Possekel v. O'Donnell

• Decision Date: 28 July 1977
• Docket Number: No. 76-1184,76-1184
• Citation: 51 Ill.App.3d 313,366 N.E.2d 589,9 Ill.Dec. 332
• Parties: , 9 Ill.Dec. 332 Monica POSSEKEL, a minor, by R. Amelia Possekel, her mother and next friend, Plaintiff-Appellant, v. Louise P. O'DONNELL, d/b/a Lad & Lassie Nursery and Kindergarten, and First National Bank & Trust Company of Evanston, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 589

366 N.E.2d 589

51 Ill.App.3d 313, 9 Ill.Dec. 332

Monica POSSEKEL, a minor, by R. Amelia Possekel, her mother and next friend, Plaintiff-Appellant, v. Louise P. O'DONNELL, d/b/a Lad & Lassie Nursery and Kindergarten, and First National Bank & Trust Company of Evanston, Defendants-Appellees.

No. 76-1184.

Appellate Court of Illinois, First District, Fourth Division.

July 28, 1977.

William M. Doty, Jr., Chicago, for plaintiff-appellant.

Barbara H. Fredericks, Pretzel, Stouffer, Nolan & Rooney, Chartered, Chicago (Joseph B. Lederleitner, Chicago, of counsel), for defendant-appellee, Louise P. O'Donnell, d/b/a Lad & Lassie Nursery and Kindergarten.

ROMITI, Justice.

The trial court in this case granted a summary judgment for the defendant O'Donnell, ¹ holding that the defendant's "nursery and kindergarten" was a school within section 24-24 of the School Code (Ill.Rev.Stat.1975, ch. 122, par. 24-24), and that, therefore, following Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 347 N.E.2d 705 and Merrill v. Catholic Bishop (1972), 8 Ill.App.3d 910, 290 N.E.2d 259, and Cotton v. Catholic Bishop (1976), 39 Ill.App.3d 1062, 351 N.E.2d 247), the defendant could not be held liable for its negligence which resulted in injury to the minor plaintiff. The plaintiff has appealed contending basically that such day care center or nursery school is not a "school" as the term is commonly understood and that in any event it is not governed by section 24-24 of the School Code. While we are unable to unqualifiedly agree with the plaintiff's first contention, we do agree with the second and reverse.

The minor plaintiff filed suit against the defendant, alleging that while attending the defendant's nursery as a paid pupil she was injured because of certain negligent acts of the defendant. The defendant at first denied that she had been negligent but subsequently moved for summary judgment on the grounds that the complaint sounded in negligence and under the authority of Kobylanski v. Chicago Board of Education the defendant could only be held liable for injuries resulting from wilful and wanton misconduct. The motion was granted. The plaintiff moved for reconsideration on the grounds that Kobylanski was not applicable since the "school" was in fact a day care center not operated by any agency of the state and thus section 24-24 of the School Code was inapplicable. The motion was denied. No affidavits were filed by either party, but the defendant had admitted in interrogatories that the establishment was licensed as a day care center. Under section 4 of the Child Care Act of 1969 (Ill.Rev.Stat.1975, ch. 23, par. 2214), if the Department of Children and Family Services is satisfied that the facility and responsible persons reasonably meet the standards set for the type of facility, the department shall issue a license designating the type of child care facility. Among the types of facilities are nursery schools (§ 2.12), kindergarten (§ 2.13) and day care center (§ 2.09). Despite the name of the establishment in this case (Lad & Lassie Nursery and Kindergarten), it was licensed neither as a nursery school nor a kindergarten. ²

I.

