Booker v. Chicago Bd. of Ed.

• Decision Date: 01 August 1979
• Docket Number: No. 76-1572,76-1572
• Citation: 394 N.E.2d 452,75 Ill.App.3d 381,31 Ill.Dec. 250
• Parties: , 31 Ill.Dec. 250 Jacqueline BOOKER, a minor by her mother and natural guardian, Margaret Booker, Plaintiff-Appellant, v. CHICAGO BOARD OF EDUCATION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 452

394 N.E.2d 452

75 Ill.App.3d 381, 31 Ill.Dec. 250

Jacqueline BOOKER, a minor by her mother and natural guardian, Margaret Booker, Plaintiff-Appellant, v. CHICAGO BOARD OF EDUCATION, Defendant-Appellee.

No. 76-1572.

Appellate Court of Illinois, First District, Third Division.

Aug. 1, 1979.

Rehearing Denied Sept. 25, 1979.

Alan D. Katz, Chase & Werner, Chicago, for plaintiff-appellant.

Frank Glazer, Ltd., Chicago, for defendant-appellee.

McGILLICUDDY, Justice:

The plaintiff appeals from two orders of the Circuit Court of Cook County dismissing her fourth amended complaint. On September 11, 1975, the plaintiff, Jacqueline Booker, a minor, filed her fourth amended complaint at law against the defendant Chicago Board of Education. The subject matter of the lawsuit is an incident that occurred at the James R. Doolittle Elementary School in Chicago, Illinois, on September 23, 1971, at which time the plaintiff was 10 years of age.

The plaintiff's fourth amended complaint alleged that she was a transfer student; that several of her classmates had threatened her with physical harm unless she made payments of money to them, and that her teacher was advised of these threats and the identity of the leader was made known to the teacher. On September 23, 1971, the teacher accompanied her class to the bathroom. The teacher remained in the hallway adjacent to the bathroom while the students, including the plaintiff, entered the bathroom. The teacher appointed as monitor the student the plaintiff had named as the leader of the classmates who had threatened her. While the plaintiff was inside the bathroom, she was physically assaulted by a group of her classmates.

Count I of the complaint alleged that the defendant, the Chicago Board of Education, operating by and through its agents, the teacher and the leader of the classmates, was liable for the injuries sustained by the plaintiff as a result of its wilful and wanton conduct.

Count II of the complaint alleged that the defendant was liable for the injuries sustained by the plaintiff as a result of its negligence.

Count III is identical to count I, and count IV is identical to count II, except for the additional paragraph 9 which stated, "That there was in full force and effect at the time of the occurrence a certain policy of insurance covering the defendant and occurrence alleged in this Count of the Complaint."

The defendant filed a motion to dismiss the plaintiff's complaint for failing to allege a cause of action. The defendant claimed that count I did not state a cause of action for wilful, wanton and reckless conduct pursuant to Clay v. Chicago Board of Education (1974), 22 Ill.App.3d 437, 318 N.E.2d 153. Concerning count II's allegations of negligence, the defendant asserted that pursuant to chapter 122, sec. 34-84a of the Illinois Revised Statutes, the defendant stands in the position of Loco parentis and is not responsible for acts of ordinary negligence. In addition, the defendant stated that counts III and IV were redundant and mere repetitions of counts I and II.

On October 21, 1975, the Circuit Court dismissed counts I and III of the plaintiff's complaint. On May 28, 1976, the court dismissed counts II and IV on the basis of Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 347 N.E.2d 705.

The issues presented for review are (1) whether the complaint stated a cause of action based upon negligence, and (2) whether the complaint stated a cause of action based upon wilful and wanton conduct.

The Civil Practice Act provides that pleadings are to be liberally construed with a view to doing substantial justice between the parties. (Ill. Rev.Stat., 1975, ch. 110, par. 33.) A motion to dismiss a complaint for failure to state a cause of action admits, for the purpose of ruling thereon, all facts properly pleaded. Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill.2d 93, 187 N.E.2d 722; Englehardt v. Triple X Chemical Laboratories, Inc. (1977), 53 Ill.App.3d 926, 11 Ill.Dec. 613, 369 N.E.2d 67.

The plaintiff maintains that counts II and IV state a cause of action for negligence. However, sections 24-24 and 34-84a of the Illinois' School Code provide in part:

"Teachers and other certificated educational employees shall maintain discipline in the schools, including school grounds which are owned or leased by the board and used for school purposes and activities. 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. . . ." Ill.Rev.Stat., 1975, ch. 122, pars. 24-24 and 34-84a.

This provision confers upon educators the status of parent or guardian to the students. (Kobylanski.) Because the doctrine of parental immunity precludes a child from suing his parents for injuries absent wilful and wanton misconduct (Mroczynski v. McGrath (1966), 34 Ill.2d 451, 216 N.E.2d 137; Nudd v. Matsoukas (1956), 7 Ill.2d 608, 131 N.E.2d 525), teachers and other certified educational employees are immune from suits for negligence arising out of matters relating to the discipline in and conduct of the schools and the school children. (Kobylanski.) In Gerrity v. Beatty (1978), 71 Ill.2d 47, 15 Ill.Dec. 639, 373 N.E.2d 1323, the court explained the policy considerations of this grant of immunity:

"The statutory provisions in question (sections 24-24 and 34-84a of the school code) reflect a legislative determination that the orderly conduct of the schools and the maintenance of a sound learning atmosphere require that there be a personal relationship between teacher and student in which the teacher has disciplinary and supervisory authority similar to that which exists between parent and child. It is evident that this relationship would be seriously jeopardized if teachers and school districts were amenable to ordinary negligence actions for accidents occurring in the course of the exercise of such authority."

The plaintiff argues that the statutory grant of immunity is inapplicable to this suit because the negligent action, the appointment as monitor of the leader of the classmates who threatened the plaintiff, does not involve disciplinary or supervisory activities. We disagree with the plaintiff's characterization of the teacher's actions and believe her actions most definitely pertain to her supervisory responsibilities. The plaintiff recognized this fact also in her complaint which alleges that the teacher "failed to prevent," "failed to protect," and "permitted and allowed the plaintiff to enter an area out of sight." Pursuant to the holding in Kobylanski, the teacher and school board are, therefore, immune from suit.

The plaintiff also asserts that the teacher appointed the monitor as her agent and servant. The school code refers specifically to "teachers and other certificated employees" standing in the relation of parents and guardians. Therefore, the plaintiff contends that the monitor, a non-certified employee, is not immune from suit for her acts of negligence. The plaintiff concluded that under the doctrine of respondeat superior, the defendant is accountable for the monitor's acts of negligence.

The temporary designation of a grade school student as monitor, however, does not make the student the agent and servant of the teacher or of the defendant. There are no allegations that the teacher delegated any responsibility or disciplinary powers to the student; we assume her function was to report any misbehavior to the teacher. This argument also fails.

We hold that the trial court properly dismissed counts II and IV of the plaintiff's complaint.

The plaintiff contends that counts I and III state a cause of action based upon...