on any School Code immunity defense at the pleading stage.

1. The Latin Defendants’ duties under the Bullying Prevention Act are
not derived from in loco parentis status and do not fall within the scope
of immunity under the School Code.

As part of their Wrongful Death claim, Plaintiffs allege that duties are imposed upon the

Latin Defendants by the Bullying Prevention Act that were breached by them, including duties to

46
 inform parents and to conduct an investigation. (TAC, ¶¶ at 645.d-e, 657.d.) These are statutorily

created duties imposed upon school entities and the school personnel carrying out those duties,
FILED DATE: 3/15/2024 11:48 AM 2022L003763

105 ILCS 5/27-23.7. They do not flow from, and are not triggered by, the parental role. Thus, the

Latin Defendants’ duties under the Act are not protected by any in loco parentis status.

In Gerrity, the Illinois Supreme Court addressed a school district’s furnishing of

inadequate, ill-fitting, and defective safety equipment. 71 Ill. 2d at 51-52. The Court held that

furnishing equipment was a “separate function” from teacher-student supervision i.e., parental

supervision. Id. Thereafter, Illinois courts came to view Gerrity and its progeny as setting out an

affirmative duty of school entities to furnish equipment to prevent serious injuries. See Arteman v.

Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 480-81 (2002) (addressing school

districts’ affirmative duty to furnish equipment to prevent serious injuries following Gerrity).

Similarly here, the Latin Defendants have affirmative duties to comply with the mandates

of the Bullying Prevention Act. 105 ILCS 5/27-23.7. As a school, Latin must “create, maintain,

and implement a policy on bullying” that contains all mandated language and procedures set out

in the statute. Id. Effectively, Latin must furnish a policy in the same way a school board must

furnish equipment; doing so is a separate function from supervising a student. Further, Latin’s

personnel must themselves follow the mandates of the statute, necessarily to be set out in a

compliant policy, by informing parents of a bullying report and by investigating the bullying report

and keeping parents informed. These mandates are also a separate function from supervising a

student and are not derived from any parental role. As in Gerrity, no claim of parental immunity

can absolve the Latin Defendants of their breach of duties here.

Certainly, nothing in the language of Section 34-84a suggests that it confers in loco

parentis status upon schools and their personnel when they are carrying out (or failing to carry

47
 out) non-supervisory duties mandated by statutory provisions that do not apply to parents and are

outside the scope of parental conduct. The First District has said that in loco parentis “embodies
FILED DATE: 3/15/2024 11:48 AM 2022L003763

the two ideas of assuming the parental status and discharging the parental duties.” Klabis v. Hoyer

(People ex rel. Smilga), 345 Ill. App. 365, 369-70 (1st Dist. 1952). It would make no sense that

statutory obligations requiring schools to interact with a student’s actual parent—here, regarding

the provision of notice and in connection with the required investigation, 105 ILCS 5/27-23.7—

would give in loco parentis status to the school and its personnel. That is, school personnel cannot

logically take the place of the parent for the purpose of engaging with the parent.

Moreover, even if a school and its personnel were entitled to parental immunity with

respect to the mandates of the Bullying Prevention Act, there is no direct immunity defense for a

school entity. See Gerrity, 71 Ill. 2d at 50-51; Sidwell, 146 Ill. 2d at 472; cf. Wallace, 203 Ill. 2d

at 452-53 (declining to extend parental immunity to a corporate entity and its agents). And, there

is no vicarious immunity defense for a school entity when the wrongful conduct of its agents is not

tied to the direct supervision of the conduct and physical movement of the student. Gerrity, 71 Ill.

2d at 50-51; Thomas v. Chicago Bd. of Ed., 77 Ill.2d 165, 171 (1979) (teacher/coach supervision

over student use of safety equipment is distinct from school district’s furnishing of equipment).

Plaintiffs allege here that during Nate’s time at the school, Latin, led by Head of School

Dunn, failed to create, maintain, or implement the bullying prevention policy required by the

Bullying Prevention Act, specifically lacking the mandatory parental notice and investigation

requirements of the statute.33 (TAC, ¶¶ 82, 84-86, 582-603, 606-624.) This failure by Latin, under

33
In Grant v. Board of Trustees, 286 Ill. App. 3d 642, 645 (3rd Dist. 1997), cited by the Latin Defendants
in addressing willful and wanton allegations (Latin Br. at 14), plaintiffs argued that the school breached a
duty by failing to train on suicide intervention based on a School Code provision empowering, but not
mandating, such training. In stark contrast here, the Bullying Prevention Act mandates that a school create,
maintain, and implement a bullying prevention policy while at the same time mandating what requirements

48
 Dunn’s direction, is analogous to a public-school district’s breach of its affirmative duty to furnish

proper safety equipment to students. See Gerrity and Arteman, supra. Both sets of duties are
FILED DATE: 3/15/2024 11:48 AM 2022L003763

imposed directly upon the school and its agents carrying out the duties and, therefore, cannot be

treated as assumed parental duties subject to a parental immunity defense.

2. Schools do not stand in loco parentis to students with respect to health

care decisions; interfering with and depriving parents of their health
care decision-making authority is not an activity connected with the
school program.

The Latin Defendants have the burden here to prove their affirmative defense of parental

immunity. University of Chicago Medical Center, 2015 IL App (1st) 133735, ¶ 37. They fail to

meet that burden, including because they do not and cannot establish that they stood in loco

parentis with Nate regarding health care decision-making when they interfered with, and deprived

the Bronsteins of, their parental discretion with respect to Nate’s health care. See Cates, 156 Ill.

2d at 105. As recognized in Cates, parental discretion includes the categories of “maintenance of

the family home, medical treatment, and supervision of the child.” Id. Parental discretion under

Section 34-84a applies only to the supervision category, 105 ILCS 5/34-84a. There is no transfer

of parental discretion regarding any medical treatment decision-making other than first aid

rendered while in the supervisory function. O’Brien, 83 Ill. 2d at 467-68; Halper v. Vayo, 210 Ill.

App. 3d 81, 89 (2nd Dist. 1991).

In O’Brien, the Illinois Supreme Court made clear that in loco parentis status “is limited

to activities connected with the school program.” 83 Ill. 2d at 467-68. O’Brien addressed a

student’s initial physical injury occurring outside of the school context that led to sepsis which

was subsequently treated by a student assistant trainer for the football team at the direction of

must be included in the policy. See 105 ILCS 5/27-23.7; see also https://www.isbe.net/Pages/Bullying-
Prevention.aspx (all school anti-bullying policies “must include all policy items required under statute”).

49
 school personnel, leading to severe and permanent injuries as a result of the failure of treatment.

Id. at 465-66, 470-71. The Supreme Court stated that “[a]ny decision as to the necessity of medical
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treatment, at least of the type alleged to have been administered here, was for the plaintiff’s parents,

rather than his teachers, to make in the first instance.” Id. at 467-68. While administering first aid

can be activity connected with the school program, depriving parents of decision-making authority

regarding a child’s medical health care is not. Id.

O’Brien stands for the proposition that, under such circumstances, teachers may not
usurp the decision-making authority of parents in a matter as fundamental as a
child’s medical care. It should not be read as barring teachers from administering
first aid to students under any circumstances.

Halper, 210 Ill. App. 3d at 89 (2nd Dist. 1991) (distinguishing treating injury suffered in a school

activity immediately after injury from depriving parents of health care decision-making).

In 1997, the Third District sought to distinguish O’Brien in Grant, 286 Ill. App. 3d 642, a

case heavily relied upon by the Latin Defendants. (Latin Br. at 14.) The plaintiff in Grant argued

that notice of needed drug overdose treatment without notice of her child’s stated suicidal

intentions was not an activity connected with a school program because, as in O’Brien, the school

personnel’s limited notice interfered with and deprived the parent of her parental health care

decision-making. Grant, 286 Ill. App. 3d at 646. The Third District disagreed, stating as its

rationale that the suicide threats were made during school hours on school property, whereas the

initial injury in O’Brien occurred off school property during an activity unrelated to the school. Id.

However, the Third District appears to have not considered that the unauthorized medical care at

issue in O’Brien was rendered on school grounds by a student trainer for a school program at the

direction of school personnel. O’Brien, 83 Ill. 2d at 465-66, 470-71.

Moreover, O’Brien holds clearly that unauthorized medical care is not an activity

connected with a school program—even when directed by school personnel on school grounds—

50
 because it interferes with parental health care decision-making. Id. at 467-68. Said differently,

health care decision-making is never a duty imposed upon school personnel and, therefore, those
FILED DATE: 3/15/2024 11:48 AM 2022L003763

personnel never stand in loco parentis regarding such decision-making; they have no immunity

when they interfere with, usurp, and deprive parents of their health care decision-making.

Consequently, it should not matter where or how school personnel’s interference with parental

health care decision-making occurs, as there can never be parental immunity for the school

personnel for this tort. Regardless, because the interference in O’Brien and Grant both took place

on school grounds, the Third District’s rationale for distinguishing O’Brien cannot be reconciled

with the facts. Regardless, the Supreme Court’s decision in O’Brien necessarily controls the

inconsistency here. E.g., Grundy v. Lincoln Park Zoo, 2011 IL App (1st) 102686, ¶ 15 (Supreme

Court decision must be followed over appellate court decision in conflict); Robinson v. Johnson,

346 Ill. App. 3d 895, 907 (1st Dist. 2004) (appellate court cannot refuse to follow Supreme Court).

O’Brien is on point here. Like the student in O’Brien, Nate suffered injury (albeit one that

was psychological and emotional rather than physical) from cyberbullying occurring off campus,

which became known to school personnel, including when Nate reported the cyberbullying. (TAC,

¶¶ 314-26.) Like the school personnel in O’Brien, Latin’s school personnel (Hennessy, Kranz,

Knoche, Von Ogden and Dunn) precluded the Bronsteins from exercising their parental health care

decision-making as to Nate’s injuries from cyberbullying, which the Latin Defendants knew was

not known to the Bronsteins. (Id. ¶¶ 327-42.) The only difference, which is irrelevant to this

analysis, is that the school personnel in O’Brien attempted to help the student, however ill-

conceived their efforts, whereas the Latin Defendants abjectly failed to help Nate and harmed him

further, in service of their selfish motivations. See supra at 6-11.

51
 Applying O’Brien, school personnel do not stand in loco parentis to provide consent34 for,

or to otherwise interfere with or deprive, a minor student’s medical care. Accordingly, activity that
FILED DATE: 3/15/2024 11:48 AM 2022L003763

interferes with and deprives parental health care decision-making, which is what Plaintiffs allege

here (TAC, ¶¶ 644-682), is not activity connected with the school program under Section 34-84a.

3. Section 34-84a also does not apply because Plaintiffs do not allege a
failure in the personal supervision and control over the conduct and
physical movements of Nate while on school grounds.

In Gerrity, the Illinois Supreme Court limited Section 34-84a to apply in situations “arising

out of the teacher-student [i.e., direct] relationship in matters relating to the teacher’s personal

supervision and control of the conduct or physical movement of a student.” 71 Ill.2d at 52; see

also Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 480-81 (2002)

(recognizing holding and continued applicability of Gerrity). The Latin Defendant cite cases both

distinguished in, and easily distinguishable from, Gerrity because they concern the direct, personal

supervision and control of the conduct or physical movement of the student. (Latin Br. at 11-12.)

The Latin Defendants cite Kobylanski and Henrich, in which the Supreme Court addressed

gym teachers’ direct supervision of students’ physical conduct and movement in gym class. (Latin

Br. at 11-12); see also Kobylanski, 63 Ill. 2d at 168; Henrich, 186 Ill. 2d at 394 (applying Tort

Immunity Act while finding no School Code immunity due to willful and wanton allegations). The

Latin Defendants also cite Thomas v. Chicago Bd. of Ed., 77 Ill.2d 165, 171 (1979), decided one

year after Gerrity, where the Court found that Section 34-84a applied when teachers and coaches

(individuals) were supervising a student in using safety equipment, which was distinct from the

school district’s furnishing of equipment.

34
The general rule is that a patient must consent to medical treatment of any kind. E.g., V.H. v. K.E.J. (In
re Estate of K.E.J.), 382 Ill. App. 3d 401, 413 (1st Dist. 2008). Regarding minors, a parent “may consent
to the performance upon his or her child of a health care service.” 410 ILCS 210/2; 105 ILCS 129/15
(referencing parental consent for health care services).

52
 The Latin Defendants rely on Lawrence Hall Youth Servs., 2012 IL App (1st) 103758, ¶¶ 4-

7, addressing a student in a 24-hour per day, 7-day a week program who asserted claims based on
FILED DATE: 3/15/2024 11:48 AM 2022L003763

a teacher’s conduct in taking the student from school grounds to drink alcohol, smoke marijuana

and engage in sexual activity. After finding that the allegations addressing the teacher’s

misconduct demonstrated that she was acting outside the scope of her employment, the trial court

considered the allegations lodged against the school for the conduct of its other employees in

negligently supervising the student on the school grounds by, inter alia, preventing him from

leaving the school grounds to engage in [illicit] activities. Id. at ¶¶ 23, 30-31. School Code

immunity applied to the other employees because the allegations addressed their direct supervision

over the physical movement of the student while on the school grounds. Id. at ¶¶ 31-33.

Finally, the Latin Defendants later cite Grant in their discussion of willful and wanton

conduct. The facts of Grant largely relate to an individual counselor’s alleged failures in

controlling the physical conduct of the student who had threatened suicide while on school

grounds, namely failing to call an ambulance or other medical personnel to the school and failing

to tell the student’s mother of the suicide threats upon her arrival at the school so that she could

call an ambulance or seek medical attention, instead of putting the son in her own car and leaving

the school grounds. 286 Ill. App. 3d at 644-47.35

Each of these cases is factually distinguishable in ways that preclude application of Section

34-84a immunity here. While this case involves physical harm to Nate resulting from

psychological trauma, the crux of the allegations here is not that the Latin Defendants failed in

exercising supervision and control over Nate or his physical movements while on school grounds

35
Some of the facts of Grant suggest direct supervision over the physical movement of the student so as to
trigger Section 34-84a; however, to the extent the claim raised a failure by school personnel to notify the
parent of the suicidal intentions of her child, the Third District’s application of Section 34-84a directly
conflicts with the Illinois Supreme Court’s holding in O’Brien. See supra at 50-51.

53
 following the cyberbullying report. Instead, the failure to inform the Bronsteins of the

cyberbullying injury—so that the Bronsteins could ensure proper medical care for their son’s
FILED DATE: 3/15/2024 11:48 AM 2022L003763

injury, which unbeknownst them was exacerbated by the willful and callous conduct of the Latin

Defendants—is at the heart of this case. (TAC, ¶¶ 314-66, 404-06.) As discussed above, in this

context, the Latin Defendants never had in loco parentis status which would entitle them to take

on, interfere with and/or deprive Nate’s parents of, parental discretion with respect to health care

decisions for their child, and then claim immunity for doing so. See O’Brien, 83 Ill. 2d at 467-71.

For all these reasons, this Court should deny the Latin Defendants’ argument for summary

dismissal of Count I based on the affirmative defense of immunity for which the Latin Defendants

fall far short of meeting their burden.

E. The Latin Defendants Fail to Meet Their Burden on the Immunity Affirmative
Defense, Including Because Plaintiffs Allege Willful and Wanton Conduct.

Even if general parental immunity for simple negligence under Section 34-84a were

applicable in this case, Plaintiffs plead willful and wanton conduct on the part of the Latin

Defendants. “[W]illful and wanton misconduct is regarded as an aggravated form negligence and

as essentially a hybrid between conduct that is considered negligent and conduct that is considered

intentionally tortious.” Davis v. Village of Maywood, 2023 IL App (1st) 211373, ¶ 16. To state a

willful and wanton claim requires pleading “the basic elements of a negligence claim” and “either

a conscious disregard for the plaintiff’s welfare or a deliberate intention to harm.” Id.

