Fustin v. Board of Ed. of Community Unit Dist. No. 2

• Decision Date: 20 November 1968
• Docket Number: No. 68--45,68--45
• Citation: 101 Ill.App.2d 113,242 N.E.2d 308
• Parties: Greg FUSTIN, Plaintiff-Appellant, v. BOARD OF EDUCATION OF COMMUNITY UNIT DISTRICT NO. 2, a Municipal Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 308

242 N.E.2d 308

101 Ill.App.2d 113

Greg FUSTIN, Plaintiff-Appellant, v. BOARD OF EDUCATION OF COMMUNITY UNIT DISTRICT NO. 2, a Municipal Corporation, Defendant-Appellee.

No. 68--45.

Appellate Court of Illinois, Fifth District.

Nov. 20, 1968.

Elmer Jenkins, Benton, for appellant.

J. C. Mitchell and W. A. Armstrong, Marion, for appellee.

EBERSPACHER, Presiding Justice.

Plaintiff filed his complaint for damages alleging that the defendant Board of Education possessed, controlled, and managed a high school at Marion, and provided, managed, and controlled a basketball gymnasium for basketball games; that plaintiff was a member and player on the Benton Consolidated High School varsity basketball team and was participating in a basketball game between Marion and Benton, at Marion at the invitation of defendant, when a Marion player without provocation struck plaintiff in the face with his fist, causing plaintiff's injuries. The complaint further alleged that plaintiff was in the exercise of due care; that the game was controlled, managed, and supervised by defendant through its agents and charged the defendant with numerous acts or omissions of negligence in supervision of its offending player and the game, including failure to properly control and supervise such player with knowledge that such player did without provocation lose his temper and strike members of the opposing team, and that such person was a person likely to lose his temper and strike opposing participants, and failed to keep such player under control. The complaint also charged that defendant through its agents failed to maintain discipline of the players participating in an activity in violation of Section 24--24 of the School Code (Ch. 122, Ill.Rev.'d Stat.1965), the pertinent part of which is:

'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 activities 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.

Nothing in this Section affects the power of the board to establish rules with respect to discipline.

The board may make and enforce reasonable rules of conduct and sportsmanship for athletic and extracurricular school events. * * *:'

Defendant filed its motion to dismiss the complaint or in the alternative to strike the subparagraphs of the complaint which alleged the purported negligent acts and omissions of defendant. The motion was based on the 1965, Local Governmental Act (Ch. 85, Sec. 1--101 et seq., Ill.Rev'd Stat.1965) and particularly Sec. 3--108 of the Act, the pertinent part of which is:

'Except as otherwise provided by this Act * * * neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.'

In addition to contending that the complaint was substantially insufficient as a matter of law to allege a cause of action against the Defendant District 2, the motion contended that defendant was not liable under the doctrine of respondeat superior for the conduct of the offending player, and could not be charged with knowledge that he would commit any alleged crime or acts done without provocation or advance notice. The motion also contended that under Sec. 2--201 those persons responsible for the supervision of the game, alleged to be defendant's employees or agents, are not liable to plaintiff. That section provides:

'Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.'

And defendant contended that thus, defendant was not liable, as a matter of law by virtue of Sec. 2--109 of the Act, which provides:

'A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.'

The alternative motion was likewise based on Section 3--108, 2--201, and 2--109 of the Act, and the fact that the offending player was not the servant of defendant and that defendant was not chargeable, nor as a matter of law, bound by duty to assume that any person would commit unprovoked acts of violence.

At the hearing on the motion, plaintiff took leave to amend his complaint by insertion of the following paragraph:

'1a. That the defendant has contracted for liability insurance to the extent prayed for in the prayer of plaintiff's complaint.'

Leave to amend the complaint in that manner was granted, and the parties stipulated that defendant's motion should stand as the motion to dismiss and strike plaintiff's complaint as amended; thus for purposes of the motion the allegations of paragraph 1a of the complaint were admitted.

After hearing the motion the court ordered the complaint as amended dismissed and ordered judgment for defendant, from which order plaintiff has appealed.

In a recent decision of this Court, Woodman v. Litchfield Community School District No. 12, Ill.App., 242 N.E.2d 780, filed November 20, 1968, we held that a complaint alleging injuries to a second grade student in the class room resulting from improper supervision and enforcement of discipline by the teacher, was properly dismissed on motion, by reason of the provisions of the School Code, supra, and the Local Governmental Employees Tort Immunity Act, supra. The language of that opinion is here applicable in so far as the original complaint in this case is concerned. ¹ In the Woodman complaint there was no allegation of liability insurance on behalf of the District.

Plaintiff here contends that by the allegation of paragraph 1a, to the effect that the District had liability insurance to cover the occurrence, the defenses provided the District by the Tort Immunity Act were not available to defendant by virtue of Section 9--103 of that Act which provides in part:

'(a) A local public entity may contract for insurance against any loss or liability which may be imposed upon it under this Act. * * *

'(b) Every policy for insurance coverage issued to a local public entity shall provide or be endorsed to provide that the company issuing such policy waives any right to refuse payment or to deny liability thereto within the limits of said policy by reason of the non-liability of the insured public entity for the wrongful or negligent acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided in this Act.'

We note first, that Section 9--103 provides authority for a public entity to contract for insurance against 'liability which may be imposed upon it under this Act'. Here plaintiff has not alleged liability under the Tort Immunity Act but bases his alleged cause of action on common law negligence and a violation of Section 24--24 of the School Code. Neither does plaintiff's paragraph 1a allege that the insurance contracted for was contracted for pursuant to the authority of Sec. 9--103(a). Previous to the enactment of the Tort Immunity Act (approved Aug. 13, 1965), School Districts had, and still have authority to insure against liability of the board or its employees, resulting from negligent acts or omissions ², and to protect individual members of the board and its employees from liability by insurance from occurrences resulting in bodily injury while the individual was acting within the course or scope of his duties ³. Such provisions as are found in Section 34--18 para. 12 and Section 34--18.1 of the School Code, supra, do not require, as does Sec. 9--103 of the Tort Immunity Act, any waiver of defenses or immunity from suit. Furthermore 34--18 para. 12 and 34--18.1 of the School Code are not limited to insurance against liability arising under any statutory provision or particular Act as the insurance authorized by Sec. 9--103 is limited to insurance against liability imposed by the Tort Immunity Act. That Act deals only with immunities and does not purport to impose liability on School Districts where no liability...