Ward v. Community Unit School Dist. No. 220

• Decision Date: 23 April 1991
• Docket Number: No. 1-89-1501,No. 220,D,220,1-89-1501
• Citation: 213 Ill.App.3d 1008,572 N.E.2d 986,157 Ill.Dec. 522
• Parties: , 157 Ill.Dec. 522, 67 Ed. Law Rep. 1231 Sean WARD, Plaintiff-Appellant, v. COMMUNITY UNIT SCHOOL DISTRICT NO. 220, Arnett C. Lines School, Barrington Middle School, and Board of Education of Community Unit School Districtefendants-Appellees. First District, Second Division
• Court: United States Appellate Court of Illinois

Page 986

572 N.E.2d 986

213 Ill.App.3d 1008, 157 Ill.Dec. 522,

67 Ed. Law Rep. 1231

Sean WARD, Plaintiff-Appellant, v. COMMUNITY UNIT SCHOOL DISTRICT NO. 220, Arnett C. Lines

School, Barrington Middle School, and Board of

Education of Community Unit School

District No. 220, Defendants-Appellees.

No. 1-89-1501.

Appellate Court of Illinois,

First District, Second Division.

April 23, 1991.

Rehearing Denied May 30, 1991.

Michael W. Rathsack, Chicago, for plaintiff-appellant.

Michael L. Handley, Aries & Hoyt, Chicago, for defendants-appellees.

Justice COCCIA delivered the opinion of the court:

I.

Plaintiff-appellant Sean Ward appeals the dismissal of his two-count complaint against defendants-appellees Community Unit School District No. 220 (school district), Arnett C. Lines School (Lines School), Barrington Middle School (Barrington School), and Board of Education of Community Unit School District No. 220 (board of education). In September 1977, the school district and the board of education operated the two schools, which were located next to each other in Barrington. Behind the schools was a large playing-field area on which were marked in a permanent substance smaller game areas or fields. These fields were used for physical education classes, student intramural games, and student athletic events for students enrolled in either of the two schools. Two of these fields were used for football, soccer, and similar sports; they were situated in an end-to-end fashion.

The first count of the complaint asserted negligence in the design of the two end-to-end football fields, which were described as being "almost immediately adjacent" to each other. On September 26, 1977, a regular school day, the two fields were being used simultaneously for a boys' physical education class football game (by the Barrington School) and an intramural flag football game (by the Lines School). This construction design allegedly led to the occurrence here: a collision between an older, Barrington School student and plaintiff, who at the time was a 9-year old Lines elementary school student. The Barrington student was allegedly catching a football; he ran through the end zone of his playing field and into the adjacent field. Plaintiff was seated in the end zone of the adjacent, second, field observing the intramural flag football game being played on that field. As the two boys collided, the older student kicked plaintiff in the head, causing serious and permanent injury. Plaintiff incurred a depressed fracture of the left parieto-occipital area of the skull and developed permanent seizures and epilepsy, from which he continues to suffer.

Plaintiff's second count asserted wilful and wanton misconduct by defendants, based on the same facts as alleged in the first count plus allegations of the requisite knowledge by defendants of the design, condition, and use of the fields. The trial court, ruling that there was no duty of care owed to plaintiff by defendants, dismissed both counts of the complaint under Section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-615). For the reasons stated hereinafter, we affirm the dismissal of both counts of the complaint.

II.

In reviewing the dismissal of a complaint for failure to state a cause of action we are guided by well-settled standards. In Burdinie v. Village of Glendale Heights (1990), 139 Ill.2d 501, 152 Ill.Dec. 121, 565 N.E.2d 654, the supreme court, affirming the dismissal of a complaint alleging negligence for failure to state a cause of action, stated:

"A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. [Citations.] When the legal sufficiency of all or part of a complaint is challenged by a section 2-615 motion to strike or dismiss, all well-pleaded facts in the attacked portions of the complaint are to be taken as true [citation], and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. A motion to strike a portion of a complaint does not admit conclusions of law or fact unsupported by the specific factual allegations upon which such conclusions rest. [Citation.] Therefore, we will consider only the facts of this case as plaintiff presented them in his complaint." Burdinie v. Village of Glendale Heights, 139 Ill.2d at 504-05, 152 Ill.Dec. at 124, 565 N.E.2d at 657.