In the TAC, the Latin Defendants’ conscious disregard for Nate’s welfare is addressed in

multiple ways, including: (1) the purposeful refusal to create, implement and maintain a bullying

prevention policy with the mandates set out in the statute, (TAC, ¶¶ 582-635); supra at 6-7;

(2) the general practice of prioritizing Latin’s reputation above all else, including by keeping

information from parents (the “no parents” practices), which enables Latin to quash and control

54
 student conflict and disputes through victim-blaming and manipulation of children, (TAC, ¶¶ 27-

55 (setting out Latin’s “No Parents” policy), ¶¶ 56-70, 636-43 (Latin’s history and continued
FILED DATE: 3/15/2024 11:48 AM 2022L003763

practice of indifference to bullying, student wellbeing)), supra at 7-8; (3) the conduct of the Latin

Defendants prior to the week of December 12, 2021, which reflects the knowledge they had about

Nate, including his emotional and psychological fragility, which adds to the level of conscious

disregard when the Latin Defendants did what they did during the week of December 12, 2021,

(TAC, ¶¶ 482-507, 518-547), supra at 4-6, 36-38; and (4) the conduct of the Latin Defendants

during the week of December 12, 2021, when, for the sake of Latin’s reputation and to avoid a

cyberbullying scandal, Latin did not inform the Bronsteins of Nate’s cyberbullying report or injury

and instead told Nate a cruel and harmful narrative to deny the cyberbullying happened and placed

the blame on him, (TAC, ¶¶ 170-203, 329-31, 347-50, 361-66); supra at 6-11.36

The Latin Defendants ignore out of hand the more than 600 paragraphs of well-pled facts

in the TAC setting out this conduct, which must be taken as true with all inferences made in favor

of Plaintiffs, as well as the 38 well-grounded allegations made on information and belief, Exhibit

A. (Latin Br. at 13.) Instead, the Latin Defendants attempt to cherry-pick certain allegations to

improperly draw inferences in their own favor, which in any event are contradicted by express

allegations in the TAC. E.g., Krueger, 342 Ill. App. 3d at 470.

For example, the Latin Defendants argue they “responded thoughtfully and swiftly to Mrs.

Bronstein’s requests,” during October 8-20, 2021. (E.g., Latin Br. at 13 (citing TAC, ¶¶ 146-49,

199).) Not only do these defendants curiously skip over 30 paragraphs of allegations that put those

communications in context, they completely miss the point. The issue is not whether any

36
While the conduct prior to the cyberbullying report also underlies the professional malpractice claim
against Knoche and Kranz, the point for purposes of wrongful death is more focused on the knowledge and
information known to the Latin Defendants that makes their conduct during the week of December 12, 2021
even more willful and wanton.

55
 communications during Fall 2021 might have been “thoughtful” (and in totality, they were not),

but that those communications and events informed the minds of the individuals directly engaged
FILED DATE: 3/15/2024 11:48 AM 2022L003763

with Nate and his parents, including Kranz, Hennessy, Knoche and, eventually, Von Ogden. (TAC,

¶¶ 146-153, 155, 166-168, 176, 197, 233-39, 329-30, 349, 401.) The issue is that they had this

knowledge about Nate when he engaged with Hennessy on December 12-13, 2021, and they acted

as they did to quash his cyberbullying report to protect Latin’s reputation and avoid a cyberbullying

scandal. See supra, 6-11.

Latin further argues that it “responded thoughtfully and swiftly . . . to Nate’s only

communication with Latin School about one alleged cyberbullying incident.” (Latin Br. at 13.)

While Hennessy did initially respond to Nate “swiftly,” there is no allegation that she was

“thoughtful.” All of the Latin Defendants’ actions were in furtherance of their plan to quash Nate’s

cyberbullying report to protect Latin’s reputation and avoid a cyberbullying scandal, not in any

good-faith effort to help him. See supra, 6-11. To the extent Hennessy and the Latin Defendants

could be described as “thoughtful,” they were thinking only of themselves, acting with reckless

disregard for the health and safety of Nate. (TAC, ¶¶ 328-333, 341, 349, 358, 375, 399, 401, 404,

442-43, 512, 596, 603 (failure to notify), 333-341, 346, 348 (failure to investigate), 329-31, 347-

50, 361-66 (rejecting, denying and blaming Nate), 329-330, 349-50, 463, 480-81 (Latin protecting

reputation above Nate’s safety).)

Furthermore, a Section 2-615 motion is not a place for Latin to insert its disputed view of

the facts. (Compare Latin Br. at 13 (summarily declaring allegations “misleading, incomplete,

speculative and false”) with Seals v. Rush University Medical Center, 2021 IL App (1st) 200558,

¶ 13 (allegations are taken as true on Section 2-615 motion to dismiss).) Rather, the Court must

consider the totality of Plaintiffs’ allegations and the reasonable inferences drawn therefrom. E.g.,

56
 Davis, 2023 IL App (1st) 211373, ¶¶ 13, 29 (courts construe allegations “in the light most favorable

to the plaintiff” and totality of circumstances determines whether conduct is willful and wanton).
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Proceeding as the Illinois courts direct—by accepting the more than 600 factual allegations

in the TAC as true, and recognizing the information and belief allegations are properly supported,

Exhibit A—there should be no question that willful and wanton misconduct is pled here. The

determination of whether a defendant’s “actions amount to willful and wanton misconduct is

usually a question of fact to be determined by a jury, but the preliminary question of whether

allegations of willful and wanton misconduct are sufficient to state a cause of action is a question

of law to be determined by a court.” Davis, 2023 IL App (1st) 211373, ¶ 28. “The term ‘willful

and wanton’ includes a range of mental states, from actual or deliberate intent to cause harm, to

conscious disregard for the safety of others or their property, to utter indifference for the safety or

property of others.” Harris v. Thompson, 2012 IL 112525, ¶ 41 (quoting Murray v. Chicago Youth

Center, 224 Ill. 2d 213, 235 (2007).) “Whether conduct is willful and wanton depends on the

circumstances of each case.” Davis, 2023 IL App (1st) 211373, ¶ 29 (internal citations and

quotations omitted).

As reiterated by the First District as recently as December 2023, there are three categories

of willful and wanton pleadings. Id., ¶ 30.

At one extreme are alleged circumstances that are so benign as to clearly be, as a
matter of law, below the theoretical minimum for willful and wanton conduct. At
the other extreme are circumstances so egregious that one could say, as a matter of
law, that the [defendant] acted willfully and wantonly. The third scenario are those
circumstances where the question of willful and wanton conduct is the subject of
reasonable argument. Where reasonable minds might draw different inferences
from the same undisputed facts, it is the role of the jury to decide whether
[defendant’s] exercise of discretion crossed a line and became willful and
wanton. It is only the third category of cases that cannot be decided as a matter of
law and must be turned over to a jury.

57
 Davis, 2023 IL App (1st) 211373, ¶ 30 (internal citations and quotations omitted). While Plaintiffs

certainly view this case as one where the Latin Defendants acted willfully and wantonly as a matter
FILED DATE: 3/15/2024 11:48 AM 2022L003763

of law, that standard is not required to warrant denial of the Latin Defendants’ motion. Rather, it

is enough that the circumstances presented here are, at a minimum, “circumstances where the

question of willful and wanton conduct is the subject of reasonable argument” and, therefore, the

question must be turned over to a jury. Id.

Here, Plaintiffs plead, and it is certainly the subject of reasonable argument, that the Latin

Defendants acted with conscious disregard or indifference for Nate’s safety or that they had

knowledge that their conduct posed a high probability of serious physical harm to Nate. See supra

at 6-11 (discussing allegations in TAC). In response to the voluminous TAC, the Latin Defendants

rely on Grant, declare its allegations less “speculative” and conclude that because willful and

wanton conduct was not found to have been sufficiently pled in that case, it cannot possibly be

pled here. (Latin Br. at 14.)

It is important to consider that the First District would likely view Grant differently today.

Indeed, Grant was decided by a panel of three Justices for the Third District, one of whom

dissented on the issue of whether willful and wanton conduct was pled, and found that the matter

should have gone to the jury. See Grant v. Board of Trustees, 286 Ill. App. 3d 642, 647-48 (3rd

Dist. 1997) (J. Breslin, dissenting). The dissent alone demonstrates that willful and wanton

allegations were sufficiently plead under the standard applied by the First District in December

2023, because it shows those three reasonable minds indeed drew different inferences; therefore,

the question should go to a jury. Davis, 2023 IL App (1st) 211373, ¶ 30.

The allegations addressing the “mental state” of the counselor in Grant were bare bones

compared to the allegations in the TAC. The totality of the fact allegations recited in Grant on the

58
 issue of the counselor’s knowledge and “mental state” are that other students reported the subject

student’s stated suicide intentions to the counselor, the counselor questioned the student and then
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called his mother and advised her to take the student to the hospital for drug overdose treatment

with no mention of the suicide threats conveyed by the other students, even though the counselor

knew or should have known that great caution should be used in dealing with teenagers with

suicidal tendencies. Grant, 286 Ill. App. 3d at 643-44, 647. In response to the motion to dismiss,

the plaintiff argued that the counselor’s non-disclosure regarding the suicidal intentions was itself

an intentional act or omission. Id., at 647. The Third District found that if the counselor “had failed

to take any action . . . her inaction could constitute wilful [sic] and wanton conduct,” but that the

counselor contacted the mother and told her to take the student to the hospital. Id.37

In stark contrast here, the specific factual allegations are that no one at Latin told the

Bronsteins anything about their child’s cyberbullying report (even re-characterized as an undefined

“social media incident”), his emotional and psychological injury from the cyberbullying, or his

inherent risk of self-inflicted injury or suicide from the cyberbullying, particularly if ignored.

(TAC, ¶¶ 328-333, 341, 349, 358, 375, 399, 401, 404, 442-43, 512, 596, 603 (failure to notify),

333-341, 346, 348 (failure to investigate), 60-61, 69-70, 123, 129-135, 189 (Latin’s knowledge of

foreseeable risks of harm from cyberbullying).) No information of any sort was provided to the

37
The Latin Defendants also cite to Knapp v. Hill, where the totality of the allegations was “that the school
district was derelict in providing adequate supervision of the students” with respect to the school personnel
supervising shop class. 276 Ill. App. 3d 376, 383-84 (1st Dist. 1995). The First District noted that “a
teacher’s mere act of leaving children unsupervised will not be sufficient to establish wilful [sic] and wanton
misconduct.” Id. (internal citations and quotations omitted). Other than setting out the standards for willful
and wanton conduct, which do not appear to be in dispute, Knapp provides no insight here. As the courts
have repeatedly stated, “[w]hether conduct is willful and wanton depends on the circumstances of each
case.” Davis, 2023 IL App (1st) 211373, ¶ 29 (internal citations and quotations omitted). The case before
this Court does not involve supervision of students in class and Knapp in no way addresses the failure to
inform parents so as to interfere with parental discretion over health care decision-making.

59
 Bronsteins to put them on notice of the cyberbullying injury so that they could address appropriate

medical care for their child. (Id. See also TAC, ¶¶ 374-77, 399.) Instead, the Latin Defendants
FILED DATE: 3/15/2024 11:48 AM 2022L003763

engaged in an intentional, concerted effort not to inform the Bronsteins—in violation of the Act—

with Von Ogden’s excuse being that the Latin Defendants did not want to deal with Mrs. Bronstein

and Nate would soon be leaving the school anyway. (TAC, ¶¶ 196-202, 254, 401.) But the Latin

Defendants did not stop at a failure to act. They proceeded to manipulate or encourage Nate not to

inform his parents himself, while also recharacterizing classic cyberbullying as some other type of

incident for which Nate himself was to blame. (TAC, ¶¶ 329-31, 347-50, 361-66.) The ultimate

motivation for all of the Latin Defendants’ actions was not just laziness, but to protect the school’s

reputation and avoid a cyberbullying scandal. See supra at 7-11.

In addition to each Latin Defendant having information to be knowledgeable about Nate’s

cyberbullying report and to direct or acquiesce in the plan to bury it, each Latin Defendant also

had the knowledge, skill, and training to know that their actions in dismissing Nate’s cyberbullying

injury, making it worse by denying it and blaming Nate, and hiding it from his parents so as to

interfere with their parental discretion in health care decision-making, would exacerbate Nate’s

injury and make suicide even more likely. (TAC, ¶¶ 60-61, 69-70, 110-113, 123, 129-156, 166-

68, 189, 331, 347-48, 361-66.) Accordingly, Plaintiffs plead, and it is certainly the subject of

reasonable argument, that each of the Latin Defendants acted with conscious disregard or

indifference for Nate’s safety or that they had knowledge that their conduct posed a high

probability of serious physical harm to Nate. (Id.) See also e.g., Krivitskie v. Cramlett, 301 Ill.

App. 3d 705, 708-09 (2nd Dist. 1998) (reversing dismissal because driving at high rate of speed in

the rain constituted conscious disregard for driver’s safety and safety of others).

60
 II. PLAINTIFFS PLEAD A SURVIVAL CLAIM UNDER THE BULLYING
PREVENTION ACT AGAINST THE LATIN DEFENDANTS (COUNT II).
FILED DATE: 3/15/2024 11:48 AM 2022L003763

In Count II, Plaintiffs assert claims against the Latin Defendants for violations of the

Bullying Prevention Act, including for Latin’s failure to “create, maintain, and implement” a

compliant bullying prevention policy during Nate’s time at Latin, and for each of the Latin

Defendants failure to inform the Bronsteins of Nate’s cyberbullying report and their failure to

conduct any investigation into the cyberbullying and keep the Bronsteins informed of said

investigation. (TAC, Count II (relying on 105 ILCS 5/27-23.7 (b)(4)-(5)).) In response, the Latin

Defendants argue that under the Bullying Prevention Act there is: (i) no private right of action,

(ii) nothing to enforce, (iii) no applicability to individual persons, and (iv) immunity for individual

conduct. (Latin Br. at 15-22; Kranz Mot. at 4-6; Von Ogden Mot. at 4-5; Knoche Mot. at 5-6;

Hennessy Mot. at 4-5; Dunn Mot. at 4-5.) Each argument is without merit.

A. The Bullying Prevention Act Implies a Private Right of Action.

“A court may determine that a private right of action is implied in a statute that lacks

explicit language regarding whether a private right of action should be allowed.” Pilotto v. Urban

Outfitters West, L.L.C., 2017 IL App (1st) 160844, ¶22 (reversing dismissal of action based on

violation of statute designed to protect class of citizens where implied private right of action

existed). “In order to find an implied private right of action, a court must find that: (1) the plaintiff

is a member of the class for whose benefit the statute was enacted, (2) the plaintiff’s injury is one

the statute was designed to prevent, (3) a private right of action is consistent with the underlying

purpose of the statute, and (4) implying a private right of action is necessary to provide an adequate

remedy for violations of the statute.” Id. As demonstrated below, all four prongs are met.38

38
Latin notes that there is no express right of action set out in the Act, (Latin Br. at 16), but this is irrelevant
as Plaintiffs contend there is an implied private right of action. See Cowper v. Nyberg, 2014 IL App (5th)

61
 Before considering the four-prong test in its own analysis, Latin cites Noyola v. Bd. of

Educ. Of the City of Chicago, 179 Ill. 2d 121 (1997), to argue that a private right of action is only
FILED DATE: 3/15/2024 11:48 AM 2022L003763

available under the School Code where a plaintiff seeks a writ of mandamus. (Latin Br. at 15.)

That is false. In Noyola, the plaintiffs sought to “force the public officials responsible for

implementing section 18-8(A)(5)(i) [addressing apportionment of funds for disadvantaged school

children] to do what the law requires.” 179 Ill. 2d at 131-32. Accordingly, the four-prong test for

determining a private right of action was “not necessary” because plaintiffs were not attempting

to use a statutory enactment “as the predicate for a tort action,” but instead, to force a public official

to act, they could seek a writ of mandamus. Id. In so holding, the Supreme Court never addressed

whether a party seeking to use the statutory provision at issue, or any other provision of the School

Code, as a predicate act for a tort action would have private right of action. It did, however, explain

when the four-prong test is triggered.

“In Illinois, this approach is reflected in those cases holding that the violation of a statute

or ordinance designed to protect human life or property is prima facie evidence of negligence.” Id.

(citing Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434-35 (1991)). A statute “designed to

protect human life or property establish[es] the standard of conduct required of a reasonable

person.” Id. at 130. In addition to statutory violations providing the basis for a negligence claim

(as in Count I here), Illinois courts may accord an injured member of the class protected by a

statute “a right of action, using a suitable existing tort action or a new cause of action analogous

to an existing tort action or a new cause of action analogous to an existing tort action.” Id. (quoting

Restatement (Second) of Torts § 874A (1979)). The four-prong test is then applied to determine

whether the statute in question provides for an implied private right of action. Id. at 131.

120415, ¶14. Moreover, reference to multiple amendments to the Act, as well as the Bronsteins’ advocacy,
has no place in the Court’s application of the four-prong test for an implied private right of action.

62
 Here, Plaintiffs are not seeking to force any public official to do anything; therefore, a

mandamus analysis is not triggered here. Rather, Plaintiffs are seeking redress from the Latin
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Defendants for their violations of the Bullying Prevention Act. As Noyola directs, this Court must

apply the four-prong test. Id.

