Kobylanski v. Chicago Bd. of Ed.

• Decision Date: 23 August 1974
• Docket Number: No. 58992,58992
• Citation: 317 N.E.2d 714,22 Ill.App.3d 551
• Parties: Barbara KOBYLANSKI, a minor By Walter Kobylanski, her parent and next friend, Plaintiff-Appellant, v. CHICAGO BOARD OF EDUCATION, a municipal corporation, and James Lecos, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 714

317 N.E.2d 714

22 Ill.App.3d 551

Barbara KOBYLANSKI, a minor By Walter Kobylanski, her parent and next friend, Plaintiff-Appellant, v. CHICAGO BOARD OF EDUCATION, a municipal corporation, and James Lecos, Defendants-Appellees.

No. 58992.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 23, 1974.

Rehearing Denied Sept. 23, 1974.

Jerome E. Cihak and Winkler & Fornelli, Ltd., Chicago, for plaintiff-appellant.

Morrill, Koutsky, Chuhak & Upton, Chicago, for Chicago Board of Education; Roland C. Upton, Philip J. McGuire, Chicago, of counsel.

Lord, Bissell & Brook, Chicago, for James Lecos; Stephen A. Milwid, Richard E. Mueller, John J. Berwanger, Chicago, of counsel.

LORENZ, Justice.

Plaintiff appeals from the orders of the trial court directing a verdict in favor of defendants James Lecos and the Chicago Board of Education and denying her post trial motion for a new trial. The action seeks to recover for personal injuries under the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1971, ch. 85, par. 1--101 et seq.) On appeal plaintiff contends that the orders of the trial court were improper since a prima facie case of negligence was proven against defendants.

The parties agree that the question presented is purely one of law. Plaintiff was injured during her seventh grade physical

education class at Mark Twain Elementary School in Chicago. She suffered spinal injuries when she fell while performing an exercise on an apparatus called the 'rings.' Lecos was the teacher of the class and had given instructions on the performance of the exercise prior to the accident. Defendants are covered by liability insurance policies. Plaintiff filed her amended complaint under the Local Governmental and Governmental Employees Tort Immunity Act alleging defendants' negligent conduct. Defendant's answers denied the allegations of negligence and set forth as an affirmative defense Section 34--84a of the School Code of 1961 (Ill.Rev.Stat.1971, ch. 122, par. 34--84a.) Plaintiff's reply denied the applicability of defendants' affirmative defense to the facts as pleaded in the amended complaint. At trial after plaintiff had presented her case, the trial court directed a verdict in favor of defendants. A post trial motion for a new trial was denied, the trial court finding that plaintiff had failed to sustain her burden of proving defendants' willful and wanton conduct as required by Section 34--84a of the School Code of 1961.

OPINION

Plaintiff concedes that she did not allege or prove defendants' willful and wanton conduct but contends that where, as here, a public entity or its employee has procured liability insurance, liability for personal injuries may be founded on ordinary negligence. Plaintiff argues that Section 34--84a of the School Code of 1961 is not applicable to the facts in this case.

Section 34--84a of the School Code of 1961 provides:

'Teachers and other certificated educational employees shall maintain discipline in the schools. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all a ctivities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.'

It was the trial judge's decision and is defendants' position that no liability can attach to a teacher for mere negligence in supervision or maintaining discipline because of the status conferred by this section; namely, that of a parent or guardian to all the students in the classroom. Liability of a parent for injuries to a child does not attach absent willful and wanton conduct. Mroczynski v. McGrath, 34 Ill.2d 451, 216 N.E.2d 137; Nudd v. Matsoukas, 7 Ill.2d 608, 131 N.E.2d 525.

Although Section 34--84a has never been subject to appellate review for the question under consideration here, there are several decisions that have considered identical language found in Section 24--24 of the School Code of 1961 (Ill.Rev.Stat.1971, ch. 122, par. 24--24.) ¹

In Merrill v. Catholic Bishop of Chicago, 8 Ill.App.3d 910, 290 N.E.2d 259, plaintiff, a seventh grade student, was sent by his teacher to a room to cut lengths of wire from a coil to use in an art project. While doing so, he was struck in the left eye by the end of the wire resulting in the loss of vision in that eye. His action for negligence was dismissed for failure to state a cause of action. The Appellate Court affirmed holding that the statutory language did not limit the liability of a teacher to only disciplinary situations, but also to any activities directed by a teacher as part of the school program. (Accord, Mancha v. Field Museum, 5 Ill.App.3d 699, 283 N.E.2d 899; Woodman v. Litchfield Community School District No. 12, 102 Ill.App.2d 330, 242 N.E.2d 780; Fustin v. Board of Education of Community Unit District No. 2, 101 Ill.App.2d 113, 242 N.E.2d 308.

It cannot be disputed that plaintiff's injuries in the instant case occurred during activities directed by a teacher as part of the school program. In view of the interpretation given to identical language in Section 24--24, we conclude that Section 34--84a of the School Code of 1961 is applicable to the...