Woodman v. Litchfield Community School Dist. No. 12, Montgomery County

• Decision Date: 20 November 1968
• Docket Number: Gen. No. 67--69
• Parties: Pamela Fay WOODMAN, a Minor by Her Father and Next Friend, Thomas C. Woodman, Plaintiffs-Appellants, v. LITCHFIELD COMMUNITY SCHOOL DISTRICT NO. 12, MONTGOMERY COUNTY, Illinois, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 780

242 N.E.2d 780

102 Ill.App.2d 330

Pamela Fay WOODMAN, a Minor by Her Father and Next Friend, Thomas C. Woodman, Plaintiffs-Appellants, v. LITCHFIELD COMMUNITY SCHOOL DISTRICT NO. 12, MONTGOMERY

COUNTY, Illinois, Defendant-Appellee.

Gen. No. 67--69.

Appellate Court of Illinois, Fifth District.

Nov. 20, 1968.

Meyer & Meyer, Belleville, Delmer R. Mitchell, Jr., Belleville, for appellants.

Denby & Dobbs, Carlinville, Stuart Dobbs, Carlinville, of counsel, for appellee.

EBERSPACHER, Presiding Justice.

Plaintiff caused her complaint to be filed alleging that she was a child of eight years of age, and a second grade student in a school operated by defendant School District on March 1, 1966; that she was kicked in the head by a fellow student while she was performing the task of picking up papers off the floor of her classroom at the request of the teacher; that at the time of the injury the class was in session and the teacher permitted other students to move about the room in a disorderly fashion in the area where plaintiff was located; that plaintiff was severely and permanently injured when she was, while thus engaged, kicked in the head. The complaint alleges the teachers employment and charges the teacher as agent of defendant with numerous acts or omissions of carelessness and negligence in supervision of the pupils in the classroom, as proximate cause of the alleged injury.

The defendant School District filed a motion to strike the complaint and dismiss the action, based on the 1965, Local Governmental and Governmental Employees Tort Immunity Act (Ch. 85, Sec. 1--101 et seq. Ill. Rev'd.Stat.1965) and particularly on Sec. 3--108(a) of the Act, the pertinent part of which is:

'Except as otherwise provided by this Act * * * 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.'

The trial court granted the motion to strike and granted plaintiff 30 days to amend. Plaintiff elected to stand on the complaint, and the court dismissed the cause of action, from which order plaintiff has appealed.

We find no reported cases interpreting the Employees Tort Immunity Act, supra, although excellent commentaries have been published since its enactment ¹. Plaintiff contends that the sections of the Act under Article III deal exclusively with property conditions or use of public property and since the injury did not arise out of any alleged condition or use of school property, but only as a result of negligent conduct on that site to which the physical condition of the property or its use were insignificant, that Sec. 3--108(a) is not applicable. It is noted that legislative enactment ² does include the heading of Article III 'Immunity from Liability for Injury Occurring in the Use of Public Property', but consider this to be of such latitude that it does not indicate that Sec. 3--108(a) is not applicable to these alleged facts. That section specifically covers 'an activity' on public property. A strict construction, which is required, in view of the common law position of Illinois in matters regarding governmental immunity, and the Act being in derogation of that common law position, does not limit the application of 3--108(a) to those situations in which there are injuries arising from a defective condition or from the use of the public property. That section says a failure to supervise an activity on public property does not impose liability upon this defendant, unless another section of the Act specifically created a duty to supervise a particular type or category of activity. Activities which occur in a classroom are not within the category or categories of activities 'otherwise provided by this act'.

Plaintiff suggests in the alternative, that the immunity for failure to supervise activity on public property, should not be extended to cases where a public entity has undertaken to provide some supervision but the amount of supervision is inadequate or the supervision is negligently carried on. Prof. Baum ³ suggests this theory which is based on the insufficient light and failure of maintenance of traffic signal cases ⁴.

Section 2--109 of the Act provides:

'A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.'

At the time the Tort Immunity Act went into effect there was in effect, as a result of enactment also in the 1965 session of the General Assembly an Amendment to the School Code (Ch. 122, Ill.Rev'd.Stat.1965) which granted the right and imposed an obligation on teachers to maintain discipline in the schools and...