1. Nate was a Member of the Class the Bullying Prevention Act was
Enacted to Benefit.

Latin concedes, as it must, that “Nate was a member of the class for whose benefit the Act

was enacted… .” (Latin Br. at 16.) See also Eilenfeldt v. United C.U.S.D. #304 Bd. of Educ., 2013

U.S. Dist. LEXIS 201773, *3, 20 (N.D. Ill. Mar. 25, 2013) (defendant school could not dispute

minor subjected to “repeated instances of bullying, taunting, physical assault, and sexual

harassment” was “within the class of people” the Act was “enacted to protect.”)

2. The Bullying Prevention Act is Designed to Prevent “Physical,

Psychological, and Emotional Harm.”

Nate’s injury is one the statute was designed to prevent. The Act preamble explicitly states

its aim is to prevent, limit, and mitigate “physical, psychological, and emotional harm to

students… .” 105 ILCS 5/27-23.7(a). See Eilenfeldt, supra., *20 (defendant school “did not dispute

that… [Act] was designed to prevent the kind of injuries that [minor who was bullied] suffered.”).

Further, where the statutory purpose is to provide rights in light of a medical condition or harm,

courts find private action rights to exist. See, e.g., Pilotto, 2017 IL App (1st) 160844, ¶24 (finding

private right of action under Restroom Access Act, which was “created for the benefit of a class

of citizens who suffer from an eligible medical condition”).

Latin argues that Nate’s “death by suicide … was not the type of injury the Act is designed

to prevent.” (Latin Br. at 17.) In support of this specious proposition, Latin ignores the express

language in the preamble that “bullying causes physical, psychological, and emotional harm to

63
 students,” 105 ILCS 5/27-23.7(a), and selectively quote only the second portion of the sentence

stating that bullying “interferes with students’ ability to learn and participate in school activities”
FILED DATE: 3/15/2024 11:48 AM 2022L003763

in order to contend falsely that is the statute’s sole aim, (id.). While courts routinely look to a

statute’s plain language in interpreting legislative purpose, Cowper v. Nyberg, 2014 IL App (5th)

120415, ¶19, courts always consider all of the language, and every provision, in the statute,

Brucker v. Mercola, 227 Ill 2d 502, 514 (2007) (viewing all provisions of an enactment as a whole).

See also Performance Food Grp., Inc. v. Estate of Aryeh (In re Estate of Moshe), 2021 IL App

(1st) 192418, ¶47 (courts cannot exalt one statutory provision over another).

Here, Latin not only ignore the Act’s preamble language stating expressly that the

prevention of harm is a purpose of the statute, but also other provisions in the Act such as the

mandatory requirement to provide prompt (now, 24-hour) notice to parents/guardians of all

students involved, including for the purpose of discussing “the availability of social work services,

counseling, school psychological services, other interventions, and restorative measures.” 105

ILCS 5/27-23.7(b)(4). The obvious purpose in urgently providing this information to parents is to

prevent and mitigate “physical, psychological, and emotional harm.” Id. The use of the specific

language that bullying causes harm, the statutory title aiming for “prevention,” and the mandated

requirements to address the very harms the Act aims to prevent, show the General Assembly was

not just concerned with whether a student could participate on the basketball team as Latin

ludicrously contend. The defendant school in Eilenfeldt, with an honesty that Latin seems to lack,

conceded “the statute was designed the prevent the kind of [physical harm] injuries that [the minor

student] suffered.” 2013 U.S. Dist. LEXIS 201773, *20.39

39
Latin recounts how Nate “interacted with his teachers about his grades,” apparently to somehow claim
his “ability to learn” was not impacted. (Latin Br. at 17.) While this argument is a red herring, even if
viewed in that improper narrow lens, Latin ignores the dozens of allegations relating to how Nate was
negatively impacted during his finals week. (TAC, ¶¶261-342.)

64
 3. The Bullying Prevention Act’s Purpose is to Protect Illinois Students
from the “Physical, Psychological, and Emotional Harm” Caused by
Bullying.
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A private right of action must be consistent with the underlying statutory purpose, which

here is to protect Illinois students from the “physical, psychological, and emotional harm” caused

by bullying. Courts have found this prong satisfied when a “private right of action would both

benefit those that the statute was enacted to protect and dissuade” those from non-compliance with

the statute. See, e.g., Flumetto v. Garrett Enters., 321 Ill. App. 3d 946, 952 (2d Dist. 2001). Here,

a private right of action would benefit those students who are victims of bullying, including by

dissuading schools and their personnel from non-compliance, which will exacerbate the harm. See

King v. Senior Servs. Assocs., 341 Ill. App. 3d 264, 266-67, 270 (2d Dist. 2003) (implied right of

action existed under Elder Abuse and Neglect Act for employee terminated for reporting elder

abuse, including that implied right was consistent with the underlying purpose of the statute);

Dawkins v. Fitness Int’l, LLC, 2022 IL 127561, ¶43, affirming 2020 IL App (3d) 170702-U, ¶29

(private right of action under Physical Fitness Facility Medical Emergency Preparedness Act, was

“consistent with the underlying purpose of the statute, which is to protect patrons of fitness

facilities from serious injuries”).

Conversely, “[c]ases where a private right of action has been found inconsistent with the

purpose of a statute generally have involved situations where such a right would impede the

operation of the statute in some way.” Flumetto, 321 Ill. App. 3d at 952. There is nothing

inconsistent here in holding a school liable for failing to implement the mandatory requirements

of the statute that schools promptly notify parents of a bullying report and conduct an investigation

keeping parents informed. 105 ILCS 5/27-23.7(b)(4)-(5). To the contrary, a private right of action

to remedy blatant violations of the statute’s mandatory provisions serves only to effectuate the

65
 stated purpose of the statute to prevent the “physical, psychological and emotional harms” caused

by bullying. See id.; see also Pilotto, 2017 IL App (1st) 160844, ¶27 (implied private of action
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consistent with aim of restroom access act and would not adversely affect any other provision).

a. The Act is not regulatory in nature.

As an alternative to meeting prong three’s purpose requirement, Latin argues the Act is

“regulatory in nature” in that it only develops minimum standards for school specific policies that

the ISBE regulates. (Latin Br. at 17-18.) Initially, the Act should be viewed as remedial in nature

in that it seeks to prevent and lessen the prevalence of bullying (“no student shall be subjected to

bullying,” which has serious and harmful impact. (105 ILCS 5/27-23.7(a)). See, e.g., Fiumetto v.

Garrett Enters., 321 Ill. App. 3d 946, 952 (2d Dist. 2001) (holding implied private right of action

under Unemployment Act, including because “the purpose of the [statute] is to lessen the burden

of unemployment upon unemployed workers. … [Thus,] [t]he Unemployment Act is remedial in

nature.”). “Where an act is remedial, a private right of action is likely consistent with its purpose.”

Fiumetto, 321 Ill. App. 3d at 952. The same holds true here.

b. Even if considered regulatory, there is still an implied private

right of action under the Act.

Even if the Bullying Prevention Act were viewed as purely regulatory, Latin’s argument

has been previously rejected. In Rodgers v. St. Mary’s Hospital, 149 Ill. 2d 302 (1992), at issue

was a hospital’s violation of the X-Ray Retention Act by failing to preserve a patient’s x-rays. The

statute simply imposed retention requirements upon hospitals. Id. at 307-308. The hospital argued

that the statute was “merely an administrative regulation to be enforced exclusively by the

Department of Public Health.” Id. at 308. The Illinois Supreme Court disagreed: “nothing in the

statute suggests that the legislature intended to limit the available remedies to administrative ones

… [and such] remedies would not provide an adequate remedy to those injured by violation of the

66
 Act. … Thus it is reasonable to believe that the legislature intended that those persons to bring a

private action against the offending hospital for damages caused by a breach of the statute.” Id. at
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309. This Court should view the Bullying Prevention Act in the similar light.

Latin’s case law on this point is inapposite. In Davis v. Dunne, 189 Ill. App. 3d 739 (1st

Dist. 1989), (Latin Br. at 17-18), a county civil service employee claimed that another employee

received a promotion which the plaintiff would have received but for the hiring agency’s violation

of a rule promulgated under the authority of the Civil Service Act (CSA). The plaintiff asked the

court to declare the other employee’s promotion void and to order the plaintiff appointed to the

position. Id. at 741. The court noted that the CSA applied to a “relatively narrow realm of civil

service employment,” and its purpose was to provide a “framework for appointment, promotion

and removal of civil service employees.” Id. at 743. Thus, its purpose was not “intended to protect

persons” such as the plaintiff, nor was “there a clear need for a private right of action.” Id.; see

also Metzger v. DaRosa, 209 Ill. 2d 30, 39 (2004) (“providing an implied right of action for state

employees [under CSA] against the state would deprive the state of its independent ability to

manage its employees and to decide whether an action is retaliation or appropriate management,

and would instead vest that power in a court”). Here, conversely, the Act does not apply to a narrow

realm of individuals and it was intended (as Latin concedes) to protect individuals like Nate.

Latin argues that where “broad discretion is given to an agency, it negates the implication

that there was legislative intent to create a private right of action.” (Latin Br. at 18.) But the Act,

contrary to the authority given to the State under the CSA, provides no great discretion to the ISBE.

Rather, the Act enumerates a series of requirements that a school policy must include (like

mandatory reporting to parents within 24 hours of a report). If a school district “fails to file a policy

on bullying,” the ISBE provides written notice and, if the school again fails to file within 14 days

67
 of receipt, the ISBE publishes notice of non-compliance on its website. 105 ILCS 5/27-23.7(d).

The State has no discretion other than merely noting if a policy has been placed on file.
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The cases cited by Latin are not analogous. Moore v. Lumpkin, 258 Ill. App. 3d 980 (1st

Dist. 1994), (Latin Br. at 18), addressed efforts to restrict the spread of tuberculosis under the

Department of Public Health Act. The court held an implied right of action was not consistent with

the State’s police powers and broad discretion provided to agencies acting under such authority to

investigate and enacts specific measures. Id. at 995-996.

Similarly, in Suter v. Artist M., 503 U.S. 347 (1991), (Latin Br. at 18), at issue was the

Adoption Assistance and Child Welfare Act, under which states, in order to receive Federal

reimbursement for certain foster care expenses, had to submit a plan for approval, including

“reasonable efforts” to prevent or eliminate the need for removing a child from his or her home

and to make it possible for the child to return home. The court rejected a private right of action

because the statute provided no guidance as to how “reasonable efforts” were to be measured, and

other sections of the AACWA provided enforcement mechanisms for the “reasonable efforts”

clause, including giving the Secretary of Health and Human Services the “authority to reduce or

eliminate payments to a State on finding that the State’s plan no longer complie[d] [with the

AACWA] or that ‘there [was] a substantial failure in the administration of a plan such that the

State in not complying with its own plan.” Id. at 360.

Finally, in Helping Others Maintain Envtl. Stds. v. Bos., 406 Ill. App. 3d 669 (2d Dist.

2010), (Latin Br. at 19), a private right of action was rejected under the Livestock Act where the

Department of Agriculture was given broad discretion to enforce it, including determining whether

its statutory provisions were met, as well as inspections and violation determinations. Id. at 686.

68
 No similar broad discretion is given to the ISBE under the Bullying Prevention Act, nor are there

enforcement mechanisms provided like under the Adoption Act in Suter.

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Latin seizes on the language requiring schools to make “reasonable efforts” to complete an

investigation within ten school days, (105 ILCS 5/27-23.7(b) (policy mandate (5)(A))), to argue

that such is a discretionary effort that will vary and could lead to “inconsistent court rulings.”

(Latin Br. at 19-20.) The comparison to similar language in Suter is unavailing. To start, the

“reasonable efforts” language is found under one sub-prong of 13 enumerated sections mandating

requirements for school bullying prevention policies (like mandatory reporting to parents within

24 hours). Unlike Suter, the Act provides specific guidance for what a policy should entail.

In addition, the Act’s language only modifies a time frame for investigating a report of

bullying. It is not akin to the discretion left to the states under the statute in Suter, nor does it

impact the various other non-discretionary required elements of anti-bullying policies. Latin’s

purported fear of “inconsistent verdicts” is empty rhetoric. See, e.g., Dawkins, 2022 IL 127561,

¶43, affirming 2020 IL App (3d) 170702-U, ¶¶27, 40 (implied private right of action found under

Physical Fitness Act despite Act requiring fitness facilities to implement a written plan for

responding to medical emergencies including leaving to facilities to timely assess unconscious

patrons for signs of breathing). Further, contrary to Latin’ assertion that the Act’s purported

purpose is an established regulatory scheme “overseen by the Illinois State Board of Education,”

(Latin Br. at 19-20), as noted above the ISBE has no “oversight” other than ensuring a policy is

on file, and certainly no means to ensure enforcement of any school’s policy. Absent the courts,

there is no one to determine or enforce school compliance with the specific provisions of the Act.

69
 4. A Private Right of Action Under the Act is Necessary.

Implying a private right of action is necessary to provide an adequate remedy for violations
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of the Act. This prong has been held to be satisfied where “a statute would be ineffective without

the implication,” Pilotto, 2017 IL App (1st) 160844, ¶34, including where any nominal remedy in

the act would do “nothing to make the plaintiff whole again for the harm that she has already

sustained.” Id. at ¶37. In Dawkins, 2022 IL 127561, ¶43, affirming 2020 IL App (3d) 170702-U,

¶40, n.4, the court held a “written administrative warning” for violation of the Physical Fitness Act

for having a non-compliant defibrillator policy failed to provide adequate remedy, including that

it would not “compensate fitness facility patrons harmed by a defendant’s violations of the statue,

even though the protection of such patrons is the primary purpose of the [act]”.

Here, like in Dawkins, the sole statutory “remedy” addresses violation of only one aspect

of the statute and with extremely limited consequence. Specifically, when a school does not file

its policy with the ISBE, including after notice, the school is put on a list on the ISBE’s website.

105 ILCS 5/27-23.7(d). Such a toothless “remedy” does nothing to make victims whole again. See

King, 341 Ill. App. 3d 264, 270 (the rights sought to be protected under a statute are “no right[s]

at all if there is no remedy”). In fact, other than inconsequential public shaming with respect to

matters of serious injury as expressly stated in the statute, the Act does not even have a mechanism

for the ISBE to compel compliance, and certainly not to remedy actual harm. Accordingly, a

private right of action is necessary here.

Latin argues that prong four is not met because the statutory “penalties”—i.e., the ISBE

publishing notice of non-compliance”—is intended to deter schools from violating the Act. (Latin

Br. at 20.) Latin’s half-hearted effort to defend the sole toothless administrative consequence under

the Act fails. Countless cases have held such impactless administrative remedies, which fail to

70
 compensate a harmed victim, are not sufficient to find that a private action unnecessary. See

Dawkins, 2022 IL 127561, ¶43, affirming 2020 IL App (3d) 170702-U, ¶¶40, n. 4 (remedy of
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written warning, and later monetary administrative and civil penalty provided “virtually no

incentive for a fitness facility not to commit one violation” and was not the “robust built-in

enforcement mechanism that makes compliance with the statute likely”); Rodgers, 149 Ill. 2d at

309 (“threat of liability is much more efficient method of enforcing the regulation” than

administrative remedy); Corgan v. Muehling, 143 Ill. 2d 296, 315 (1991) (unlikely that victims

would pursue complaint through any administrative remedy and “private right of action … is the

only way an aggrieved plaintiff can be made whole”); Pilotto, 2017 Il App (1st) 160844, ¶¶35-37

(petty offense of $100 for violating statute did nothing to make plaintiff whole again); Sawyer

Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379, 389 (1982) (implied private right of action found

for victims under statute where sanctions, aimed to deter violations, were not sufficient).

Latin’s citation to Metzker v. DaRosa, 209 Ill. 2d 30 (2004), (Latin Br. at 20), is easily

distinguished. There, an Illinois State police officer filed suit alleging, among other claims, a

violation of the state Personnel Code. The court held no private right of action existed because the

Code was designed to benefit the state, not the employees, that its purpose was to establish a system

of personnel administration (not to prevent the injuries the plaintiff complained of), that a private

right of action was inconsistent with that purpose (which would “deprive the state of its

independent ability to manage its employees”), and that a private action was “not necessary” to

achieve the purpose of “encouraging honesty and candor among state employees.” Id. at 37-40.

The instant case is a polar opposite.40

40
Latin also mentions, but does not develop any substantive argument, that the Act provides that it “does
not supplant other civil or criminal remedies.” (Latin Br. at 18.) In fact, the applicable section reads the Act
“shall not be interpreted to prevent a victim from seeking redress under any other available civil or criminal
law.” 105 ILCS 5/27-23.7(e). Contrary to Latin’s assertion, such language suggests an implied private right

71
 B. There are Provisions to Enforce in the Bullying Prevention Act.

The Bullying Prevention Act contains express and mandatory requirements, including as
FILED DATE: 3/15/2024 11:48 AM 2022L003763

follows:

 That schools “create, maintain, and implement” a bullying protection policy setting
forth the mandates in the Act. See 105 ILCS 5/27-23.7(b), (d).

