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Fustin v. Bd. of Ed. of Comm. Unit Dist. No. 2

NOVEMBER 20, 1968.

GREG FUSTIN, PLAINTIFF-APPELLANT,

v.

BOARD OF EDUCATION OF COMMUNITY UNIT DISTRICT NO. 2, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Williamson County, First Judicial Circuit; the Hon. JOHN H. CLAYTON, Judge, presiding. Judgment affirmed.

EBERSPACHER, P.J.

Plaintiff filed his complaint for damages alleging that the defendant Board of Education possessed, controlled, and managed a high school at Marion, and provided, managed, and controlled a basketball gymnasium for basketball games; that plaintiff was a member and player on the Benton Consolidated High School varsity basketball team and was participating in a basketball game between Marion and Benton, at Marion at the invitation of defendant, when a Marion player without provocation struck plaintiff in the face with his fist, causing plaintiff's injuries. The complaint further alleged that plaintiff was in the exercise of due care; that the game was controlled, managed, and supervised by defendant through its agents and charged the defendant with numerous acts or omissions of negligence in supervision of its offending player and the game, including failure to properly control and supervise such player with knowledge that such player did without provocation lose his temper and strike members of the opposing team, and that such person was a person likely to lose his temper and strike opposing participants, and failed to keep such player under control. The complaint also charged that defendant through its agents failed to maintain discipline of the players participating in an activity in violation of section 24-24 of the School Code (c 122, Ill Rev Stats 1965), the pertinent part of which is:

"Teachers and other certificated 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.

"Nothing in this Section affects the power of the board to establish rules with respect to discipline.

"The board may make and enforce reasonable rules of conduct and sportsmanship for athletic and extracurricular school events . . .:"

Defendant filed its motion to dismiss the complaint or in the alternative to strike the subparagraphs of the complaint which alleged the purported negligent acts and omissions of defendant. The motion was based on the 1965, Local Governmental Act (c 85, § 1-101 et seq., Ill Rev Stats 1965) and particularly section 3-108 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."

In addition to contending that the complaint was substantially insufficient as a matter of law to allege a cause of action against the Defendant District 2, the motion contended that defendant was not liable under the doctrine of respondeat superior for the conduct of the offending player, and could not be charged with knowledge that he would commit any alleged crime or acts done without provocation or advance notice. The motion also contended that under section 2-201 those persons responsible for the supervision of the game, alleged to be defendant's employees or agents, are not liable to plaintiff. That section provides:

"Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused."

And defendant contended that thus, defendant was not liable, as a matter of law by virtue of section 2-109 of the Act, which 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."

The alternative motion was likewise based on sections 3-108, 2-201, and 2-109 of the Act, and the fact that the offending player was not the servant of defendant, and that defendant was not chargeable, nor as a matter of law, bound by duty to assume that any person would commit unprovoked acts of violence.

At the hearing on the motion, plaintiff took leave to amend his complaint by insertion of the following paragraph:

"1a. That the defendant has contracted for liability insurance to the extent prayed for in the prayer ...


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