Jarvis v. Herrin City Park Dist.

• Court: Appellate Court of Illinois
• Writing for the Court: EBERSPACHER; JONES; GEORGE J. MORAN; EBERSPACHER; JONES; GEORGE J. MORAN
• Citation: Jarvis v. Herrin City Park Dist., 285 N.E.2d 564, 6 Ill.App.3d 516 (Ill. App. 1972)
• Decision Date: 09 June 1972
• Docket Number: Gen. No. 70--103
• Parties: Cheryl Lynn JARVIS, a Minor by Jerry Jarvis, her Father and Next Friend, Plaintiff-Appellant, v. The HERRIN CITY PARK DISTRICT, a Municipal Corporation, Defendant-Appellee.

Page 564

285 N.E.2d 564

6 Ill.App.3d 516

Cheryl Lynn JARVIS, a Minor by Jerry Jarvis, her Father and Next Friend, Plaintiff-Appellant, v. The HERRIN CITY PARK DISTRICT, a Municipal Corporation Defendant-Appellee.

Gen. No. 70--103.

Appellate Court of Illinois, Fifth District.

June 9, 1972.

Supplemental Opinion on Denial of Rehearing July 12, 1972.

Harris & Lambert, Marion, for plaintiff-appellant.

August L. Fowler, Fowler & Novick, Marion, for defendant-appellee.

EBERSPACHER, Justice.

Plaintiff-appellant, a minor, by her father and next friend, filed suit against defendant-appellee on October 24, 1969, as a result of injuries she received June 29, 1969, on a children's sliding board-jungle bars combination owned and possessed by defendant and located in a park operated by defendant. The first count of the complaint charged defendant with an utter indifference to or conscious disregard for plaintiff's safety, which directly and proximately caused injury to the plaintiff. The second count charged defendant with negligence proximately causing plaintiff's injuries. The omissions alleged in each count were the same and fell into two categories: paragraph 6 and sub-paragraphs a, b, and c of paragraph 7 of each count concerned a failure to supervise the use of the park; sub-paragraphs d, e and f of paragraph 7 concerned a failure to maintain the park in the proper condition.

Defendant filed a motion to dismiss the complaint on the ground that it did not state a cause of action. Defendant's motion included a motion to strike paragraph 6 and sub-paragraphs a, b and c of paragraph 7 of each count because they were based on an alleged duty of supervision which did not exist. Defendant also moved to strike sub-paragraphs b, c, d, e and f of paragraph 7 of each count because none of them charged defendant with wilful or wanton negligence in connection with the condition of the park. Finally, defendant moved that plaintiff be required specifically to allege that defendant's conduct was wilful and wanton if she intended to charge defendant with wilful and wanton negligence, and that plaintiff be required to allege the particular respects in which the defendant allegedly failed to use reasonable care to maintain the sliding board in a reasonably safe condition.

Defendant based his motions on Ill.Rev.Stat. (1969) Ch. 85, § 3--106, which reads:

'Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used as a park, playground or open area for recreational purposes unless such local entity or poublic employee is guilty of willful and wanton negligence proximately causing such injury.'

and § 3--108(a) which reads:

'Except as otherwise provided by this Act and subject to subdivision (b) 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.'

On hearing the motion, the court upheld defendant's contentions. Count II was dismissed; paragraphs 6 and sub-paragraphs a, b, c of paragraph 7 of Count I were stricken; and the plaintiff was required to amend paragraph 7 of Count I so as to charge wilful and wanton negligence.

Plaintiff then submitted an amended complaint that averred substantially the same facts as the original complaint. (The counts were presented in reverse order, however, and the amended order is the manner in which they will be referred to in this opinion.) Defendant filed substantially the same motion to dismiss, again relying on Chapter 85, sections 3--106 and 3--108, Illinois Revised Statutes (1969). The trial court dismissed the portion of plaintiff's complaint averring negligence and the failure to supervise, and ordered plaintiff to amend the allegations in Count II based on an alleged condition of the property so as specifically to charge defendant with wilful and wanton negligence.

Plaintiff elected to stand upon her complaint and the court struck the subparagraphs based upon an alleged condition of the property. All charging paragraphs having been stricken, the court found that neither count stated a cause of action and each was ordered dismissed. Plaintiff refused to seek leave to amend and the court entered judgment in favor of the defendant and against the plaintiff.