 That, as set out in a compliant policy, school personnel must “promptly inform[]
parents or guardians of all students involved in the alleged incident of bullying.” See
105 ILCS 5/27-23.7(b) (policy mandate (4)).

 That, as set out in compliant policy, school personnel must promptly investigate and
address reports of bullying, and provide parents and guardians of the students who are
parties to the investigation information about the investigation and an opportunity to
meet with the school about the investigation. See 105 ILCS 5/27-23.7(b) (policy
mandate (5)).

These are all mandatory requirements set out in the Act. See 105 ILCS 5/27-23.7(b) (policy

mandates (4)-(5)), (d); see also Malinksi v. Grayslake Community High School District 127, 2014

IL App (2d) 130685, ¶ 13 (“We recognize that section 27-23.7(d) of the School Code mandates

that each school district ‘create and maintain a policy on bullying.’”) (citing the Act).

Plaintiffs allege violations of these mandatory requirements. Specifically, Plaintiffs allege

that Latin did not have a compliant policy in place and did not implement a compliant policy during

the time Nate attended Latin. (TAC, ¶¶82, 84-86, 582-603, 606-624) Plaintiffs allege that no one

at Latin informed them of Nate’s reported incident of bullying—not promptly or at any time.

(TAC, ¶¶ 328-333, 341, 349, 358, 375, 399, 401, 404, 442-43, 512, 596, 603, 676, 678.) Finally,

of action under the Act is not a litigant’s exclusive remedy. See, e.g., Dawkins v. Fitness Int’l, LLC, 2022
IL 127561, ¶43, affirming 2020 IL App (3d) 170702-U, ¶23 (implied private right of action found despite
statutory language stating “Nothing in this Act shall be construed to either limit or expand the exemptions
from civil liability”); Corgan, 143 Ill. 2d at 313 (“where a statute is enacted for the protection of a particular
class of individuals, a violation of its terms may result in civil as well as criminal liability”); Sawyer, 89 Ill.
2d at 385 (“If there is no indication that the remedies available are only those the legislature expressed in
the Act, then where it is consistent with the underlying purpose of the Act and necessary to achieve the aim
of the legislation, a private right of action can be implied).

72
 Plaintiffs allege that no investigation was conducted, including because the Bronsteins were never

informed of anything nor given the opportunity to meet with the school about any investigation.
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(Id. ¶¶ 334-340, 346, 348.) These are allegations of three clear and absolute violations of the

mandatory requirements of the Bullying Prevention Act based on the plain language of the Act.

E.g., Murray v. Chicago Youth Center, 224 Ill. 2d 213, 235 (2007) (“courts are not free to construe

a statute in a manner that alters the plain meaning of the language adopted by the legislature.”).

The Latin Defendants do not address the mandatory requirements or Plaintiffs’ allegations

that they violated these requirements. Latin instead cite three cases discussing discretionary

elements of the Act and/or its policy requirements, for purposes of seeking to apply the Tort

Immunity Act rather than alleged violations of the Act itself. (Latin Br. at 20-21 (citing In Castillo

v. Bd. of Educ. of City of Chicago, 2018 IL App (1st) 171053, ¶¶ 16-19; Mulvey v. Carl Sandburg

High School, 2016 IL App (1st) 151615, ¶ 32; Malinksi, 2014 IL App (2d) 130685, ¶¶ 10-13).)

Again, the Tort Immunity Act (and the analysis under it) does not apply here or relate to a

private school in any way. E.g., Brugger, 326 Ill. App. 3d at 332; Arteman, 198 Ill. 2d at 480-81.

Moreover, those cases are distinguished from this case, which alleges the failure to act at all where

required by law. Latin did not implement a compliant policy and no one at Latin contacted the

Bronsteins at any point—not regarding Nate’s bullying allegation and not regarding any

investigation, because no investigation was done. See supra, 6-12. Accordingly, Plaintiffs allege

multiple violations of the Bullying Prevention Act against the Latin Defendants.

C. The Individual Latin Defendants are Liable Under the Bullying Prevention
Act Because They Actively Participated in Violations of the Act.

The individual Latin Defendants each argue that the Act does not apply to them, and they

can have no duties under the Act. (E.g., Kranz Mot. at 4-6.) The Act defines “School personnel”

to include both administrators (Dunn, Von Ogden, Hennessy) and “school counselors” (Kranz,

73
 Knoche). See 105 ILCS 5/27-23.7(b). The Act references the involvement of school personnel

throughout its provisions as they are the persons who must necessarily implement the provisions
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of the policy mandated by the Act, including mandated engagement with parents. See id. In effect,

school personnel are the class of persons who must carry out the provisions of the Act and, here,

each of the Latin Defendants was personally involved and actively participated in violations of the

Act. See supra, 4-6 and Exhibit A. See, e.g., People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL

117193, ¶¶ 38-42 (corporate officer liable in her individual capacity for violating EPA through

operation of facility because she was personally involved and actively participated in violations).

D. The Individual Latin Defendants Do Not Have Parental Immunity Under the
School Code for Their Violations of the Act.

The individual Latin Defendants each argue that they have immunity for any violations of

the Act because carrying out the provisions of the Act falls within the scope of supervisory

conduct. (E.g. Kranz Mot. at 4-6.) As demonstrated in Section I.C-D., supra, no such immunity

applies here. First, the mandates of the Bullying Prevention Act do not arise out of any in loco

parentis obligation and, instead, are statutory mandates to engage with (and not in place of) parents

and guardians—by informing parents and guardians of bullying allegations and keeping them

informed of an investigation into the allegations. See Section I.D.1, supra. Second, no individual

school personnel can be said to be supervising and controlling the conduct or physical movement

of student when informing parents and guardians of bullying allegations and keeping them

informed of an investigation into the allegations. See Section I.D.3, supra.

Third, one purpose of engaging with the parents, particularly with respect to notice of

bullying, is to inform the parent so that they can exercise their parental discretion with respect to

medical care decision-making for their minor child. See Section I.D.2., supra. In furtherance of

this purpose, school personnel are supposed to discuss with parents/guardians, as appropriate, “the

74
 availability of social work services, counseling, school psychological services, other interventions,

and restorative measures.” 105 ILCS 5/27-23.7(b) (policy mandate (4)). Fourth, even if parental
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immunity were somehow applicable here, Plaintiffs allege the individual Latin Defendants each

acted willfully and wantonly toward Nate in their handling of the reported cyberbullying and his

reported injury, overcoming any such immunity at the pleading stage. See Section I.E, supra.

For all the reasons stated above, Plaintiffs plead a claim for violation of the Bullying

Prevention Act against the Latin Defendants. Accordingly, this Court should deny the Latin

Defendants’ respective motions to dismiss.

III. PLAINTIFFS PLEAD A SURVIVAL CLAIM FOR WILLFUL AND WANTON

BREACH OF VOLUNTARY UNDERTAKING AGAINST THE LATIN
DEFENDANTS (COUNT III).

In Count III, Plaintiffs assert claims against the Latin Defendants who voluntarily

undertook to render services to Nate and then caused him injury as a result of their voluntary

undertakings. (TAC, Count III.) The Latin Defendants cannot avoid this cause of action merely by

declaring none of them owed any duty to Nate. Rather, as pled, each of the Latin Defendants took,

and elected not to take, numerous specific actions during Nate’s time at Latin, all related to his

injury. This involved multiple agents of Latin (including Hennessy, Kranz, Knoche, Von Ogden

and Dunn) who caused harm to Nate, including his emotional distress and his death.

Plaintiffs have alleged that Latin and each of these agents owed affirmative duties to Nate,

which they breached, including:

 The duty not to interfere with, or prevent parental discretion over medical care decision
making. (Count I)

 Duties to comply with the mandates of the Act. (Counts I, II)

 Fiduciary duties owed to Nate by Latin. (Count V)

75
  Professional duties of care owed to Nate by the school mental health counselors during
Fall 2021 (Kranz, Knoche).41 (Counts IX, X)
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If, however, affirmative duties were not triggered for each (or any) of the Latin Defendants at all

given moments of action or inaction causing injury to Nate—and each of the Latin Defendants

indeed denies owing any duties at all, at any time42—these defendants cannot be absolved of their

wrongdoing for the actions they took when voluntarily assuming duties and then breaching them.43

Illinois courts adopt and cite approvingly the standards for voluntary undertaking set out

in the Restatement 2d of Torts. E.g., Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 211-12

(1979). Applicable here are Restatement § 323 and § 324, both adopted and/or cited with approval

by the Illinois Supreme Court. See Wakulich, 203 Ill. 2d at 242-45. Restatement § 323 provides:

One who undertakes, gratuitously or for consideration, to render services to another

which he should recognize as necessary for the protection of the other’s person or
things, is subject to liability to the other for physical harm resulting from his failure
to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restat 2d of Torts, § 323. Restatement § 324 provides:

One who, being under no duty to do so, takes charge of another who is helpless
adequately to aid or protect himself is subject to liability to the other for any bodily
harm caused to him by

41
Kranz and Knoche deny having any duties, including professional duties arising from their status as
school mental health counselors. (Kranz Mot. at 8; Knoche Mot. at 8-10.) Even if arguendo a school
counselor can never owe duties of professional care to a student, Kranz and Knoche elected to undertake
certain duties by, among other things, Kranz assessing Nate for suicidal ideation. See supra herein.
Similarly, Hennessy disputes owing any duty to Nate, (Hennessy Mot. at 4-5), including under the Act, and
not to interfere with, or prevent parental discretion over medical care decision-making. Yet, Hennessy
undertook certain duties voluntarily, including in connection with taking Nate’s cyberbullying report. See
supra herein. Should this Court deem any of their actions raised in the TAC “supervisory,” i.e., supervision
and control over conduct or physical movement of students connected with the school program, there still
remain duties owed, which Kranz, Knoche and Hennessy breached willfully and wantonly.
42
(See Latin Br. at 21-22; Dunn Mot. at 4-5; Von Ogden Mot. at 4-5; Hennessy Mot. at 4-5; Kranz Mot. at
4-6; Knoche Mot. at 5-6.)
43
This Count III may be considered an alternative cause of action, Martin v. Keeley & Sons, Inc., 2012 IL
113270, ¶ 38, but there may also be affirmative duties and voluntarily taken duties determined by the Court
for different defendants at different times based on different conduct.

76
 (a) the failure of the actor to exercise reasonable care to secure the safety of the
other while within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other
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in a worse position than when the actor took charge of him.

Restat 2d of Torts, § 324.

Illinois courts also recognize that persons can voluntarily undertake the duty to protect a

person from a third party, including as to that third party’s criminal conduct. E.g., Pippin, 78 Ill.

2d at 207-08, 211-12 (Chicago Housing Authority assumed duty to protect social guest of resident

from criminal attacks and foreseeable damages); Doe-3 v. White, 409 Ill. App. 3d 1087, 1088,

1097-1100 (4th Dist. 2011) (mothers of, and, second grade students sexually abused by teacher

stated duty voluntarily taken by school district where abuser was previously employed when it

communicated to new school about teacher with recommendations instead of warnings).

Critical to this analysis is the affirmative action taken by the defendant to voluntarily

undertake the duty, which then determines the scope of the duty undertaken. E.g., Wakulich, 203

Ill. 2d at 242 (“By undertaking to act” a defendant becomes “‘subject to a duty with respect to the

manner of performance.”) (internal citations and quotations omitted); Bell v. Hutsell, 2011 IL

110724, ¶¶ 26-27 (when parents took no action to prohibit underage consumption of alcohol at

party hosted by their son at their residence—including not confiscating the alcohol, not asking

underage offenders to leave and not stopping the party—parents did not undertake duty and were

mere social hosts who do not have duty to control alcohol intake or driving of cars of or by guests).

Once the duty is undertaken, the duty may be breached by misfeasance (acting negligently),

or nonfeasance (failing to act) when there is reliance on defendant’s promise. E.g, Bell, 2011 IL

110724, ¶¶ 23; Bourgonje v. Machev, 362 Ill. App. 3d 984, 996-98 (1st Dist. 2005). In other words,

where the duty is undertaken and performed negligently, reliance on the promise is not required,

but if the duty is undertaken and not performed at all, reliance on the promise is required. See id.

77
 Applying the theory here, each Latin Defendant is alleged to have voluntary undertaken

duties to Nate, which were breached. During Fall 2021, Kranz and Hennessy and, later, Knoche
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and Von Ogden, engaged in numerous communications with Nate and/or the Bronsteins regarding

Nate. (TAC, ¶¶ 146-153, 155, 166-168, 176, 197.) With each communication, these individuals

indicated a willingness and agreement to help Nate with his social, emotional, and mental health

struggles. (Id.) Kranz even went so far as to assess Nate for suicidal ideation on October 19, 2021.

(Id., ¶¶ 169-72, 185-86.) Following this assessment, Kranz did not tell Mrs. Bronstein that she had

done so, but instead Kranz informed Mrs. Bronstein, “I think this issue needs to be addressed with

professionals outside of school.” (Id., ¶¶ 199.) However, while Kranz and Hennessy had made the

decision to wash their and Latin’s hands of Nate and the family entirely, Kranz chose not to inform

Mrs. Bronstein that recommending professional help also meant the Latin Defendants would, from

that moment on, do nothing regarding Nate’s social, emotional, and mental health struggles after

previously communicating their voluntary undertaking to do so. (Id., ¶¶ 200-03.)

To the contrary, in the communications involving Hennessy, Kranz, Knoche and,

eventually, Von Ogden that followed, each gave the false impression that they were still willing to

help Nate. Reviewing those communications today with the benefit of evidence of cyberbullying

known to the Latin Defendants and revealed after Nate’s death, these Latin agents’ true game of

deflection and dereliction becomes clear. (Id., ¶¶ 146-153, 155, 166-168, 176, 197, 208-243.)

These defendants chose to create the appearance of help, and of continued voluntary undertaking,

while having no intention of actually helping and in fact doing the opposite. (Id.)

As an example, on or around November 9, 2021, Mrs. Bronstein met with Von Ogden to

escalate concerns about Nate, informing Von Ogden about the issues to date—including Nate’s

feelings of social isolation, rejection and ostracization at the hands of other students—which is

78
 alleged to have been known by Von Ogden and Dunn at this time. (TAC, ¶¶ 236-38; Exhibit A.)

Mrs. Bronstein also conveyed Nate’s feelings of mistreatment by his math teacher, Andrew
FILED DATE: 3/15/2024 11:48 AM 2022L003763

Sanchez. (Id. ¶¶ 237.) During this meeting, Von Ogden expressly confirmed her undertaking to

address Nate’s concerns and to assist him, but in fact Von Ogden did nothing. (Id., ¶¶ 233-43.)

Perhaps most horrifying, following Nate’s cyberbullying report, Hennessy re-confirmed

her voluntary undertaking to help Nate’s social, emotional, and mental health struggles and then

intentionally breached the duties she assumed. (TAC, ¶¶ 327-42, 346-66.) Specifically, in response

to Nate’s December 12, 2021 report of cyberbullying, which included notice of his cyberbullying

injury and his express request to make the bullying stop, Hennessy reiterated that Latin and its

agents would help him. (TAC, ¶¶ 314-18.)44 But instead of helping as promised, Hennessy and the

other Latin Defendants (all of whom came to know about the cyberbullying report shortly

thereafter, Exhibit A)), willfully and wantonly45 acted solely to protect Latin’s reputation and avoid

a cyberbullying scandal. Their malfeasance included manipulating and/or encouraging Nate not to

involve his parents, denying the cyberbullying to Nate, recharacterizing it as something relatively

benign with one other student and blaming him for his own predicament. See supra, 6-11.

44
These paragraphs reference e-mail communications between Nate and Hennessy that Latin showed the
Bronsteins in July 2023 as part of Latin’s efforts to moot the School Files dispute, but would not give to
the Bronsteins, which is why these e-mails, along with Hennessy’s notes of the meeting the next day, are
not attached as exhibits to the TAC. It is in the e-mails that Hennessy reiterated to Nate that Latin would
help him. This allegation is not articulated clearly in the TAC, but if critical for pleading purposes, leave to
amend would be appropriate.
45
Although willful and wanton conduct is alleged, only negligence is actually required to state a claim here,
because none of the Latin Defendants are entitled to immunity. The Latin Defendants have not and cannot
meet their burden to establish that any voluntary duty is subject to School Code immunity. See Section I.C-
D., supra. In addition, the Latin Defendants argue a willful and wanton standard applicable in Tort
Immunity Act cases, which is inapplicable here. (Latin Br. at 21-22 (citing Winfrey v. Chicago Park
District, 274 Ill. App. 3d 939, 945 (1st Dist. 1995) (“Significantly, under the Tort Immunity Act, willful
and wanton conduct requires a ‘course of action’, indicating more than mere inaction.”)).)

