Molitor v. Kaneland Community Unit Dist. No. 302

• Decision Date: 16 December 1959
• Docket Number: No. 302,No. 35249,A,302,35249
• Citation: 163 N.E.2d 89,18 Ill.2d 11,86 A.L.R.2d 469
• Parties: , 86 A.L.R.2d 469 Thomas MOLITOR, Appellant, v. KANELAND COMMUNITY UNIT DISTRICTppellee.
• Court: Illinois Supreme Court

Page 89

163 N.E.2d 89

18 Ill.2d 11, 86 A.L.R.2d 469

Thomas MOLITOR, Appellant, v. KANELAND COMMUNITY UNIT DISTRICT No. 302, Appellee.

No. 35249.

Supreme Court of Illinois.

Dec. 16, 1959.

Ried, Ochsenschlager, Murphy & Hupp, Aurora (Frank R. Reid, Jr., L. M. Ochsenschlager, William C. Murphy and Robert B. Hupp, Aurora, of counsel), for appellant.

Matthews, Jordan, Dean & Suhler, Aurora, Burrell & Holtan, Freeport, and Carbary & Carbary, Elgin (John T. Matthews, Aurora, David M. Burrell, Freeport, and Roger W. Eichmeier, Aurora, of counsel), for appellee.

KLINGBIEL, Justice.

Plaintiff, Thomas Molitor, a minor, by Peter his father and next friend, brought this action against Kaneland Community Unit School District for personal injuries sustained by plaintiff when the school bus in which he was riding left the road, allegedly as a result of the driver's negligence, hit a culvert, exploded and burned.

The complaint alleged, in substance, the negligence of the School District, through its agent and servant, the driver of the school bus; that plaintiff was in the exercise of such ordinary care for his own safety as could be reasonably expected of a boy of his age, intelligence, mental capacity and experience; that plaintiff sustained permanent and severe burns and injuries as a proximate result of defendant's negligence, and prayed for judgment in the amount of $56,000. Plaintiff further alleged that defendant is a voluntary unit school district organized and existing under the provisions of sections 8-9 to 8-13 of the School Code and operates school buses within the district pursuant to section 29-5. Ill.Rev.Stat.1957, chap. 122, pars. 8-9 to 8-13 and par. 29-5.

The complaint contained no allegation of the existence of insurance of other nonpublic funds out of which a judgment against defendant could be satisfied. Although plaintiff's abstract of the record shows that defendant school district did carry public liability insurance with limits of $20,000 for each person injured and $100,000 for each occurrence, plaintiff states that he purposely omitted such an allegation from his complaint.

Defendant's motion to dismiss the complaint on the ground that a school district is immune from liability for tort was sustained by the trial court, and a judgment was entered in favor of defendant. Plaintiff elected to stand on his complaint and sought a direct appeal to this court on the ground that the dismissal of his action would violate his constitutional rights. At that time we held that no fairly debatable constitutional question was presented so as to give this court jurisdiction on direct appeal, and accordingly the cause was transferred to the Appellate Court for the Second District. The Appellate Court affirmed the decision of the trial court and the case is now before us again on a certificate of importance.

In his brief, plaintiff recognizes the rule, established by this court in 1898, that a school district is immune from tort liability, and frankly asks this court either to abolish the rule in toto, or to find it inapplicable to a school district such as Kaneland which was organized through the voluntary acts of petition and election by the voters of the district, as contrasted with a school district created nolens volens by the State.

With regard to plaintiff's alternative contention, we do not believe that a logical distinction can be drawn between a community unit school district organized by petition and election of the voters of the district pursuant to article 8 of the School Code (Ill.Rev.Stat.1957, chap. 122, pars. 8-9 to 8-13), and any other type of school district, insofar as the question of tort liability is concerned. All are 'quasimunicipal corporations' created for the purpose of performing certain duties necessary for the maintenance of a system of free schools. The reasons for allowing or denying immunity apply equally to all school districts without regard to the manner of their creation. We are unwilling to further complicate the law relating to governmental torts by now drawing highly technical districtions between the various types of Illinois school districts and making tort liability depend thereon.

Thus we are squarely faced with the highly important question-in the light of modern developments, should a school district be immune from liability for tortiously inflicted personal injury to a pupil thereof arising out of the operation of a school bus owned and operated by said district?

