Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. FRED J. KULLBERG, Judge, presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.
Plaintiff Richard S. Gubbe on March 7, 1968, was attending the Cathedral School in Rockford, Illinois, which was owned and operated by the Catholic Diocese of Rockford. Sister Alfonse was principal of the school and Sister Stella Ann was the home room teacher of the plaintiff. Monsignor Herman A. Meilinger was the pastor of the Cathedral School and Church. Plaintiff was allegedly beaten and greatly injured by Paul Johnston, another student, during recess on the playground of the school. Plaintiff filed a six-count complaint.
Count I alleged that the defendant Catholic Diocese of Rockford employed the priest and the two nuns in capacities heretofore mentioned, and that on the 7th day of March, Paul Johnston severely beat Richard Gubbe on the playground of the school; that the defendants were under a duty to exercise due care and caution for the safety of the plaintiff, to properly supervise the activities of the students, and more specifically alleged that the defendant Catholic Diocese of Rockford negligently maintained and controlled its premises and provided inadequate and improper supervision of the recess areas including the playground, failed to protect the plaintiff, although he had previously asked for protection against the defendant, Paul Johnston, a larger and stronger boy, and alleged other negligent acts not material hereto. It further stated that the plaintiff was assaulted by reason of the negligence of this defendant and as a direct and proximate cause, he suffered severe injuries.
Count II charged the same defendant with the same misconduct, except that it is alleged that the acts of the defendant were wilful and wanton. Count III charged the defendants, the priest and the two nuns, with the same acts of misconduct and characterizes them as negligent. Count IV charged the same defendants with the same acts of misconduct and characterizes them as wilful and wanton. Counts V and VI contained charges of assault against the defendant, Paul Johnston, but they are not material to the disposition of this case.
The defendant, Catholic Diocese of Rockford, filed a motion to dismiss the complaint for failure to state a cause of action and stated that the allegations of duty on the part of that defendant consist only of a conclusion of the pleader and are wholly insufficient in law and fact; that Counts I and II are wholly insufficient to set forth facts tending to prove that the plaintiff's injuries resulted proximately from a breach of duty of said defendant, and stated that the law does not require owners or occupiers of premises to maintain a constant lookout or surveillance of invitees thereon. The defendants, the priest and two nuns, likewise filed a motion to strike the complaint. The motion to strike Counts III and IV of the complaint alleged that no acts are alleged which can be classified as misconduct on their part, and stated there was assumed certain affirmative duties which do not legally constitute wilful and wanton misconduct. The trial court allowed both motions to strike and this appeal followed.
Plaintiff contends that (1) there is no statutory or legislative immunity for private or charitable school districts or their employees, and (2) judicial immunity of churches has been abolished in Illinois; that (3) the doctrine of giving school districts immunity from tort liability has been abolished by the judiciary and (4) the negligence of a private and charitable school and its employees should be a question of fact to be determined by the jury. More briefly stated the plaintiff contends that he brings this appeal to determine his right to bring suit for negligence against private parochial school authorities.
The defendants, the priest and two nuns, state that they have no quarrel with the cases cited to sustain the plaintiff's first three contentions, but do quarrel with the proposition that the negligence of private and charitable school districts and their employees should be a question of fact to be determined by the jury. The defendant Catholic Diocese of Rockford, in answering the contentions of the plaintiff, stated that an occupant or owner of premises owes to an invitee only a duty to use ordinary care to have the premises in a reasonably safe condition for use in a manner consistent with the purposes of the invitation; that such owner is not bound to anticipate the malicious or criminal acts of others by which injury is inflicted; that the proximate cause of such injury is the act of the assaulter and not of lack of supervision by school authorities; and that by statute, both private and local schools stand in loco parentis to pupils and are not liable for errors in judgment in matters of supervision and control; and that the complaint is insufficient in law and fact to state a cause of action for wilful and wanton misconduct. More simply stated defendant contends that the issue is a narrow one of whether a school official or corporation is liable for the torts of a third-party student.
Plaintiff and defendants cite Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89, and other cases to sustain their position. In Molitor, at p 20, the court stated:
"It is a basic concept underlying the whole law of torts today that liability follows negligence, and that individuals and corporations are responsible for the negligence of their agents and employees acting in the course of their employment. The doctrine of governmental immunity runs directly counter to that basic concept. What reasons, then, are so impelling as to allow a school district, as a quasi-municipal corporation, to commit wrongdoing without any responsibility to its victims, while any individual or private corporation would be called to task in court for such tortious conduct?"
The court concluded that there were no such impelling reasons.
Defendants cite Fustin v. Board of Education of Community Unit Dist. No. 2, 101 Ill. App.2d 113, 242 N.E.2d 308 to support their contentions. That case involved a complaint for injuries resulting from a high school basketball game when one player struck another with his fist. The court held that the complaint did not state a cause of action for negligence against the Board of Education and their employees, although they allegedly permitted the player to participate when they knew or had reason to know that he was apt to commit assault during an athletic contest, and stated that the defendants would be liable only where their discretionary powers are performed wantonly and maliciously by the employee. The court there gave Molitor a very narrow construction and said at p 120:
"In Molitor, liability was predicated on a simple factual situation negligence of the employee in driving a bus resulting in the injury of the student. The question of liability resulting from the discretionary exercise of judgment by professional school personnel relating to participation of a particular student was not involved."
However, the Illinois Supreme Court, in Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253, gave Molitor a broader construction. There a patient sued a charitable hospital for damages for alleged negligent treatment. His broken leg became gangrenous and had to be amputated. The court held that a verdict for the plaintiff was supportable because the hospital failed to maintain sufficient nurses, and on the ground that defendant failed to hold proper consultations where skilled nurses would have recognized the development of gangrene, and the hospital did not review the attending physicians' work. In that case the Supreme Court, after stating that the basic dispute centered on the duty that rested upon the defendant hospital, stated at p 336:
"The plaintiff, however, suggests that the doctrine of charitable immunity announced in Parks v. Northwestern University, 218 Ill. 381, and modified in Moore v. Moyle, 405 Ill. 555, did not survive the decision of this court in Molitor v. Kaneland Community Unit District, 18 ...