79
 For all these reasons, Plaintiffs adequately plead a claim for breach of voluntary

undertaking. See Wakulich, 203 Ill. 2d at 226-27 (2003) (claim for breach of voluntary duty
FILED DATE: 3/15/2024 11:48 AM 2022L003763

adequately pled in wrongful death action where two brothers encouraged teenage girl to consume

excessive amounts of alcohol, watched her vomit and gave her a pillow, but did not contact her

parents or seek emergency medical attention, while preventing others in the home from doing so);

Regions Bank v. Joyce Meyer Ministries, Inc., 2014 IL App (5th) 130193, ¶ 19-22 (claim for breach

of voluntary duty adequately pled in wrongful death action where employer of man who murdered

his wife and sons undertook to investigate death threats made through the employer’s computer

system and equipment and to provide security at the decedent’s home).

IV. PLAINTIFFS PLEAD A SURVIVAL CLAIM FOR BREACH OF FIDUCIARY

DUTY AGAINST LATIN (COUNT V).

A fiduciary duty arises “as a matter of law from the relationship between the parties,” either

because of the “existence of a particular relationship” or by coming about when “one party reposes

trust and confidence in another, who thereby gains a resulting influence and a superiority over the

subservient party.” Miller v. Harris, 2013 IL App (2d) 120512, ¶ 19 (quoting Khan v. Deutsche

Bank AG, 2012 IL 112219, ¶ 58); see also Amato v. Greenquist, 287 Ill. App. 3d 921, 932 (1st

Dist. 1997) (fiduciary relationship may exist from a more informal or even personal relationship).

“Factors to be considered in determining whether a fiduciary relationship exists include the degree

of kinship, disparity of age, health, mental condition, education and business experience between

the parties, and the extent to which the allegedly servient party entrusted the handling of his

business and financial affairs to the other and reposed faith and confidence in him.” Farmer City

State Bank v. Guingrich, 139 Ill. App. 3d 416, 424 (4th Dist. 1985).

A fiduciary duty can arise in the school setting where a student places trust and confidence

in school personnel who gain influence and superiority over the student as a result. See, e.g., Doe

80
 v. Terwilliger, No. CV095024692S, 2010 Conn. Super. LEXIS 1597, at *3-4, 10-11 (Super. Ct.

June 8, 2010) (fiduciary duty sufficiently pled when minor student is unable to fully protect
FILED DATE: 3/15/2024 11:48 AM 2022L003763

interests and places trust and confidence in school personnel who engaged in sexual misconduct);

Vicky M. v. Northeastern Educational Intermediate Unit 19, 486 F. Supp. 2d 437, 458-59 (M.D.

Pa. 2007) (fiduciary duty sufficiently pled where child with autism entrusted in power of special

education teacher who engaged in abusive conduct toward child); McMahon v. Randolph-Macon

Academy, 42 Va. Cir. 417, 419 (Cir. Ct. 1997) (fiduciary duty owed by boarding school so that

when choice exists between the interests of the school/school member and the best interests of the

student, school must choose to act in student’s best interests).

Here, Plaintiffs allege the existence of a fiduciary duty based upon unique circumstances

and the special relationship that Latin created, invited and undertook with respect to Nate,

including: (i) creating a confidential relationship with Nate based on Latin’s own promulgated

rules and policies that authorized Latin to exercise controlling influence over many aspects of

student activities, including, when and how to use social media, how to behave off campus, and

how to behave vis-a-vis other students, (TAC ¶ 702); (ii) designing the language in the Handbook

so that students, including Nate, would believe they could rely on Latin for social and emotional

needs and protection, (id. ¶ 703); (iii) inviting students to notify trusted adults, (id. ¶ 706);

(iv) encouraging Nate through the Handbook to repose his trust and confidence in Latin when he

notified Hennessy about the cyberbullying, (id. ¶ 707); (v) Hennessy meeting with Nate and

promising Nate the bullying would be addressed (id. ¶ 708); and (vi) offering the help of school

counselors (who Nate did meet with reposing his trust and confidence, including when Kranz

assessed him for suicidal ideation), (id. ¶¶ 709-711).

81
 This fiduciary relationship—which is “recognized to exist” when a person places their trust

and confidence in another, who gains influence and superiority as a result and then proceeds to act
FILED DATE: 3/15/2024 11:48 AM 2022L003763

in the best interest of another to the detriment of that person, Miller, 2013 IL App (2d) 120512, ¶

19, is all the more present when the person is a minor student and the circumstances are broader

than the mere provision of education. See Terwilliger, No. CV095024692S, 2010 Conn. Super.

LEXIS 1597, at *11 (attaching significance to plaintiff’s status as a minor and the circumstances

addressing something more than typical “student-teacher relationship”). Taking the above

allegations as true, and considering that Nate was a minor child, Plaintiffs have more than

sufficiently alleged the existence (and breach) of a fiduciary duty. See Boatmen’s National Bank

v. Ward, 231 Ill. App. 3d 401, 404 (5th Dist. 1992) (“A fiduciary relationship is created where

confidence is reposed on one side and resulting superiority and influence is found on the other.”)

In any event, the existence of fiduciary trusting relationship based upon unique circumstances,

such as alleged here, is a question of fact best left to the jury. See id. at 411 (reinstating jury verdict

on highly fact-specific claim for breach of fiduciary duty).46 Accordingly, this Court should deny

Latin’s motion as to Count V.47

46
Latin seeks immunity from a fiduciary claim under the School Code but, for the same reasons set forth
in detail in Section I.C., supra, there is no immunity for any claim asserted against Latin. Latin cites Squeri
v. Mount Ida College, 954 F.3d 56, 74 n.16 (1st Cir. 2020), apparently in support of its immunity argument,
(Latin Br. 29). That case does not address immunity under the School Code and only references (in a
footnote) immunity pursuant to the Volunteer Protection Act, 42 U.S.C. § 14503(a), which is inapplicable
here. Moreover, Squeri involved adult students claiming an institution of higher education (not a K-12
setting) owed them a fiduciary duty following closure of the school due to financial distress. 954 F.3d at
61, 67-68. Squeri presents vastly different facts than those presented here.

47
Latin cites Neade v. Portes, 193 Ill. 2d 433 (2000) for the proposition that Illinois does not recognize
personal injury damages for breach of fiduciary duty. (Latin Br. at 29.) However, in that case the court
dismissed a fiduciary duty count only because it was duplicative, in all respects, of the plaintiff’s medical
negligence count. Latin also argues that Count V is duplicative of Count II (violation of Bullying Protection
Act) and Count III (voluntary undertaking), but this also misses the mark. Illinois courts have recognized
that an action seeking damages for breach of a fiduciary duty is an equitable one. See Bank One, N.A. v.
Borse, 351 Ill. App. 3d 482, 488 (2004). Moreover, Plaintiffs’ fiduciary claim here is based on facts that

82
 V. PLAINTIFFS PLEAD A SURVIVAL ACTION FOR COUNSELOR NEGLIGENCE
AGAINST DEFENDANTS KRANZ AND KNOCHE (COUNT IX).
FILED DATE: 3/15/2024 11:48 AM 2022L003763

Under Count IX, Plaintiffs plead claims against Kranz and Knoche for breaches of the

professional duties each owed to Nate in her capacity as a licensed and credentialed mental health

counselor employed by Latin. (TAC, Count IX; see also id. 10, 12, 124-25.) Kranz and Knoche

seek immunity under the School Code, and they argue that professional standards of care apply

only if they are acting in the role of licensed clinical professional counselor (LCPC) and not as a

school mental health counselor. (Kranz Mot. at 7-9; Knoche Mot. at 8-10.) Knoche also argues

that she owed Nate no professional duties outside of direct interaction with him. (Knoche Mot. at

9.) These defendants’ arguments are without merit.

A. Kranz and Knoche Owed Nate Professional Duties of Care as School Mental
Health Counselors.

Kranz and Knoche argue that Plaintiffs must allege specific facts to support that they acted

in the role of “licensed professional counselor, as opposed to a school counselor” when engaging

with Nate, the Bronstein family, and others regarding Nate. (Kranz Mot. at 7-8; Knoche Mot. at 8-

9.) But, Kranz and Knoche are first alleged to have breached their professional duties as school

mental health counselors, regardless of their licensure as LCPCs. (TAC, Count IX and Exs. FF-

GG.) See also 735 ILCS 5/2-1704 (“medical malpractice” includes any action for injuries by

reason of “health arts” practice, which excepts only care and treatment by spiritual means under

tenets or practices of a recognized church or religious denomination).

are, at least in part, separate from the other asserted claims. Latin offers no authority for the proposition
that Plaintiffs’ other tort claims, based in part upon separate facts, cannot exist independently. See, e.g.,
Alpha Bulk Logistics, LLC v. Netzky, 2020 Ill. Cir. LEXIS 115, *4-5 (fiduciary duty claims based on
different duties not duplicative); White v. Hegewisch Dev. Corp., 2020 Ill. Cir. LEXIS 12767, *7 (claim for
statutory violation not duplicative of negligence count).

83
 Kranz and Knoche remain bound by the ethical standards applicable to LCPCs when acting

as school counselors rather than providing counseling in a private practice. (TAC, Exs. FF-GG.)
FILED DATE: 3/15/2024 11:48 AM 2022L003763

Here, Kranz and Knoche owed Nate a professional duty of care as school mental health counselors,

and they were subject to the standards of care applicable to school mental health counselors with

the same class of license. 735 ILCS 5/2-622 (setting out the standards by which a healing art

malpractice claim must be supported upon filing). See also, e.g., Jinkins v. Lee, 209 Ill. 2d 320,

334-336 (2004) (professional duty arose from status as mental health care professionals not state

employment).48 Accordingly, a claim for professional medical malpractice is properly alleged

against Kranz and Knoche for breaches of these professional duties of care.

B. There is No Immunity for Kranz and Knoche in Carrying Out Their

Professional Duties of Care.

Kranz and Knoche also claim immunity from liability for breaches of their professional

duties of care under the “doctrine of in loco parentis.” (Kranz Mot. at 8; Knoche Mot. at 9-10.)

School personnel, however, are entitled to immunity under the School Code only when standing

in the shoes of the parent, and then only when exercising the supervisory function. See Section

I.C-D., supra. A school counselor’s duties, including the provision of mental health care services

and consulting about a student’s mental health care, safety and wellbeing—whether with a team,

48
In Jinkins, the Court held that a psychiatrist and a licensed clinical professional counselor employed at a
state mental health facility owed a duty of care to their patient arising from their status as professionals,
rather than from their state employment. 209 Ill. 2d at 334. The Court rejected defendants’ argument that
their only duty to the patient arose from their employment because they would not have come into contact
with him but for their employment. Jinkins, 209 Ill. 2d at 333. The Court held that because the defendants
“were using their professional judgment ***, the source of their duty was their mental health
professional status.” Jinkins, 209 Ill. 2d at 335 (emphasis added.) See also Sellers v. Rudert, 395 Ill. App.
3d 1041, 1052 (4th Dist. 2009) (licensed athletic trainers at university had independent professional duty
under Athletic Trainers Act); Loman v. Freeman, 229 Ill. 2d 104, 118-19 (2008) (“malpractice” in
Veterinary Practice Act implied professional standards applicable to all veterinarians.)

84
 school personnel or outside counselors—fall entirely outside of the parental role generally and

outside the supervisory function specifically. Id.

FILED DATE: 3/15/2024 11:48 AM 2022L003763

Kranz and Knoche both cite Kobylanski, 63 Ill. 2d at 173, which is inapplicable because it

addresses the supervisory function of a gym teacher over a student participating in gym class, not

the provision of mental health care services or any other professional service. Both also cite Grant,

286 Ill. App. 3d 642, 643 which involved a wrongful death claim against a “school counselor,” not

a professional malpractice claim; the provision of professional services and the question of

professional duties were not at issue. Plaintiffs have addressed Grant extensively herein, supra at

50-51, as well as setting out allegations that Kranz and Knoche acted willfully and wantonly

toward Nate, which would overcome any immunity defense, supra at Section I.E. These

allegations include in withholding information from the Bronsteins related to the assessment for

suicidal ideation, the giving the false appearance of help to Mrs. Bronstein while not helping, and

the failure to inform the Bronsteins of the cyberbullying report and injury. See supra, 54-60. See

also Grant, 286 Ill. App. 3d at 647 (“If defendant [counselor] had failed to take any action upon

learning of [student’s suicidal] statements, her inaction could constitute willful and wanton

conduct.”) (emp. added).

C. Direct Contact with Nate Was Not Required for Knoche’s Professional Duties
to be Triggered Here.

Knoche argues she is not alleged to have had direct contact with Nate and therefore no

professional negligence claim can be asserted against her. (Knoche Mot. at 8.) Plaintiffs actually

do allege direct contact between Knoche and Nate, as well as with Mrs. Bronstein (TAC, ¶¶ 213-

216, 230-31). But direct contact is not required to state a malpractice claim where there is a team

of providers. See, e.g., Lenahan v. University of Chicago, 348 Ill. App. 3d 155, 164 (1st Dist. 2004)

(doctor’s consultation with provider could create duty of care to patient); Bovara v. St. Francis

85
 Hospital, 298 Ill. App. 3d 1025, 1033 (1st Dist. 1998) (reversing summary judgment for providers

who did not interact directly with patient based on genuine issue of fact as to whether providers
FILED DATE: 3/15/2024 11:48 AM 2022L003763

were part of a team and owed a duty to patient); see also Lewis v. OSF Healthcare System, 2022

IL App (4th) 220016, ¶ 56 (reversing summary judgment and stating “[w]e find Bovara and

Lenahan instructive, as the physicians there were found to have a relationship with the patient

because they were active members of the team providing care”).

Here, Kranz provided mental health care directly to Nate, including assessing him for

suicidal ideation. (TAC, ¶¶ 146-195.) Notably, Latin has treated Kranz’s records and

communications with Nate and the family under the Illinois’ Mental Health and Developmental

Disabilities Confidentiality Act and thus acknowledges that health care was provided. (TAC, ¶

171.) Knoche is alleged to be the only other school counselor working with Kranz in Latin’s Upper

School; they were subject to the same professional standards of care and worked together on a

team. (TAC, ¶¶ 10-12, 124-28; Exhibit A.) Part of the duties of these school counselors are to

collaborate communicate closely with each other as they have “unique qualifications and skills to

implement a comprehensive school counseling program that addresses . . . social/emotional

development needs.” (TAC, ¶¶ 126 and Ex. G; see also Exs. FF-GG.) That program includes

consulting with one another on issues such as self-harm, suicidal ideation, and suicide. (TAC, Exs.

FF-GG.) Plaintiffs allege that Kranz and Knoche consulted on all issues regarding Nate (and

communicated to Latin administrators as well), albeit to Nate’s detriment, (TAC, ¶¶ 176-81, 190,

212, 221-232; Exhibit A), including at the time he reported cyberbullying, see supra, 3-6.

Plaintiffs have sufficiently alleged all elements of a claim for professional negligence

against both Kranz and Knoche and the Court should deny their motions as to Count IX.

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 VI. PLAINTIFFS PLEAD A SURVIVAL ACTION FOR COUNSELOR NEGLIGENCE
FILED DATE: 3/15/2024 11:48 AM 2022L003763

AGAINST LATIN (COUNT X).

Count X asserts a claim against Latin, the employer, for vicarious liability for Kranz’s and

Knoche’s breaches of professional duties owed to Nate. Latin merely adopts and incorporates their

individual motions without additional support. Accordingly, to the extent Count IX is sustained,

this Court should deny Latin’s motion to dismiss Count X.

VII. THE BRONSTEINS PLEAD AN ICFA CLAIM FOR LATIN’S OMISSIONS AND
MISREPRESENTATIONS MADE IN INDUCING ENROLLMENT (COUNT VII).

In Count VII, the Bronsteins assert a claim against Latin under Illinois’ Consumer Fraud

and Deceptive Practices Act, 815 ILCS 505/1 et seq. (“ICFA”), for the material omission and

misrepresentations Latin made in inducing the Bronsteins to enroll their children, Nate and S.B.,

at the school. To plead a claim under ICFA for misrepresentations and omissions, “a plaintiff must

allege: (1) a deceptive act or practice by the defendant, (2) the defendant’s intent that the plaintiff

rely on the deception, (3) the occurrence of the deception in the course of conduct involving trade

or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception.”