Depending on facts as hereinafter developed, the defendant's establishment may or may not constitute a "school" as that term is commonly understood. The term "school" is a generic one which has numerous meanings. (Crist v. Bishop (Utah 1974), 520 P.2d 196.) Thus is has been defined as an institution for instruction or education (State v. Laurel Crest Academy (1963), 2 Conn.Cir. 294, 198 A.2d 229; State ex rel. Fronton Exhibition Co. v. Stein (1940), 144 Fla. 387, 198 So. 82; Lawrence v. Cain (1969), 144 Ind.App. 210, 245 N.E.2d 663; also, Bastendorf v. Arndt (1939), 290 Mich. 423, 287 N.W. 579 (means little more than institution with educational purposes or activities); as an institution for teaching children or an establishment for imparting education) Village of East Hampton v. Mulford (Sup.1946), 188 Misc. 1037, 65 N.Y.S.2d 455); as an institution for education and training (Crist v. Bishop (Utah 1974), 520 P.2d 196); as a place where instruction is imparted to the young (Livingston v. Davis (1951), 243 Iowa 21, 50 N.W.2d 592; People v. Levisen (1950), 404 Ill. 574, 90 N.E.2d 213 (and number of persons being taught does not determine whether a place is a school); Board of Education v. Ferguson (1941), 68 Ohio App. 514, 39 N.E.2d 196; Lawrence v. Cain (1969), 144 Ind.App. 210, 245 N.E.2d 663; Withers v. Pulaski County Board of Education (Ky.1967), 415 S.W.2d 604); as a place of instruction in any branch or branches of knowledge (Livingston v. Davis (1951), 243 Iowa 21, 50 N.W.2d 592; Langbein v. Board of Zoning Appeals (1949), 135 Conn. 575, 67 A.2d 5; Alexander v. Phillips (1927), 31 Ariz. 503, 254 P. 1056); as a place for systematic instruction in any branch or branches of knowledge (City of Chicopee v. Jakubowski (1964), 348 Mass. 230, 202 N.E.2d 913); as a place in which persons are instructed in the arts or trained for their stations in life (Dewey v. Montesorri Educational Center, Inc. (1970), 185 Neb. 791, 178 N.W.2d 792); as a place in which persons are instructed in art or any species of learning (People v. Collins (Co.Ct.1948), 191 Misc 553, 83 N.Y.S.2d 124); as a place where instruction is imparted to the young, or any place or means of discipline, improvement, instructions, or training (Flagg v. Murdock (1939), 172 Misc. 1048, 15 N.Y.S.2d 635); as an institution consisting of a teacher and pupils, irrespective of age, gathered together for instruction in any branch of learning, the arts or the sciences (City of Chicago v. Bethlehem Healing Temple Church (1968), 93 Ill.App.2d 303, 236 N.E.2d 357; Weisse v. Board of Education (Sup.1941), 178 Misc. 118, 32 N.Y.S.2d 258; State ex rel. Shoreline School Dist. No. 412 v. Superior Court (1950), 55 Wash.2d 177, 346 P.2d 999; Benvenue Parent-Teacher Ass'n. v. Nash County Board of Education (1969), 4 N.C.App. 617, 167 S.E.2d 538); as an institution of learning below a college or university, a place of primary instruction (State ex rel. Dick v. Kalaher (1911), 145 Wis. 243, 129 N.W. 1060 (term generally referring to common or public school); Lawrence v. Cain (1969), 144 Ind.App. 210, 245 N.E.2d 663); as a place where systematic instruction in useful branches is given by methods common to schools and institutions of learning, which would make the place a school in the common acceptation of the word (Coyne Electrical School v. Paschen (1957), 12 Ill.2d 387, 146 N.E.2d 73 (tax exemption of schools); People ex rel. McCullough v. Deutsche Evangelisch Lutherische Jehovah Gemeinde Ungeanderter Augsburgische Confession (1911), 249 Ill. 132, 94 N.E. 162; In re Goetz' Estate (Probate Ct.1966), 8 Ohio Misc. 143, 218 N.E.2d 483 (tax exemption of "schools"); and as an institution of learning wherein a course of general education and mental training is offered for children similar to that offered in public schools. State ex rel. Church of the Nazarene v. Fogo (1947), 82 Ohio App. 238, 79 N.E.2d 914, affd. 150 Ohio St. 45, 79 N.E.2d 546.

Ignoring the last definition which was obviously dictated by the fact the case involved a vehicle tax exemption for school buses, we can see that the common denominator in all these definitions is that the place be one where instruction is given, generally to the young. Indeed, precisely this definition was accepted by the court in People v. Levisen (1950), 404 Ill. 574, 90 N.E.2d 213 where the court held that private schooling in the home could institute a "private school" within the compulsory school attendance law (Ill.Rev.Stat.1947, ch. 122, par. 26-1). An appellate court in Illinois (City of Chicago v. Bethlehem Healing Temple Church (1968), 93 Ill.App.2d 303, 236 N.E.2d 357), adopting a similar definition, has held an institution giving classes in religious instruction twice a week to be a "school" within the scope of an ordinance requiring the installation of an approved sprinkler system.

The plaintiff cites Rivkind v. State ex rel. Gibson (1947), 159 Fla. 553, 32 So.2d 330, which without discussion held that a kindergarten nursery was not a school within an ordinance prohibiting the issuance of a liquor license for a place of business within one thousand feet of a school. We have been unable to find any other case where a nursery school kindergarten was held not to be a "school" where that term was not limited in any way. ³ To the contrary, the court in Duncan v. Entrekin (1955), 211 Ga. 311, 85 S.E.2d 771 held that the use of a home for kindergarten purposes was permissible under a zoning ordinance permitting "schools" in a residential district, since a kindergarten is a school for children of very tender years. Likewise, the court in People v. Collins (1948), 191 Misc. 553, 83 N.Y.S.2d 124 held that a woman who took into her home each weekday morning up to fourteen children of preschool age and kept them until noon did not violate the zoning ordinance which permitted schools in residential areas. A Montesorri school was held to constitute a "private elementary school" in Dewey v. Montesorri Educational Center, Inc. (1970), 185 Neb. 791, 178 N.W.2d 792), also a zoning case. And a privately-owned and operated nursery school for children aged two to five was held to come within a zoning ordinance permitting "private elementary schools, taking children up to and not exceeding the age of 14." Livingston v. Davis (1951), 243 Iowa 21, 50 N.W.2d 592.

This does not mean that as a matter of law defendant's establishment is a school. The establishment is not licensed either as a nursery school or as a kindergarten. Instead, it is licensed under section 4 of the Child Care Act as a day care center. A day care center, as defined by section 2.09 of that act (Ill.Rev.Stat.1975, ch. 23, par. 2212.09), can be with or without stated educational purposes. In its motion for summary judgment, the...