To properly plead a cause of action in negligence, a plaintiff must allege the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Widlowski v. Durkee Foods (1990), 138 Ill.2d 369, 373, 150 Ill.Dec. 164, 165, 562 N.E.2d 967, 968; Dinges v. Gabardi (1990), 202 Ill.App.3d 732, 735, 147 Ill.Dec. 873, 875, 560 N.E.2d 21, 23; Ward v. K Mart Corp. (1990), 136 Ill.2d 132, 140, 143 Ill.Dec. 288, 291, 554 N.E.2d 223, 226.) The existence of a duty in a particular case is a question of law. Ward v. K Mart Corp., 132 Ill.2d at 140, 143 Ill.Dec. at 291, 554 N.E.2d [213 Ill.App.3d 1012] at 226; Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill.2d 507, 525, 111 Ill.Dec. 944, 513 N.E.2d 387.

The concept of duty in negligence cases has been characterized by our supreme court as being "very involved, complex and indeed nebulous." (Mieher v. Brown (1973), 54 Ill.2d 539, 545, 301 N.E.2d 307, 310; Ward v. K Mart Corp. (1990), 136 Ill.2d 132, 140, 143 Ill.Dec. 288, 291, 554 N.E.2d 223, 226.) A duty requires a person to conform to a certain standard of conduct for the protection of another against an unreasonable risk of harm. In order for there to be a duty the occurrence must have been foreseeable but more than mere possibility is required and foreseeability alone will not create a legal duty. (Lance v. Senior (1967), 36 Ill.2d 516, 518, 224 N.E.2d 231, 233.) Among the factors a court must consider in determining whether a duty exists are: the relationship between defendant and plaintiff, the likelihood of the injury, the magnitude of the burden of guarding against the injuries and the consequences of placing that burden on the defendant. (Ward v. K Mart Corp., 136 Ill.2d at 140-41, 143 Ill.Dec. at 297, 554 N.E.2d at 232.) The court must determine the question of duty from the facts and circumstances as set forth in the complaint. Burdinie v. Village of Glendale Heights (1990), 139 Ill.2d 501, 504, 152 Ill.Dec. 121, 124, 565 N.E.2d 654, 657.

In the instant case, even if we were to assume that a duty existed, plaintiff admits, as he must, that the school activities in question were supervised by teachers. Therefore, we need not address the question of duty in order to resolve the negligence count. Instead, we reach the same result as the trial judge by application of the immunity provision of the Illinois School Code (Ill.Rev.Stat.1989, ch. 122, pars. 24-24, 34-84a).

The School Code provides teachers and certified educational employees with immunity for liability arising from their negligent conduct. The immunity available to schools, school districts, and boards of education is vicarious, as the School Code does not grant immunity directly to such defendants, but specifies "teachers and other certified educational employees" are immune. Thus, if the cause of action is predicated on the negligence of an employee who has statutory immunity, the school, school district, and board of education are also immune. Gara v. Lomonaco (1990), 199 Ill.App.3d 633, 641, 145 Ill.Dec. 713, 717, 557 N.E.2d 483, 487; Jastram v. Lake Villa School District No. 41 (1989), 192 Ill.App.3d 599, 603, 139 Ill.Dec. 686, 690, 549 N.E.2d 9, 13.

Section 34-84a of the School Code, which is applicable to cities with a population greater than 500,000, and section 24-24 of the Code, which is applicable to cities with a population of less than 500,000, are identical. The two sections provide:

"Teachers and other certified 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." (Emphasis added.) (Ill.Rev.Stat.1989, ch. 122, pars. 24-24, 34-84a.)

The foregoing statutes confer immunity from liability for negligence arising out of "matters relating to the discipline in and conduct of the schools and school children." A plaintiff must plead wilful and wanton misconduct, not negligence, to maintain an action against a school or its teachers. (See Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 347 N.E.2d 705 (School Code immunity applied to bar liability for negligence for injury in physical education class; student injured in fall while performing supervised exercise on steel rings); see also O'Brien v. Township High School District 214 (1980), 83 Ill.2d 462, 47 Ill.Dec. 702, 415 N.E.2d 1015.) An exception has been recognized for the separate function of furnishing personal property such as football helmets and athletic equipment. Gerrity v. Beatty (1978), 71 Ill.2d 47, 15 Ill.Dec. 639, 373 N.E.2d 1323 (school's separate function of providing equipment requires exercise of ordinary care; no immunity for providing defective football helmet); see also Lynch v. Board of Education (1980), 82 Ill.2d 415, 434, 45 Ill.Dec. 96, 108, 412 N.E.2d 447, 459 (school district has affirmative duty of care to provide adequate equipment).

In this case plaintiff seeks to avoid the immunity provided by the School Code by asserting a claim of negligence through a theory of premises liability. We...