Pappas v. Pella Corp., 363 Ill. App. 3d 795, 798-99 (1st Dist. 2006). Latin’s arguments with

respect to prongs 1, 4 and 5 (deceptive conduct, causation, and damages) lack merit; the Bronsteins

have stated all elements of a straightforward claim for deceptive conduct under ICFA.

A. Latin Concealed Material Facts and Made Affirmative Misrepresentations.

The first prong of ICFA is met here because the Bronsteins allege Latin made omissions

and concealed material facts from them when it induced them to enroll their children at the school,

as well as affirmative statements that were misleading and false. See 815 ILCS 505/2; Pappas, 363

Ill. App. 3d at 798-99 (citing Connick v. Suzuki Motor Co., Ltd., 174 Ill. 2d 482, 501 (1997)).

87
 To start, Latin concealed the following material facts from the Bronsteins:

 Latin’s prolific history of bullying, cyberbullying, hate speech and other

FILED DATE: 3/15/2024 11:48 AM 2022L003763

harassment;

 Latin’s systemic failure to enforce its Handbook (including disciplinary provisions)

or follow Illinois law (including Illinois’ Bullying Prevention Act);

 Latin’s deliberate indifference, and failure to respond, to its endemic bullying

culture; and

 Latin’s “NO PARENTS” practice.

(TAC, ¶¶ 101; see also id. ¶¶ 24, 37, 56-70 (history), 378-391 (failure to enforce Handbook), 82,

84-86, 588-603, 606-624 (noncompliance with Act), 27-55 (no parents practice).) The Bronsteins

allege the concealment of this information was material to their decision to enroll their children at

the school. (Id. ¶¶ 101-103.) Latin argues that its omissions are “opinions, conclusions, and

subjective descriptions” that give rise to “an incomplete” impression rather than a false one. (Latin

Br. at 32 (citing Ash v. PSP Distrib., LLC, 2023 IL App (1st) 220151, ¶ 33 and Phillips v. DePaul

Univ., 2014 IL App (1st) 122817, ¶ 40).) But these are alleged omissions—i.e., material

information not expressed in any manner by Latin to the Bronsteins—not subjective statements of

opinion. (TAC, ¶¶ 101-103.)49

The cases cited by Latin are unavailing due to vastly different factual circumstances. In

Ash, LLC, 2023 IL App (1st) 220151, at ¶¶ 31-33, 37, the First District addressed the distinction

of “ground flaxseed” versus “whole flaxseed” on a cat food label and affirmed dismissal of the

ICFA claim finding that the failure to reference “whole flaxseed” while otherwise referencing

“ground flaxseed” was not material as a “matter of law” because “no factfinder could find a

49
Latin cannot escape answering for these omissions by claiming it had no duty to disclose its bullying
culture and non-compliance with law. It is well-established that “it is unnecessary to plead a common law
duty to disclose in order to state a valid claim of consumer fraud based on an omission or concealment.”
White v. DaimlerChrysler Corp., 368 Ill. App. 3d 278, 285 (1st Dist. 2006) citing Connick v. Suzuki Motor
Co., 174 Ill. 2d 482, 501 (1996).

88
 reasonable consumer would consider the disclosure of ‘ground flaxseed’ to imply the absence of

other forms of flaxseed.” Similarly, in Phillips, 2014 IL App (1st) 122817, at ¶ 40, the First District
FILED DATE: 3/15/2024 11:48 AM 2022L003763

addressed whether DePaul University’s provision of statistics about graduates employed, without

reference to part-time employment, implied that the statistics addressed only full-time

employment, concluding that the plaintiffs’ “interpretation of this generalized employment

statistic as including only full-time legal positions has been found to be unreasonable as a matter

of law by courts in other jurisdictions which have considered the same issue.”

The facts alleged here are the concealment of Latin’s bullying culture and harmful

practices, which puts the safety and wellbeing of minor children at risk. (TAC, ¶¶ 101-103.) This

is far more than an unclear reference to flaxseed on a cat food label or a generally accurate, but

“incomplete” job statistic. Further, the actual statements made by Latin were false and not

euphemisms for, nor partial disclosures of, the information concealed by Latin. (Id. ¶¶ 99-102.)

The facts alleged here do not provide this Court any opportunity to declare this concealment

somehow immaterial as a matter of law; accepting Latin’s position allowing blanket concealment

of such material information regarding a child’s safety in school “would eviscerate the spirit and

purpose” of the ICFA. Pappas, 363 Ill. App. 3d at 801, 805 (reversing dismissal of ICFA claims

and finding purchaser’s reliance on window manufacturer’s silence about defects in the context of

the sale was material to purchase).

In addition to total silence as to its dangerous practices, Latin also made affirmative false

statements to the Bronsteins, including:

 We promote physical and emotional wellness” for students;

 “We support and celebrate one another and take responsibility for our words and
actions, because we shape the lives of others [i.e., minor children] in our
community”;

89
  “We are honest, fair and fulfill the commitments we make, building a culture of
respect and mutual trust”;
FILED DATE: 3/15/2024 11:48 AM 2022L003763

 Latin recognizes the “fundamental importance of honesty, civility, public service

and respect for others and the environment”;

 Latin has a “concern for the moral, physical, psychological and aesthetic
development of each student”; and

 The environment at Latin is one where “all members of the community feel
accepted, affirmed, empowered and safe.”

(TAC, ¶ 99.)

After first suggesting that there are too many misrepresentations, (Latin Br. at 30 (taking

issue with Section VI of the TAC spanning “four and half pages and 15 paragraphs”)), Latin posits

that its statements are “subjective opinions” and thus non-actionable “puffery.” (Latin Br. at 30-

31.) However, ‘“[p]uffing’ denotes the exaggerations reasonably to be expected of a seller as to

the degree of quality of his or her product, the truth or falsity of which cannot be precisely

determined.” Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill. 2d 100, 173 (2005). Latin’s

affirmative misrepresentations are not statements with “meaningless superlatives” identified by

Avery such as “high-quality,” “expert workmanship,” “custom quality,” “perfect,” “magnificent,”

“comfort-able,” “picture perfect,” and “high performance criteria.” Id., 216 Ill. 2d at 173-174;

rather, Latin’s express statements plainly misrepresented that Latin was concerned for all students

and that all students would feel “accepted, affirmed, empowered and safe” in the Latin community.

(TAC, ¶ 99.) As the Bronsteins allege, the opposite proved true.

These were not mere expressions of opinion. “If an individual makes a statement that might

otherwise be considered an opinion, but does not specifically express it as his or her opinion, the

statement will be considered a factual representation if it would be reasonable for the other party

to treat it as such.” Totz v. Continental Du Page Acura, 236 Ill. App. 3d 891, 905 (2d Dist. 1992)

90
 (statement that vehicle was in “perfect” condition was a statement that a reasonable consumer

would have interpreted as a factual statement that the car was free of serious defects.”); see also
FILED DATE: 3/15/2024 11:48 AM 2022L003763

Miller v. William Chevrolet/Geo, 326 Ill. App. 3d 642, 649 (1st Dist. 2001) (statement that used

car was “executive driven” is “sufficiently susceptible of interpretation as a factual description of

a car’s history to defy our characterizing it as ‘puffing’ as a matter of law”). “Although a seller has

some latitude to engage in puffing the product, the seller is not permitted to ascribe virtues to the

product that it does not possess.” Totz, 236 Ill. App. 3d at 905.

Here Latin ascribed specific virtues and commitments to its product with statements

regarding its “environment of respect” with “concern for the moral, physical, and psychological

and aesthetic development of each student.” (TAC, ¶ 99.) The Bronsteins reasonably believed and

relied on these misrepresentations, as well as the blatant omissions regarding the bullying culture

and harmful practices at Latin, in enrolling their children. For all these reasons, the TAC more than

adequately alleges both omissions of material facts and misrepresentations in Count VI.

B. The Bronsteins Allege Causation Under the ICFA.

Latin’s argument that causation cannot be met because Latin provided Nate with an

education in return for the tuition paid, misses the point. (Latin Br. at 33.) An ICFA claim is not a

contract claim; just as a contract breach alone does not amount to a cause of action under the ICFA,

an argument that defendant fulfilled its contract is not a defense under the ICFA. E.g., Community

Bank of Trenton v. Schnuck Markets Inc., 887 F.3d 803, 822 (7th Cir. 2018) (IFCA claims do not

address mere breaches of contract). That Latin claims it fulfilled a contractual promise to provide

Nate with an education is inapposite to the fact that the Bronsteins nonetheless would not have

enrolled their children at Latin “but for” Latin’s deceptive conduct. (TAC, ¶¶ 103.) See, e.g.,

Pappas, 363 Ill. App. 3d at 798-99 (but for manufacturer’s silence, consumer would not have

91
 purchased defective windows); Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010)

(addressing whether purchase would have been made “but for” the deception).
FILED DATE: 3/15/2024 11:48 AM 2022L003763

Latin cites Phillips, where the alleged injury from purportedly deceptive employment

statistics was the enrollment and continued enrollment at DePaul, which, the students alleged,

caused them not to obtain the jobs and lifetime incomes expected after graduation and to earn

degrees that were not worth the tuition paid. 2014 IL App (1st) 122817, ¶ 50. The First District

found plaintiffs failed to allege causation because there were no allegations supporting that

enrollment elsewhere would have been better educationally and because a person’s income for life

depends on many factors. Id. ¶¶ 52-56.

In contrast here, the economic damages are not tied to future job prospects based on an

education or degree or the quality of the education provided. The Bronsteins’ injury is much more

direct—but for Latin’s deceptive conduct, they would not have enrolled Nate and S.B. at Latin or

paid tuition to Latin at all. (TAC ¶¶ 744-746.) These allegations must be taken as true for purposes

of this motion to dismiss and nothing further is required to satisfy the causation element. E.g.,

Pappas, 363 Ill. App. 3d at 805 (pleading reliance on a concealment by silence leading to purchase

of defective windows meets causation requirement).

C. The Bronsteins Allege Damages Under the ICFA.

Latin argues incorrectly that mental anguish and emotional distress are not damages for

which the ICFA provides a remedy. (Latin Br. at 33.) Such damages are indeed compensable under

the ICFA “when they are part of a total award that includes actual economic damages.” Morris v.

Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 403 (1st Dist. 2009); see also Xydakis v.

Target, Inc., 333 F. Supp. 2d 686, 688 (N.D. Ill. July 2, 2004) (same); see also Flores v. AON

Corp., 2023 IL App (1st) 230140, ¶¶ 42-43, 59, 62 (affirming dismissal of ICFA claim but

92
 modifying dismissal to be without prejudice as pleading defect could be cured by amendment).

The Bronsteins allege they suffered actual economic damages in paying tens of thousands of
FILED DATE: 3/15/2024 11:48 AM 2022L003763

dollars in tuition for both Nate and S.B. for the 2021-2022 school year. (TAC ¶¶ 744-745.) The

Bronsteins may therefore also recover emotional distress damages as part of their award.

VIII. THE BRONSTEINS PLEAD AN ICFA CLAIM FOR UNFAIR PRACTICES

AGAINST LATIN AND DEFENDANT KOO (COUNT VIII).

In Count VIII, the Bronsteins allege that Latin and Defendant Koo (Chairman of the Board

of Trustees at Latin during the relevant time-period)50 engaged in unfair practices that caused

them harm. (TAC, Count VIII, ¶¶ 747-761.) This is a different claim from Count VII for deceptive

acts (omission and misrepresentations) and, as a result, the pleading requirements are different.

E.g., Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 417 (2002) (ICFA addresses

deceptive acts or practices). Thus, Latin’s reliance on deceptive acts cases to attack the pleading

of an unfair practices claim must necessarily fail. (Latin Br. at 34 (citing Avery, 216 Ill. 2d at 198

(addressing omissions/misrepresentations claim); Connick, 174 Ill. 2d at 502 (addressing

consumer fraud claims based on statements).)51

To plead an unfair practices claim, Illinois courts direct as follows:

In order to allege that a practice is unfair, a plaintiff must plead that the practice:
(1) offends public policy; (2) is immoral, unethical, oppressive, or unscrupulous;
and (3) causes substantial injury to consumers.

50
Plaintiffs are filing an opposition to Defendant David Koo’s Combined Section 2-619.1 Motion to
Dismiss Count VI and VIII of Plaintiffs’ Third Amended Complaint separately. However, that opposition
will refer to arguments made herein to the extent possible to avoid duplication.
51
Prior to entering into the enrollment contracts, Latin concealed material facts and made
misrepresentations to the Bronsteins to induce them to enter into the contracts. (TAC, Count VII.) The
deceptive conduct necessarily occurred prior to the execution of the agreements and the obligation to pay
tuition. (Id.) An unfair practices claim, in contrast, involves the provision of services pursuant to an unfair
practice; certainly the payment for those services could potentially come before, during, or after the services
are provided. (TAC, Count VIII.)

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 Aliano v. Ferriss, 2013 IL App (1st) 120242, ¶ 25. “All three criteria do not need to be satisfied to

support a finding of unfairness.” Robinson, 201 Ill. 2d at 418 (internal citations and quotations
FILED DATE: 3/15/2024 11:48 AM 2022L003763

omitted). Rather, “[a] practice may be unfair because of the degree to which it meets one of the

criteria or because to a lesser extent it meets all three.” Id.

In Alyssa Mogul & Joey Mogul As Co-Executors of the Estate of Honor B. Mogul v. Sci Ill.

Servs., the court addressed allegations that after a mother had purchased eight burial plots for

herself and her family members in a specific section of a cemetery reserved for people of the

Jewish faith, the plots had been sold to other customers, the family members could not be interred

together as planned, and they were required to select an alternative plot for their mother outside of

the special section. No. 15 L 5069, 2017 Ill. Cir. LEXIS 7953, at *1-2 (Ill. Cir. Ct. Cook Cty.

February 6, 2017). Notably, the alleged unfair practice, i.e., the sale of the plots, occurred after the

purchase of the plots. Id. The court found plaintiffs sufficiently alleged the criteria for an unfair

practice claim, stating that “the bait and switch practice gives consumers the false impression they

have secured an appropriate final resting place.” Id. at 10. See also People ex rel. Foxx v. Anthony’s

Remodeling, Painting & Decorating, Inc., 2022 IL App (1st) 201135-U, ¶¶ 11, 30-31 (affirming

judgment against contractor under three-part test for ICFA unfair practices claim, where contractor

engaged in unfair practices after receiving signed contracts and deposits from customers).

Here, as in Alyssa Mogul and Foxx, the Bronsteins plead the requisite criteria to allege

unfair post-contracting practices on the part of Latin (TAC, Count VIII). Latin raises no cognizable

argument as to the sufficient pleading of these criteria. Accordingly, this Court should deny Latin’s

motion as to Count VIII.

94
 IX. PLAINTIFFS PLEAD A SURVIVAL CLAIM FOR INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS AGAINST THE LATIN DEENDANTS (COUNT IV).
FILED DATE: 3/15/2024 11:48 AM 2022L003763

A claim for intentional infliction of emotional distress (“IIED”), requires allegation of facts

establishing that (1) the defendant’s conduct was extreme and outrageous, (2) the defendant either

intended that his conduct should inflict severe emotional distress or knew that there was a high

probability that his conduct would cause severe emotional distress, and (3) the defendant’s conduct

in fact caused severe emotional distress. See Doe v. Calumet City, 161 Ill. 2d 374, 392 (1994);

Kornick v. Goodman, 2023 IL App (2d) 220197, ¶ 13. These elements are pled sufficiently here.

A. Plaintiffs Sufficiently Plead That The Latin Defendants’ Conduct Was

Extreme and Outrageous.

There is no bright-line rule about what constitutes extreme and outrageous conduct; it is

judged by an objective standard, based on all the facts and circumstances of a case. Calumet City,

161 Ill. 2d at 392 (reversing dismissal of IIED claim); Graham v. Commonwealth Edison Co., 318

Ill. App. 3d 736, 745 (1st Dist. 2000) (same). The Illinois Supreme Court has directed that “mere

insults, indignities, threats, annoyances, petty oppressions or other trivialities” do not qualify as

outrageous conduct; rather, the conduct must go beyond “all bounds of decency” and “be regarded

as intolerable in a civilized community.” Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 20-

21 (1992) (internal citations and quotations omitted) (reversing dismissal of IIED claim). Extreme

and outrageous is conduct about which “an average member of the community would arouse his

resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Id. (quoting Restatement

(Second) of Torts § 46, Comment d, at 73 (1965)).

