Ozuk v. River Grove Bd. of Educ.

• Decision Date: 14 May 1996
• Docket Number: No. 1-95-2844,1-95-2844
• Citation: 666 N.E.2d 687,281 Ill.App.3d 239,217 Ill.Dec. 18
• Parties: , 217 Ill.Dec. 18, 111 Ed. Law Rep. 1290 Thomas OZUK, a Minor by his Mother and Next Friend, Plaintiff-Appellant, v. RIVER GROVE BOARD OF EDUCATION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 687

666 N.E.2d 687

281 Ill.App.3d 239, 217 Ill.Dec. 18,

111 Ed. Law Rep. 1290

Thomas OZUK, a Minor by his Mother and Next Friend Plaintiff-Appellant, v. RIVER GROVE BOARD OF EDUCATION, Defendant-Appellee.

No. 1-95-2844.

Appellate Court of Illinois First District, Second Division.

May 14, 1996.

Steven W. Jacobson, Jacobson & Sorkin, Ltd., Chicago, for Appellant.

Peter A. Tomoras, David A. Korn, Wildman, Harrold, Allen & Dixon, Chicago, for Appellee.

Justice DiVITO delivered the opinion of the court:

At issue in this appeal is whether the circuit court properly dismissed plaintiff Thomas Ozuk's premises liability action against defendant River Grove Board of Education. For the reasons that follow, we affirm in part and remand with directions.

In October 1994, plaintiff, who was 13 years of age and approximately 6 feet 1 inch tall at the time of his injury, filed a premises liability action which was dismissed. In January 1995, he filed an amended complaint in which he alleged that he slipped, fell, and sustained injuries while running laps in gym class. He claimed that he fell because volleyball nets were placed in the gymnasium so that the students had to run underneath them and because the floor was in a warped, uneven, and defective condition. Count I alleged that defendant was negligent in breaching its duty of ordinary care, and count II alternatively relied upon a theory of willful and wanton conduct.

Pursuant to section 2-615 of the Civil Practice Law (735 ILCS 5/2-615 (West 1992)), defendant moved to dismiss the amended complaint. The motion was granted. When plaintiff chose not to replead, the action was dismissed with prejudice, and plaintiff appealed.

Plaintiff first asserts that the circuit court erred in dismissing count I of his amended complaint. We note that although defendant brought the motion to dismiss count I pursuant to section 2-615, the motion asserted that plaintiff's claim was barred by the State Lawsuit Immunity Act (the Act) (745 ILCS 5/0.01 et seq. (West 1992)). That defense is an affirmative matter extraneous to the complaint and thus properly may be brought pursuant to section 2-619 of the Civil Practice Law (735 ILCS 5/2-619 (West 1992)). Because defendant relied upon extraneous information, we treat the motion to dismiss count I as if brought under section 2-619.

The purpose of a motion to dismiss under section 2-619 is to dispose of issues of law and easily proved issues of fact at the outset of a case. Zedella v. Gibson, 165 Ill.2d 181, 185, 209 Ill.Dec. 27, 650 N.E.2d 1000 (1995). In ruling on a section 2-619 motion to dismiss, a court may consider pleadings, depositions, and affidavits. Zedella, 165 Ill.2d at 185, 209 Ill.Dec. 27, 650 N.E.2d 1000. A reviewing court will determine de novo the propriety of the granting of a motion to dismiss. Toombs v. City of Champaign, 245 Ill.App.3d 580, 583, 185 Ill.Dec. 755, 615 N.E.2d 50 (1993), appeal denied, 152 Ill.2d 581, 190 Ill.Dec. 912, 622 N.E.2d 1229 (1993). The question on appeal is "whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law." Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116-17, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993).

Section 3-106 of the Act provides:

"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 for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury." (Emphasis added.) 745 ILCS 10/3-106 (West 1992).

Although defendant claims that the gymnasium was property within the meaning of section 3-106, plaintiff maintains that it was educational, not recreational, in nature and therefore did not fall within its ambit. 745 ILCS 10/3-106 (West 1992). If, as plaintiff asserts, the school gymnasium was not a recreational facility within the meaning of section 3-106, then section 3-102 of the Act would apply: a local public entity is liable to intended and permitted users of its property, who use the property in a reasonably foreseeable manner and are injured by an unsafe condition, where it has actual or constructive notice of the condition that is not reasonably safe and it breaches its duty of ordinary care to maintain the property in a reasonably safe condition. 745 ILCS 10/3-102 (West 1992). Thus, if the gymnasium was a recreational facility, plaintiff must prove willful and wanton conduct and count I of his complaint, alleging ordinary negligence, was properly dismissed. On the other hand, if the gymnasium was not a recreational facility, he must prove only ordinary negligence and the dismissal was error and must be reversed. See 745 ILCS 10/3-102, 3-106 (West 1992). The crux of the issue presented here, therefore, is whether the gymnasium is a recreational facility within the purview of section 3-106.