It appears that while adhering to the old immunity rule, this court has not reconsidered and re-evaluated the doctrine of immunity of school districts for over fifty years. During these years, however, this subject has received exhaustive consideration by legal writers and scholars in articles and taxts, almost unanimously condemning the immunity doctrine. See, Borchard, Governmental Liability in Tort, 34 Yale L.J. 1; Green, Freedom of Litigation, 38 Ill.L.Rev. 355; Harno, Tort Immunity of Municipal Corporation, 4 Ill.L.Q. 28; Prosser on Torts, chap. 21, sec. 108, p. 1063; Pugh, Historical Approach to the Doctrine of Sovereign Immunity, 13 La.L.Rev. 476; Repko, American Legal Commentary on the Doctrines of Municipal Tort Liability, 9 Law and Contemporary Problems 214; Rosenfield, Governmental Immunity from Liability for Tort in School Accidents, 5 Legal Notes on Local Government 380; Approaches to Governmental Liability in Tort, 9 Law and Contemporary Problems 182; Note: Limitations on the Doctrine of Governmental Immunity from Suit, 41 Col.L.Rev. 1236; Note: The Sovereign Immunity of the States, The Doctrine and Some of Its Recent Developments, 40 Minn.L.Rev. 234; Tort Claims Against the State of Illinois and Its Subdivisions, 47 N.W.L.Rev. 914.

Historically we find that the doctrine of the sovereign immunity of the state, the theory that 'the King can do no wrong,' was first extended to a subdivision of the state in 1788 in Russell v. Men of Devon, 2 Term Rep. 671, 100 Eng.Rep. 359. As pointed out by Dean Prosser (Prosser on Torts, p. 1066), the idea of the municipal corporate entity was still in a nebulous state at that time. The action was brought against the entire population of the county and the decision that the county was immune was based chiefly on the fact that there were no corporate funds in Devonshire out of which satisfaction could be obtained, plus a fear of multiplicity of suits and resulting inconvenience to the public.

It should be noted that the Russell case was later overruled by the English courts, and that in 1890 it was definitely established that in England a school board or school district is subject to suit in tort for personal injuries on the same basis as a private individual or corporation. (Crisp v. Thomas, 63 L.T.N.S. 756 (1890).) Nonimmunity has continued to be the law of England to the present day. See; Annotation, 160 A.L.R. 7, 84.

The immunity doctrine of Russell v. Men of Devon was adopted in Illinois with reference to towns and counties in 1870 in Town of Waltham v. Kemper, 55 Ill. 346. Then, in 1898, eight years after the English courts had refused to apply the Russell doctrine to schools, the Illinois court extended the immunity rule to school districts in the leading case of Kinnare v. City of Chicago, 171 Ill. 332, 49 N.E. 536, where it was held that the Chicago Board of Education was immune from liability for the death of a laborer resulting from a fall from the roof of a school building, allegedly due to the negligence of the Board in failing to provide scaffolding and safeguards. That opinion reasoned that since the State is not subject to suit nor liable for the torts or negligence of its agents, likewise a school district, as a governmental agency of the State, is also 'exempted from the obligation to respond in damages, as master, for negligent acts of its servants to the same extent as is the State itself.' Later decisions following the Kinnare doctrine have sought to advance additional explanations such as the protection of public funds and public property, and to prevent the diversion of tax moneys to the payment of damage claims. Leviton v. Board of Education, 374 Ill. 594, 30 N.E.2d 497; Thomas v. Broadlands Community Consolidated School Dist., 348 Ill.App. 567, 109 N.E.2d 636.

Surveying the whole picture of governmental tort law as it stands in Illinois today, the following broad outlines may be observed. The General Assembly has frequently indicated its dissatisfaction with the doctrine of sovereign immunity upon which the Kinnare case was based. Governmental units, including school districts, are now subject to liability under the Workmen's Compensation and Occupational Disease Acts. Ill.Rev.Stat.1957, chap. 48, pars. 138.1, 172.36; McLaughlin v. Industrial Board, 281 Ill. 100, 117 N.E. 819; Board of Education, etc. v. Industrial Com., 301 Ill. 611, 134 N.E. 70. The State itself is liable, under the 1945 Court of Claims Act, for damages in tort up to $7,500 for the negligence of its officers, agents or employees. (Ill.Rev.Stat.1957, chap. 37, pars. 439.1-439.24.) Cities and villages have been made directly liable for injuries caused by the negligent operation of fire department vehicles, and for actionable wrong in the removal or destruction of unsafe or unsanitary buildings. (Ill.Rev.Stat.1957, chap. 24, pars. 1-13, 1-16.) Cities and villages, and the Chicago Park District, have also been made responsible, by way of indemnification, for the nonwillful misconduct of policemen. (Ill.Rev.Stat.1957, chap. 24, par. 1-15.1; chap. 105, par. 333.23k.) In addition to the tort liability thus legislatively imposed upon governmental units, the courts have classified local units of governments as 'quasi-municipal corporations' and 'municipal corporations.' And the activities of the latter class have been categorized as 'governmental' and 'proprietary,' with full liability in tort imposed if the function is classified as 'proprietary.' The...