The Supreme Court has noted three factors to consider in this determination: (1) the

defendant’s awareness that the plaintiff is particularly susceptible to emotional distress; (2) the

defendant’s abuse of some position that gives him authority over the plaintiff or the power to affect

the plaintiff’s interests; and (3) the reasonableness of a defendant’s belief that his objective is

95
 legitimate. See Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, ¶ 52 (addressing elements

at summary judgment stage); Calumet City, 161 Ill. 2d at 392-93. Each of these factors
FILED DATE: 3/15/2024 11:48 AM 2022L003763

demonstrates the extremity and outrageousness of the Latin Defendants’ conduct toward Nate.

1. The Latin Defendants were acutely aware that Nate was particularly
susceptible to emotional distress.

“[A] factor relevant in determining whether conduct is extreme or outrageous is defendant's

awareness that the plaintiff is particularly susceptible to emotional distress because of a physical

or mental condition or peculiarity.” Calumet City, 161 Ill. 2d at 393-94. “Conduct which might

otherwise be considered merely rude or abusive may be deemed outrageous where the defendant

knows that the plaintiff is particularly susceptible to emotional distress.” Id. (citing McGrath, 126

Ill. 2d at 88; Kolegas, 154 Ill. 2d at 21).

In Calumet City, the Illinois Supreme Court found it reasonable to infer that a police officer

knew that plaintiff “was in an emotional state that would make her susceptible to severe emotional

distress” because plaintiff told the officer that she “recently escaped a sexual assault and expressed

her fear for the safety of her children.” 161 Ill. 2d at 394. Similarly, in Kolegas, the Court found it

reasonable to infer that radio personalities would know that husband promoting awareness about

neurofibromatosis because his wife and child were afflicted with the disease “would be peculiarly

susceptible to emotional distress caused by comments which implied that they were hideous and

deformed as a result of their disease.” 154 Ill. 2d at 23.

Here, each Latin Defendant knew that Nate was prone to anxiety and struggled with peer

interactions, including feeling rejected, mistreated, and ostracized by the students at Latin. (TAC

¶¶ 110-113, 136-156; Exhibit A.) They also knew that at the time Kranz assessed Nate for suicidal

ideation that he exhibited extreme agitation, depression, school refusal, not eating, and increasing

agitation at home to the point where the people living with Nate were concerned for his safety. (Id.

96
 ¶¶ 174-83, 198.) Finally, Hennessy knew, and it can be reasonably inferred the remaining Latin

Defendants also knew, that Nate was extremely distressed and susceptible to further distress when,
FILED DATE: 3/15/2024 11:48 AM 2022L003763

on December 12, 2021, he told Hennessy that he was the victim of cyberbullying which caused

him to be extremely frustrated and beyond angry, and to feel like he was experiencing something

no student should. (Id. ¶ 316; Exhibit A.) Accordingly, as in Calumet City and Kolegas, it can be

reasonably inferred that each Latin Defendant knew that Nate would be peculiarly susceptible to

further emotional distress resulting from their conduct.

2. Schools and their personnel stand in a position of power to affect the

interests of minor school children.

The outrageous character of conduct here is compounded by the abuse of power. “The more

control over which a defendant has over the plaintiff, the more likely that defendant’s conduct will

be deemed outrageous, particularly when the alleged conduct involves either a veiled or explicit

threat to exercise such authority or power to plaintiff’s detriment.” McGrath v. Fahey, 126 Ill. 2d

78, 86-90 (1988); Calumet City, 161 Ill. 2d at 392-93. Individuals who exercise power or authority

over a plaintiff include police officers, school authorities, landlords, and creditors. Calumet City,

161 Ill. 2d at 392-93; McGrath, 126 Ill. 2d at 87.

In Kolegas, the Court found the defendants were in a position of power as radio hosts

because they controlled the airways and, after making extreme and outrageous comments, they

hung up on plaintiff and prevented any opportunity to respond. 154 Ill.2d at 22-23 (defendants

“had access to channels of communication; the power of the media cannot be denied” and plaintiffs

had no similar access). In Calumet City, Court addressed a more typical abuse of power—that of

a police officer responding to a victim of a crime. 161 Ill. 2d at 394. The police officer had control

on whether and how to help the victim, or whether to engage in conduct that exacerbated her

already existing distress. 161 Ill. 2d at 381-383.

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 The circumstances here are different from Calumet City in that the victim there was an

adult concerned for her children’s safety, whereas here the victim is a minor child, warranting even
FILED DATE: 3/15/2024 11:48 AM 2022L003763

greater protection under the public policy of Illinois. See supra at 24. Otherwise, the circumstances

here are highly analogous to Calumet City, in that a minor child was the victim of severe and

extreme cyberbullying. [] Starting on a Friday night, Nate experienced a two-hour “F---k you”

group text barrage from certain members of Latin’s JV basketball team. (TAC, ¶¶ 274-77.) Then

during that weekend, Nate came to learn that versions of a Snapchat—with vicious invective

directed at Nate, including that he should be dead and that his ashes should be smoked—were

posted by multiple Latin students to hundreds of recipients, including more Latin students. (Id. ¶¶

299-313.) All of this occurred right before finals week at Latin. (Id. Section XVII.) Nate was

understandably suffering and extremely distressed when he reached out to Hennessy. (Id. ¶¶ 314-

326.) He wanted the cyberbullying to stop. (Id. ¶ 325.) He wanted his distress to stop. (Id.)

Hennessy and each of the Latin Defendants stood in a position of power and authority over

Nate, and they had previously exerted that power to place Nate in stressful situations, to reprimand

him for certain conduct, to refuse to address his concerns, and to ensure no policies or protections

were in place to help him. (Id. ¶¶ 169-72, 183-85 (Kranz assessing Nate for suicidal ideation and

learning of Nate’s additional key signs); 203 (Hennessy reprimanding Nate for skipping school,

not wearing mask, not actually being willing to help with isolation), 229-32 (Knoche addressing

Nate’s reaction at assembly), 237-39 (Von Ogden failing to address the concerns raised over the

math teacher), 588-603, 606-624 (Dunn purposefully avoiding compliance with the Act, directing

a “no parents” policy).

When Nate reported the cyberbullying, Hennessy suggested to Nate that she would help,

but instead—at the direction or acquiescence of Dunn, Von Ogden, Kranz and Knoche—Hennessy

98
 abused her power over Nate and told him: (i) he wasn’t cyberbullied by multiple students, but a

relatively benign “social media incident” with one other student that Latin would do nothing about,
FILED DATE: 3/15/2024 11:48 AM 2022L003763

and (ii) Nate was to blame for bringing the incident upon himself and he should “pause before he

posts.” (Id. ¶¶ 350-366.) Then on top of this, Hennessy attempted to construct a record also

blaming Nate for her own violation of law, after manipulating and encouraging him not to speak

to his parents so as to ensure any cyberbullying scandal was quashed. (Id. 360-66.)

3. There is no allegation that any Latin Defendant had a reasonable belief

of legitimacy in their conduct toward Nate.

“When abuse of a position of authority is at issue, courts also examine whether the

defendant reasonably believed that his objective was legitimate.” Calumet City, 161 Ill. 2d at 393-

95 (fear over personal liability for property damage not legitimate reason for police officer to

refuse to act to save children from harm). Here, there is no allegation that any Latin Defendant had

any reasonable beliefs in their conduct toward Nate; rather, the totality of the allegations is that

the Latin Defendants knew that they were acting improperly to bury a cyberbullying scandal rather

than comply with the duties imposed by the Bullying Prevention Act and Illinois law, including

duties not to interfere with Nate’s parents’ discretion to obtain necessary medical care for his

cyberbullying injury, now exacerbated by the Latin Defendants’ callous and deliberately

indifferent conduct. See supra at 3-12.

4. The Latin Defendants engaged in extreme and outrageous conduct

toward Nate.

With the above three considerations in mind, the Court must consider whether conduct is

alleged to be extreme and outrageous: In Calumet City, 161 Ill. 2d at 393-94, allegations that a

police officer was exceedingly rude and demeaning in his treatment of a sexual assault victim

fearing for her children’s safety, which showed outrageous conduct. Id. In Kolegas, the abuse of

99
 power when radio hosts effectively bullied a man who had paid for radio advertising, ridiculed

him about the condition of his wife and child, and then cut him off from responding, thus alleging
FILED DATE: 3/15/2024 11:48 AM 2022L003763

outrageous conduct. 154 Ill. 2d at 21-23. In Graham, allegations of an employer’s “sham

investigation,” during which employee was defamed was retaliatory in nature, supporting the claim

of extreme and outrageous conduct. 318 Ill. App. 3d at 748.

In Fenner v. Freeburg Community High School District No. 77, allegations of a school’s

failure to investigate a complaint of hazing of a child on the school bus, despite prior complaints,

supported allegations the conduct was extreme and outrageous. No. 15-0729-DRH, 2016 U.S. Dist.

LEXIS 19100, at *3 (S.D. Ill. Feb. 16, 2016). In Hankins v. Alpha Kappa Alpha Sorority, Inc.,

extreme physical and mental abuse and hazing by sorority members toward another pledge alleged

extreme and outrageous conduct. 447 F. Supp. 3d 672, 683-84 (N.D. Ill. 2020).

Here, the Latin Defendants’ (a) disregard of the cyberbullying report from Nate (a minor

child) who reported extreme distress from the cyberbullying itself and was otherwise known to the

school personnel to be emotionally and psychologically at risk, (b) interference with parental

discretion to obtain medical care for Nate by not informing the parents of the report, and (c) efforts

to quash the cyberbullying report to protect the reputational interests of the school by denying the

cyberbullying and victim-blaming the child—which are the allegations in this case—supports that

extreme and outrageous conduct is indeed pled here. See Calumet City, Kolegas, Graham, Fenner,

and Hankins, supra.

B. Plaintiffs Sufficiently Plead That The Latin Defendants Knew There Was A
High Probability Their Conduct Would Cause Nate Severe Emotional
Distress.
Plaintiffs also allege that the Latin Defendants knew there was a high probability that their

conduct—e.g., exacerbating emotional and psychological injury to a child over whom they had

power and control and leaving that child to bear the weight of a cyberbullying injury alone—would

100
 cause emotional distress. See Doe v. Calumet City, 161 Ill. 2d 374, 392 (1994); Kornick, 2023 IL

App (2d) 220197, ¶ 22 (summary judgment reversed where question of fact remained as to whether
FILED DATE: 3/15/2024 11:48 AM 2022L003763

defendant should have known that vile and disturbing messages sent to plaintiff’s teenage son

would be seen by plaintiff and cause her distress). Plaintiffs have alleged facts to support that

suicide was a foreseeable harm flowing from the Latin Defendants’ conduct and, therefore,

Plaintiffs certainly plead sufficient facts to support that a high probability of severe emotional

harm was also known to the Latin Defendants. See Section I.A.3., I.B.1, supra.

C. Plaintiffs Sufficiently Plead That The Latin Defendants’ Conduct Caused Nate
Severe Emotional Distress.
Plaintiffs allege that Nate told Hennessy that he was extremely frustrated and beyond angry

and thus Hennessy knew that he was already severely distressed when he came to her. (TAC, ¶

316.) Hennessy’s shameful decision, with the other Latin Defendants, to forsake Nate in his

moment of severe need is expressly alleged to have exacerbated and cause Nate severe emotional

distress. (Id. ¶¶ 691-99; supra, 9-11.) Indeed, Nate was researching suicide following his meeting

with Hennessy, reflecting that she did nothing to make him feel better from the trauma he was

enduring. (Id. ¶ 342.) The reasonable inference in favor of Plaintiffs is supported and the cause of

extreme emotional distress to Nate is pled. E.g., Hankins, 447 F. Supp. 3d at 683-84 (survival

claim for IIED stated).

For all these reasons, this Court should deny the Latin Defendants’ motions.52

X. THE BRONSTEINS PLEAD A CLAIM FOR INTENTIONAL INFLICTION OF

EMOTIONAL DISTRESS AGAINST ALL DEENDANTS (COUNT VI).
Just as the Latin Defendants engaged in extreme and outrageous conduct as to Nate before

he died, all Defendants engaged in extreme and outrageous conduct as to the Bronsteins after

52
(Latin Br. at 23-27; Dunn Mot. at 6-7; Von Ogden Mot. at 6-8; Hennessy Mot. at 6-7; Kranz Mot. at 6-
7; Knoche Mot. at 7-8.)

101
 Nate’s death. (TAC, Count VI.) While each filed a motion to dismiss claiming pleading

deficiencies and arguing litigation privilege,53 (e.g., Latin Br. at 27-28), these arguments lack merit
FILED DATE: 3/15/2024 11:48 AM 2022L003763

and should be denied.

As an initial matter, each of the three foundational factors identified by the Supreme Court

that weigh in favor of outrageous conduct are present here. Each of the Defendants had (and has)

awareness that the Bronsteins—who lost their 15-year old son to suicide—are particularly

susceptible to emotional distress regarding any conduct related to their son’s death. See Calumet

City, 161 Ill. 2d at 393-94; Kolegas, 154 Ill. 2d at 21.

Further, Defendants stand in a position of authority over the Bronsteins—situationally.

Like the radio hosts who controlled the airwaves and acted in a depraved manner while on the

radio only to then hang up on the guest and prevent his response to the terrible things the hosts

said about his wife and child, Kolegas, 154 Ill. 2d at 22-23, Defendants were and/or still are in a

position of power over the Bronsteins because they control access to all the information, and the

ability to conduct the investigations that they are required to do by law (under the Act) and best

practices, but don’t. (TAC, ¶¶ 87-90, 728-29; see also id. 71-81; Exhibit B.); see also 105 ILCS

5/27-23.7(b) (policy mandate (5)). Indeed,

 Dunn was, and Hagerman now is, the Head of School at Latin
 Koo was the Chairman of the Board
 Greenwood was the Assistant Head of School
 Von Ogden was the Head of Upper School

(TAC, ¶¶ 6-8, 13-15; Exhibit B.) These are the people who could have, and should have, called

for an investigation, and who had/have an ongoing obligation to provide information to the

53
The litigation privilege argument raised by the Latin Defendants, Greenwood and Hagerman in each of
their motions to dismiss is addressed in Plaintiffs’ Opposition to Defendant David Koo’s Combined Section
2-619.1 Motion to Dismiss Count VI and VIII of Plaintiffs’ Third Amended Complaint, and incorporated
herein by reference in response to the Latin Defendants, Greenwood and Hagerman’s motions.

102
 Bronsteins under the Act, which mandates an investigation and keeping parents informed. (TAC,

¶¶ 87-90, 728-29); see also 105 ILCS 5/27-23.7(b) (policy mandate (5)). As for Hennessy, as a
FILED DATE: 3/15/2024 11:48 AM 2022L003763

Dean of Students, and Kranz and Knoche, as mental health counselors, their “position of authority”

appears less, but they are still part of the school, failed themselves to comply with the Act, and are

in the know while the Bronsteins are kept in the dark. (TAC, ¶¶ 9-10, 12, 728-29.) See, e.g., supra

at 3-11. As for legitimacy for any of these Defendants’ conduct, no allegations are pled, so this

factor cannot weigh against the Bronsteins at the pleading stage.

Taking these factors into account, the question is whether the Bronsteins have pled—not

proven—allegations of extreme and outrageous conduct. See, e.g., Calumet City, 161 Ill. 2d at 392;

Graham, 318 Ill. App. 3d at 745. While there is significant information that has always been, and

continues to be, withheld from the Bronsteins, (e.g., TAC, ¶ 171, 728-29), they know with certainty

that their deep grief and distress over the loss of their son at 15-years old has been unnecessarily

and intentionally compounded by Latin and its agents. (Id. ¶¶ 730-34.) The depths of Defendants’

depravity, however, has revealed itself over time and continued, no doubt, with far more to

uncover, (e.g., id. ¶¶ 171, 429, 588-620), including the extent to which Defendants have messaged

falsely about Nate and the Bronsteins to third parties, including families in the Latin community

and other school communities like Rye Country Day School where Dunn now works, (id. ¶¶ 7,

429, 549-50, 560-68, 756).

This Court has heard much through the TAC and in this opposition about what happened

to Nate, but the wrongdoing did not stop there. Once Nate died by suicide Latin faced a much

worse dilemma than a cyberbullying scandal. (Id. ¶¶ 406-08, 411, 419-20, 424, 431 (not following

normal “crisis” response).) Following Nate’s death, the school faced an even bigger suicide

scandal while Latin remained (by choice) in non-compliance with the Bullying Prevention Act.

103
 (Id. ¶¶ 588-620; see also id. 22-24, 82-85.); The Latin Defendants did nothing to follow Latin’s

own purported standards or the law when Nate reported cyberbullying, and they were continuing
FILED DATE: 3/15/2024 11:48 AM 2022L003763

their non-compliance as even more cyberbullying reports were made to the school. (Id. ¶¶ 87, 367-

68, 387-91, 450-65, 720.) In addition, Latin faced a suicide scandal knowing that the Latin

Defendants interfered with and deprived the Bronsteins of their discretion to take action to obtain

appropriate medical care for Nate. See, e.g., supra at 3-11.