The plaintiff raises a number of contentions on this appeal. Initially, she argues here for the first time that Sections 3--106 and 3--108 are unconstitutional in that they violate both the equal protection and due process clauses of the fourteenth amendment to the U.S. Constitution and the special legislation prohibition of the former Illinois Constitution. However, the defendant points out that the plaintiff failed to raise any constitutional arguments before the trial court and therefore argues that she is now precluded from raising the issue before the appellate court.

The principle has been clearly stated by the court in Zehender & Factor, Inc. v. Murphy, 386 Ill. 258, 53 N.E.2d 944, at 946 (1944):

'It has been many times held by this court that the question of the constitutionality of a statute cannot be properly raised for the first time in this court, but must have been called to the attention of the trial court and ruled upon by it, and the person challenging its validity must have preserved proper exceptions to such rulings. (Citations omitted.) Assignments of error must be based upon the record itself and not merely upon arguments of counsel or upon the fact that the question might have been raised in the pleadings or during the trial.'

Furthermore, in a similar case, Meyers v. Board of Educ., 121 Ill.App.2d 186, 257 N.E.2d 183 (1970), the Court refused to consider arguments that Ill.Rev.Stat. Ch. 85, § 2--107, precluding the liability of a local public entity for libelous or slanderous actions by its employees, was unconstitutional. In that case, the trial court had dismissed the plaintiff's complaint alleging a slanderous statement by an employee of the Board of Education, after a motion by the defendant citing the statute. After noting that the plaintiff was arguing the constitutionality for the first time on appeal, the court cited numerous decisions holding that the question of the constitutionality of a statute cannot be raised for the first time in a court of review.

Finally, in Maloney v. Elmhurst Park Dist., 47 Ill.2d 367, 265 N.E.2d 654 (1970), the Court considered the constitutionality of the statutes in question in this case. However, in that case, after the plaintiff's complaint was dismissed, he subsequently filed a motion contesting the constitutionality, on which the trial court had ruled. In a recent criminal case, People v. Amerman, 50 Ill.2d 196, 279 N.E.2d 353, our Supreme Court has held that the question of constitutionality of a statute cannot be properly raised for the first time in a court of review.

In the present case, there is nothing in the record to indicate that the question was presented below. Nor does the plaintiff argue now that the issue was presented below. Accordingly, the issue has not been properly preserved for review, and we do not reach the question of the constitutionality of sections 3--106 and 3--108. We find that the trial court properly dismissed those portions of the complaint averring negligence and the failure to supervise, since § 3--106 bars suits based upon negligence and § 3--108 eliminates liability based upon a failure to supervise.

The plaintiff next argues that the trial court erred in dismissing those subparagraphs of Count II which alleged 'Utter Indifference to and Conscious Disregard for', instead of Wilful and Wanton. The trial court, in ordering plaintiff to amend her complaint to allege 'wilful and wanton negligence', seems to have been acting under the theory that plaintiff could state a cause of action under the statute only by such an allegation, using the words of the statute itself. We do not agree. 'In stating a cause of action which is derived from a statute, it is not necessary, in alleging the facts which bring plaintiff within it, to use the exact words of the statute, words of equivalent import being equally proper if it appears, from a reasonable interpretation of the allegations, that the redress sought falls squarely within the purview of the statute.' 71 C.J.S. Pleading § 86(c).

This rule is supported in Illinois by the terms of the Civil Practice Act. Pleadings are to be liberally construed and substantial averments of fact remain essential to stating a cause of action. 'A statute or ordinance must be construed according to its intent and meaning and a situation that is within the object, spirit and meaning of the statute is regarded as within the statute, although not within the letter; * * *.' McGill v. 830 S. Michigan Hotel, 68 Ill.App.2d 351, 216 N.E.2d 273, at 277 (1966).

As noted by the court in Hall v. Gruesen, 22 Ill.App.2d 465, 469, 161 N.E.2d 345, 346 (1959), 'The essential test of a complaint is that it inform the defendant of a valid claim.' Plaintiff in the instant case has, by pleading 'utter indifference to and conscious disregard for', more accurately informed defendant of the nature of the claim which it is called upon to meet than if she had pleaded 'wilful and wanton negligence'.

'Wilful and wanton negligence' is a term which has been turned to a variety of meanings. It has long been recognized in Illinois that the term includes conduct which is not in fact wilful but it of a nature that a presumption of wilfulness or wantonness is justified. In Russell v. Cleveland, C., C. and St. L. Ry. Co., 169 Ill.App. 149, 155 (1912), the court reversed a judgment for plaintiff who had been contributorily negligent. 'There is nothing in this record that shows any purpose or disposition upon the part of the servants of the defendant showing such a gross want of care and regard for...