The purpose of section 3-106 is to encourage the development and maintenance of parks, playgrounds, and other recreational areas. Annen v. Village of McNabb, 192 Ill.App.3d 711, 713, 139 Ill.Dec. 669, 548 N.E.2d 1383 (1990). Although the question of whether a school gymnasium is a recreational facility within the ambit of section 3-106 is one of first impression, Illinois courts have applied section 3-106 to school property such as an outdoor basketball court (Oropeza v. Board of Education, 238 Ill.App.3d 399, 179 Ill.Dec. 650, 606 N.E.2d 482 (1992)), a commonly used sidewalk (Ramos v. Waukegan Community Unit School District No. 60, 188 Ill.App.3d 1031, 136 Ill.Dec. 527, 544 N.E.2d 1302 (1989)), and a sidewalk that was adjacent to a grass playground and upon which children played at recess (Bubb v. Springfield School District 186, 167 Ill.2d 372, 384, 212 Ill.Dec. 542, 657 N.E.2d 887 (1995)).

In Bubb, the supreme court rejected a "dual-purpose property" test that had been used by the fourth appellate district to determine whether section 3-106 immunity applied. Bubb, 167 Ill.2d at 376-77, 212 Ill.Dec. 542, 657 N.E.2d 887. The court held that the type of activity performed on the property is not significant; rather, immunity depends on the character of the property in question, i.e., whether the property was intended or permitted to be used for recreational purposes. Bubb, 167 Ill.2d at 379, 212 Ill.Dec. 542, 657 N.E.2d 887. "In determining the nature of public property, courts have therefore considered whether the property has been used for recreation in the past or whether recreation has been encouraged there." Bubb, 167 Ill.2d at 382, 212 Ill.Dec. 542, 657 N.E.2d 887. In Bubb, recreational intent was suggested by the painting of lines on the concrete to allow school children to play the game "four-square" and by the principal's admission that school children were intended and permitted to play on the sidewalk. Bubb, 167 Ill.2d at 382-83, 212 Ill.Dec. 542, 657 N.E.2d 887.

Recreation is defined as "refreshment of the strength and spirits after toil: DIVERSION, PLAY." Webster's Third New International Dictionary 1899 (1986). Play "suggests an opposition to work; it implies activity, often strenuous, but emphasizes the absence of any aim other than amusement, diversion, or enjoyment." (Emphasis omitted.) Webster's Third New International Dictionary 1737 (1986). In contrast, physical education is defined as "education in methods designed to promote the development and care of the body and [usually] involving instruction in hygiene and systematic exercises and in various sports and games." Webster's Third New International Dictionary 1706 (1986). Thus, compulsory physical education and recreation have different aims: whereas the former seeks to instruct, the latter aspires merely to amuse. Accordingly, although some students may enjoy gym class, it cannot be said to be recreation.

Because public property may have more than one intended use (Bubb, 167 Ill.2d at 383, 212 Ill.Dec. 542, 657 N.E.2d 887), however, the fact that the gymnasium was used for physical education is not dispositive of whether section 3-106 immunity applies. If the school gymnasium was encouraged, intended, or permitted to be used for recess, extracurricular events, or other recreational noncompulsory activities, then section 3-106 would apply, provided that the recreational use was more than incidental. See Bubb, 167 Ill.2d at 382, 212 Ill.Dec. 542, 657 N.E.2d 887. Because those facts were not developed in the circuit court, we would have to speculate to determine the issue. Accordingly, remand is appropriate for the limited purpose of developing facts related to the intended or permitted use of the gymnasium.

On remand, if the facts show that the gymnasium was used only for compulsory physical education, section 3-106 immunity would be inapplicable. If so, plaintiff must prove only ordinary negligence and count I was wrongly dismissed. On the other hand, if the facts show that the gymnasium was intended or permitted to be used for recreational purposes, section 3-106 would apply. If that is the case, plaintiff must prove wanton and willful conduct and count I was properly dismissed. For that reason, we address plaintiff's second contention, that the circuit court erred in dismissing, pursuant to section 2-615, count II of his amended complaint for failure to state a claim for willful and wanton conduct.

A circuit court should dismiss a complaint under section 2-615 only when it is apparent that no set of facts can be proved that will entitle a plaintiff to relief. Zeitz v. Village of Glenview, 227 Ill.App.3d 891, 894-95, 169 Ill.Dec. 897, 592 N.E.2d 384 (1992), appeal denied, 146 Ill.2d 654, 176 Ill.Dec. 825, 602 N.E.2d 479 (1992)....