To act with any iota of genuine compassion toward the Bronsteins following the death of

their son was apparently not an option because doing so would require, at a minimum, telling them

what happened to their son—that he had been cyberbullied, that he had suffered, that the Latin

Defendants all knew this, but they did nothing to help him and actually turned the bullying against

Nate and sent him out the door of Latin to bear his distress alone. See, e.g, supra at 3-11. Instead,

the Latin Defendants doubled down, and they were joined by other agents of Latin (including

Greenwood and Koo) who, if they did not know about the cyberbullying before, certainly learned

right away about it and joined the campaign of silence toward the Bronsteins and misinformation

to everyone else. (TAC ¶¶ 7, 60-69, 429, 432-433, 466-547, 552-56, 549-50, 560-68, 756; see also

id. ¶¶ 717-734.)

The main theme of the misinformation to be spread to the Latin community and other third

parties was as follows: the mother (Mrs. Bronstein) is crazy and Nate’s was no angel. (Id. ¶¶ 429,

550, 756.) This messaging was intended to be spread generally by a grassroots effort, (id. ¶ 550),

which means getting the parents and families to talk and spreading the message across the City by,

effectively, word of mouth. It’s a particularly effective and cruel method of harm. A little bit like

the rude and demeaning police officer in Calumet City, 161 Ill. 2d at 394, who added to the distress

of a sexual assault victim worried about the safety of her children. Defendants messaging was rude

104
 and demeaning about the Bronsteins (grieving parents) and their deceased son for the purpose of

covering up the Latin Defendants’ role in Nate’s death.

FILED DATE: 3/15/2024 11:48 AM 2022L003763

In this regard, Defendants were similar to the employer in Graham, 318 Ill. App. 3d at 748,

who ran a “sham investigation” while defaming the employee all along the way. Here, Defendants

suggested an investigation once the Bronsteins found out about the cyberbullying two weeks after

Nate’s death from a concerned parent, but they were lying to the Bronsteins all the while the

grassroots efforts that started the weekend after Nate’s death, and continued after, with a campaign

of misinformation.54 (TAC ¶¶ 7, 60-69, 429, 432-433, 466-547, 552-56, 549-50, 560-68, 756; see

also id. ¶¶ 717-734.) The Latin Defendants, supported by Greenwood who became a lead

communicator for the school, were also still actively concealing their role in Nate’s death, all to

happy to have the Bronsteins focused on the cyberbullies, i.e., Latin students, and not Latin itself.55

(Id. ¶¶ 482-507, 510, 552-56.)

The need to quash the now tragic suicide scandal became even more necessary when a

separate scandal followed Hagerman, the new Head of School replacing Dunn, to Latin. (Id. ¶¶

569-581.) Hagerman engaged in misleading messaging to the Latin community in relation to his

own scandal, consistent with the misleading messaging on the Bronstein family—reflecting that

bad habits don’t stop at Latin with the new change of guard. (Id.) This is critical with respect to

54
An example of Latin’s false impression of action, while doing nothing is when, at the Bronsteins first
meeting with Dunn and Greenwood after learning about the cyberbullying, Dunn—who had already by
caught lying to the Bronsteins—claimed Latin was engaged in “fact finding.” (TAC, ¶¶ 497-506.) Dunn
then had Von Ogden and Hennessy conduct a meeting with the JV basketball team where nothing of
substance occurred, so that he could suggest at the next meeting with the Bronsteins that “fact finding” was
proceeding. (Id. ¶¶ 508-511, 518-19.)
55
In addition to the efforts to give a (false) impression of an investigation while the grassroots effort
continued, Dunn prevented a meeting between the Bronsteins and the parents of one of the cyberbullies
even though both sets of parents had told Dunn separately they wanted to meet. (TAC, ¶¶ 497-506, 512-
17.) Connecting parents, particularly the one parent with personal information about Nate’s cyberbullying
report (although she did not know it at the time), would unravel Latin’s effort to keep the Bronsteins focused
on blaming the kids and in the dark about the Latin Defendants’ conduct. (Id. ¶¶ 510, 357.)

105
 the Bronsteins’ IIED claim because Hagerman has himself failed to commence the investigations

required by best practices and the Bullying Prevention Law, which is a continuing duty imposed
FILED DATE: 3/15/2024 11:48 AM 2022L003763

upon Latin and its personnel (now Hagerman) that does not go away with the passage of time or

noncompliance. (TAC, ¶¶ 87-90, 625-28, 727-22; see also id. 71-81; Exhibit B.); see also 105

ILCS 5/27-23.7(b) (policy mandate (5)). In addition to his conduct in continuing non-compliance

with the Act and withholding information from the Bronsteins to which they are entitled, (id.),

Hagerman has signed on to the cover up efforts continued at Latin, (id.), including the extreme and

outrageous efforts to malign the Bronsteins (and Nate himself) in order to divert attention from

Latin as it continues to prioritize reputation first. (TAC, ¶¶ 727, 732.) See also supra at 7-12.

It is within the context of these facts alleging both an individual and concerted effort of

concealment and withholding of information from the Bronsteins while simultaneously continuing

the maligning messaging to third parties, including the Latin community, about the Bronsteins and

Nate, that the Defendants’ conduct is extreme and outrageous. Affirmative conduct is alleged on

the part of each Defendant, which is directed at the Bronsteins and/or toward third parties to the

determent of the Bronsteins who certainly come to learn of these efforts to malign, as alleged in

the TAC. See Kornick, 2023 IL App (2d) 220197, ¶ 22 (question of fact remained as to whether

defendant should have known that vile and disturbing messages sent to plaintiff’s teenage son

(third party) would be seen by plaintiff and cause her distress).56 The Defendants know that their

efforts will cause emotional distress to the Bronsteins, and in fact it does. (TAC, Count VI.)

Accordingly, Plaintiffs allegations are more than sufficient to state a, IIED claim against all

56
Defendants claim that the conduct alleged is only passive, but that conclusion is contradicted by the
allegations in the TAC. Further, Defendants rely on cases decided at summary judgment or trial (Latin Br.
at 28 (citing Adams v. Sussman & Hertzberg, Ltd., 292 Ill. App. 3d 30 (1st Dist. 1997) (JNOV) and DiPietro
v. GATX Corp., 2020 IL App (1st) 192196, ¶ 10 (summary judgment)) or vastly different factually, (id.
(citing Duffy v. Orlan Brook Condominium Owners’ Ass’n, 2012 IL App (1st) 113577, ¶ 10 (failure to make
repairs by condo board)).

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 Defendants. See, e.g., Calumet City, 161 Ill. 2d at 392 (reversing dismissal of IIED claim);

Graham, 318 Ill. App. 3d at 745 (same); Kolegas, 154 Ill. 2d at 20-21 (same); Kornick, 2023 IL
FILED DATE: 3/15/2024 11:48 AM 2022L003763

App (2d) 220197, ¶ 22 (summary judgment reversed).

XI. LATIN’S MOTION TO STRIKE IS WITHOUT BASIS.

Last, Latin seeks to strike certain allegations as “immaterial.” (Latin Br. at 35-36.) Latin

initially points to the TAC’s length generally, but it cites no authority that mere breadth or extent

of allegations would violate any provision of Illinois civil procedure or that a pleading page limit

exists. Latin further argues that some alleged facts are “evidentiary” in nature. In setting forth the

minimum pleading standards, Illinois law does not prohibit detailed pleading, but merely holds

that a “pleader is not required to set out his evidence,” People ex rel. Fahner v. Carriage Way West,

Inc., 88 Ill. 2d 300, 308 (1981), or plead “every conceivably relevant fact,” Kirwan v. Linconshire

Riverwoods Fire Prot. Dist., 349 Ill. App. 3d 150, 156-157 (2d Dist. 2004). Indeed, as litigants are

often challenged for failing to plead sufficient facts to state a claim, a litigant should not be

penalized for a defendant’s discomfort over the extent of relevant facts pled.

Latin next argues that certain paragraphs are “immaterial” to the essential elements of the

actions pled. While this is a proper Section 2-615 argument, it fails nonetheless. “Fact pleading, as

opposed to notice pleading, is required in Illinois; accordingly, a plaintiff must allege facts that are

sufficient to bring his claim within the scope of a legally recognized cause of action.” Teter v.

Clemens, 112 Ill. 2d 252, 256 (1986). Fact pleading is especially critical when a higher pleading

standard, such as that sufficient to plead willful and wanton, is required, which necessitates

supporting details and not mere characterizations. See Oropeza v. Bd. of Educ., 238 Ill. App. 3d

399, 403 (1st Dist. 1992).

In reviewing a complaint on pleading motion practice, a court must construe “pleadings

liberally” and “all reasonable inferences therefrom in favor of the plaintiff,” Visvardis v. Eric P.

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 Ferleger, P.C., 375 Ill. App. 3d 719, 724 (1st Dist. 2007). Ultimately, as long as there is some

potential relevance to a cause of action alleged, a motion to strike should be denied. See, e.g.,
FILED DATE: 3/15/2024 11:48 AM 2022L003763

Pearson v. Devon Bank, 2021 Ill. Cir. LEXIS 1281, *5 (Cook County Cir. Ct. June 23, 2021)

(denying motion to strike where allegations relating to other entities were not immaterial to

fiduciary duty claim against defendant where allegations could be relevant to defendant’s conduct);

Ciolino v. Simon, 2019 Ill. Cir. LEXIS 26579 (Cook County Cir. Ct. Jan. 22, 2019) (denying motion

to strike where allegations relating to reporter being a “washed-up journalist”, and having a history

of substance abuse and being “mentally unstable”, which “sidelined his career” and caused him to

be “seeth[ingly envious]”, were potentially relevant to conspiracy to defame claims).

Here, the facts Latin challenges are not at all immaterial. Rather, they are central to

Plaintiffs’ causes of action, including describing important background to the operative events in

this tragic story. To wit:

 Facts pled relating to the termination of the prior Latin administrator, after she expressed
concern with how the school handled student safety concern incidents, including refusing
to inform parents of safety incidents, (TAC, ¶¶44-55) and Latin’s failure to address an anti-
Semitic bullying incident after Nate’s death, (id., ¶¶636-643), are relevant to, at minimum,
Latin’s (a) pattern of conduct in not notifying parents (as required under the Act (Count
II)), (b) unwillingness to enforce any anti-bullying policy, see Johnson v. Federal Reserve
Bank, 199 Ill. App. 3d 427, 431 (1st Dist. 1990) (ancillary facts pled may assist in
establishing a pattern of conduct and intent), as well as (c) wilful and wanton conduct.

 Facts pled relating to text messages in the Hoop Dreams group chat after Nate’s death,
(TAC, ¶¶434-44), along with other reporting to Latin of bullying incidents relating to Nate,
including the “kill yourself” message, (id., ¶¶445-65), illustrating Latin’s failure, before or
after death, to properly address Nate’s bullying, are relevant to show (a) wilful and wanton
conduct, see Pickering v. Owens-Corning Fiberglas Corp., 265 Ill. App. 3d 806, 812 (5th
Dist. 1994) (“no error in the jury hearing evidence of defendant’s wilful and wanton
misconduct in the wrongful death action as the complaint in that cause include[d] a count
alleging such wilful and wanton misconduct … [and] wilful and wanton misconduct is a
ground for seeking recovery of pecuniary damages in a wrongful death action”), as well as
(b) the continuing (post-death) harm caused to the Bronsteins, as alleged in their claim for
intentional infliction of emotional distress (Count VI) (see Johnson, 199 Ill. App. 3d at 432
(conduct continuing after defendant’s knowledge of plaintiff’s susceptibility to emotional
distress relevant to IIED claim)). The mere fact these allegations involved a time-period

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 subsequent to the central incident is not dispositive. See, e.g., Hines v. Allstate Ins. Co.,
298 Ill. App. 3d 585, 589-90 (4th Dist. 1998) (actions taken after limitations period expired
relevant to estoppel claim); Fitzkee v. Hoeflin, 187 Ill. App. 514, 522 (2d Dist. 1914)
FILED DATE: 3/15/2024 11:48 AM 2022L003763

(conduct of defendant after execution of contract evidence of fraudulent intent at time of

execution).

 Facts pled relating to the publicly available “Survivors of Latin” testimonies, where other
students recounted Latin’s deliberate indifference to abhorrent incidents of bullying,
including numerous references to suicide (TAC ¶¶37, 64-68, Ex. B) are relevant to, at
minimum, (a) wilful and wanton conduct and (b) the foreseeability element of the
Bronstein’s claim for wrongful death (Count I). See, e.g., Doe, 2016 IL App (1st) 153272,
¶10 (“when a plaintiff seeks to recover damages predicated upon a decedent’s suicide,
allegedly brought about through the acts of the defendant, the plaintiff must do more than
plead facts which, if proven, would establish that the defendant’s conduct was a cause in
fact of the suicide. [A] plaintiff must plead facts demonstrating that the suicide was
foreseeable, i.e., that it was a likely result of the defendant’s conduct.”) (int. cit. omitted).

 Facts pled relating to Latin’s attempt to quash any scandal relating to its outgoing Head of
School’s involvement with Nate’s death, (TAC, ¶¶557-568), and co-existent scandal
relating to its incoming Head of School (which especially motivated its need to suppress
other existing scandals), (TAC ¶¶569-581) are relevant toward Latin’s aim to protect its
own reputation at all costs, including seeking to hide all wrongdoing relating to Nate’s
death, therein continuing harm to the Bronsteins via post-death conduct as pled in their
IIED count (Count VI).

Latin’s cited law for this argument, (Latin Br. at 35), is not on point. Doe v. Coe, 2019 IL

123521, addressed questions of negligent hiring and retention. Id. at ¶ 24. The court held that post-

assault allegations were not relevant to pre-assault culpability in negligence. Id. at ¶29. Here, the

Bronsteins’ post-death allegations are, at minimum, relevant to their IIED claim (Count VI),

arising out of Latin’s post-death conduct, as well as to general issues of intent, knowledge, willful

and wanton conduct and pattern of conduct. Connor v. Merrill Lynch Realty, 220 Ill. App. 3d 522

(1st Dist. 1991) and First of Am. Bank, N.A. v. Netsch, 166 Ill. 2d 165 (1995) are not remotely

analogous because they did not even involve motions to strike allegations in a complaint, but rather

addressed summary judgment decisions based on the factual record. For these reasons, Latin’s

motion to strike should be denied.

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 CONCLUSION

For all the reasons stated herein, Plaintiffs respectfully request that this Court deny:
FILED DATE: 3/15/2024 11:48 AM 2022L003763

(1) Latin School of Chicago’s Section 2-619.1 Motion to Dismiss Plaintiffs’ Third Amended

Complaint; (2) Randall Dunn’s Section 2-619.1 Motion to Dismiss Plaintiffs’ Third Amended

Complaint; (3) Kristine Von Ogden’s Section 2-619.1 Motion to Dismiss Plaintiffs’ Third

Amended Complaint; (4) Bridget Hennessy’s Section 2-619.1 Motion to Dismiss Plaintiffs’ Third

Amended Complaint; (5) Jane Knoche’s Section 2-615 Motion to Dismiss Plaintiffs’ Third

Amended Complaint; (6) Anneliese Kranz’s Section 2-615 Corrected Motion to Dismiss Plaintiffs’

Third Amended Complaint; (7) Shelley Greenwood’s Section 2-619.1 Motion to Dismiss

Plaintiffs’ Third Amended Complaint; and (8) Thomas Hagerman’s Section 2-619.1 Motion to

Dismiss Plaintiffs’ Third Amended Complaint, and grant such other and further relief as this Court

deems just and appropriate.

Dated: March 15, 2024 Respectfully submitted,

By: /s/ Danielle J. Gould

One of Plaintiffs’ Attorneys

Danielle J. Gould Todd F. Flood

Victoria R. Collado Flood Law, PLLC
Alex D. Marks 155 W. Congress Street, Suite 603
Christine Eduardo Detroit, Michigan 48226
Burke, Warren, Mackay & Serritella, P.C. (248) 547-1032
330 N. Wabash Ave, 21st Floor tflood@floodlaw.com
Chicago, Illinois 60611
(312) 840-7000 Michael D. Weaver
dgould@burkelaw.com Plunkett Cooney PLC
vcollado@burkelaw.com 38505 Woodward Avenue, Suite 2000
amarks@burkelaw.com Bloomfield Hills, MI 48304
ceduardo@burkelaw.com (248) 901-4025
Firm ID No. 41704 mweaver@plunkettcooney.com

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