Clay v. Chicago Bd. of Ed., 59621

• Citation: 22 Ill.App.3d 437,318 N.E.2d 153
• Decision Date: 13 September 1974
• Docket Number: No. 59621,59621
• Parties: Georgia CLAY, a minor, By Bertha James, her mother and next friend, Plaintiff-Appellant, v. The CHICAGO BOARD OF EDUCATION and David Reed, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 153

318 N.E.2d 153

22 Ill.App.3d 437

Georgia CLAY, a minor, By Bertha James, her mother and next

friend, Plaintiff-Appellant, v. The CHICAGO BOARD OF EDUCATION and David Reed, Defendants-Appellees.

No. 59621.

Appellate Court of Illinois, First District, Fifth Division.

Sept. 13, 1974.

[22 Ill.App.3d 438] Martin Fertel and Gordon, Brustin & Schaefer, Ltd., Chicago (Michael W. Schaefer, Chicago, of counsel), for plaintiff-appellant.

Glazer & Cohan, Ltd., Chicago (Frank Glazer, Chicago, of counsel), for defendants-appellees.

DRUCKER, Justice.

This case involves a personal injury action for damages arising when David Reed ¹ allegedly struck plaintiff, a fellow student, while in a classroom of the Chicago Board of Education (hereafter defendant). Plaintiff appeals from an order of the trial court holding that plaintiff's second amended complaint be dismissed with prejudice as against defendant.

Count I of plaintiff's second amended complaint alleged that on March 6, 1972, plaintiff was a minor, 11 years old, and was in the sixth grade at defendant's elementary school; that defendant had supervision and control of the school; that a Miss Wood was plaintiff's teacher, was an employee of defendant and was acting within the course and scope of her employment; that on March 6, 1972, David Reed was a fellow classmate of plaintiff in defendant's school; and that on that day David Reed struck plaintiff in the face and right eye without provocation causing injury to plaintiff. Plaintiff further alleged that defendant was guilty of one or more of the following wilful and wanton acts or omissions:

a. failed to exercise that degree of supervision commensurate with the facts and circumstances then in existence;

b. caused or permitted their teacher and employee, Miss Wood to leave said classroom unattended, when she knew or should have known that injury to the plaintiff and others would occur;

c. failed to provide adequate protection for the students in the classroom;

d. permitted dangerous instrumentalities to be left near or in the hands of minor children so that as a direct and proximate result, thereof, plaintiff was injured;

e. caused or permitted injury to plaintiff to occur;

f. permitted or allowed the minor defendant, David Reed, to repeatedly strike plaintiff, although they knew or should have known that said minor defendant, David Reed, was involved in similar occurrences with other students on several other occasions.

On appeal plaintiff argues that (1) the second amended complaint adequately stated a cause of action, and (2) defendant's motion to dismiss did not set forth specific grounds for the relief requested.

OPINION

[1-3] Plaintiff contends that she has stated facts sufficient to allege a cause of action in wilful and wanton negligence ² against defendant. A motion to dismiss admits all facts properly pleaded in the complaint. (Acorn Auto Driving School v. Board of Education, 27 Ill.2d 93, 187 N.E.2d 722.) From the complaint the relevant facts as alleged and taken as true are that plaintiff and David Reed were fellow students at defendant's elementary school; that David Reed acting without provocation struck plaintiff in the face causing injuries; that Miss Wood, plaintiff's teacher, was absent from the classroom when these events took place; and that defendant knew or should have known of David Reed's propensities for such violence. Although plaintiff has alleged that defendant permitted a dangerous instrumentality to be left near or in the hands of minor children, nowhere in the complaint is it stated just what this instrumentality was. ³

'[4-6] A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the plaintiff to relief.' (Courtney v. Board of Ed. of Chicago, 6 Ill.App.3d 424, 425, 286 N.E.2d 25, 26.) In order to state a cause of action for wilful and wanton negligence, facts must be alleged from which the law would raise a duty and a showing that the omission of such duty resulted in injury. The mere conclusory allegation of wilful and wanton negligence is not sufficient. (Ingram v. New York Central Railroad Company, 30 Ill.App.2d 455, 175 N.E.2d 129.) The definition of wilful and wanton negligence, which has been repeatedly cited by courts of this state, was enunciated in Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 583, 69 N.E. 293, 300, as:

'A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.'

As mentioned above, unless plaintiff can show a breach of some duty owed to her by defendant, there can be no recovery in tort. (Boyd v. Racine Currency Exchange, Inc., 56 Ill.2d 95, 306 N.E.2d 39.) In Boyd the court, noting that fore-seeability alone does not result in the imposition of a duty, quoted from Lance v. Senior, 36 Ill.2d 516, 224 N.E.2d 231, that '(t)he likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing the burden upon the defendant, must also be taken into account.'

Several cases included in defendant's motion to dismiss have particular relevance to the instant situation. In Woodman v. Litchfield Comm. Sch. Dist. No. 12, 102 Ill.App.2d 330, 334, 242 N.E.2d 780, 782, plaintiff, a second grade student in one of defendant's schools,...