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Mancha v. Field Museum of Natural Hist.

MAY 2, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM W. BRUSSELL, Judge, presiding. MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the trial court holding that plaintiff's third amended complaint did not state a cause of action against any of the defendants, and dismissing the suit.

On March 16, 1966, plaintiff was a student in the seventh grade of the Medgar Evers School in School District No. 169. On that day he, together with a group of fellow students and the two defendant teachers, Murray Feltus and Elaine Chisholm, organized a trip to the Field Museum of Natural History. About 50 students, ranging in age from 12 to 15 years, were in the group. Plaintiff was 12 years old at the time. When they arrived at the Museum they were allowed to divide into smaller groups and to view the exhibits without supervision. Plaintiff, who was of Mexican descent, of his own volition joined a group composed of students of African descent. He alleges that he was accosted by several Caucasian youths not connected with the school, was beaten by them as a "nigger lover," and suffered serious injuries as a result of the attack.

Plaintiff charges that the School District was negligent in permitting the students to leave the school premises without adequate supervision; that the teachers, Feltus and Chisholm, were in charge and were negligent in failing to supervise activities of the plaintiff while on the premises of the Museum. He charges that the Museum created a condition of danger to the plaintiff by inviting and permitting large numbers of children of various ages, racial origin and ethnic background to visit the Museum without adequate supervision by its own personnel. The plaintiff further charges that the Museum was negligent in failing to supervise the premises and prevent the attack on plaintiff; that the incident was observed by an employee of the Museum; and that it was the duty of the Museum to protect plaintiff from damage and injury by apprehending the assailants.

The School District and the teachers admit that they were required to exercise reasonable care on such a trip, but deny that the duty extended to the risk of foreseeing and guarding against an assault on a student by an outsider. Plaintiff contends that he and his fellow students were children of tender years for whom a higher standard of care was imposed. We proceed to consider the plaintiff's case against the School District and the teachers.

Plaintiff relies on Kahn v. James Burton Co., 5 Ill.2d 614. In that case plaintiff alleged that defendants had actual or constructive knowledge of the fact that children were attracted to a dangerous condition which defendants took no steps to correct. The court held that where the owner or person in possession of land knows — or should know — that young children frequent the vicinity of a dangerous agency or defective structure existing on the land which is likely to cause injury to children because they are incapable of appreciating the risk involved, and where the expense or inconvenience is slight compared with the risk to the children, there is a duty upon the owner or person in possession or control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from the condition.

In Lance v. Senior, 36 Ill.2d 516, the Kahn case was considered, and the court there stated that Kahn dealt with the so-called "attractive nuisance" doctrine and recognized a trend in the law which sets forth precautions which an occupier of land is required to take to prevent injury to a visitor upon the circumstances and purposes of the visit and the burden of guarding against the injuries.

In the instant case we are not dealing with a dangerous agency or unsafe condition on land such as existed in Kahn, nor is there involved a defective or dangerous agency which foreseeably would attract children. The defendant Museum is a place of cultural enlightenment and learning, not a place with hidden dangers for the unwary. In Kahn, the court stated at page 622: "All men * * * must be held, in the absence of actual knowledge or notice, to have reasonably anticipated such occurrences as in the ordinary nature of things reasonable men should know will probably occur." It cannot be said that an assault on a 12-year-old boy in the Field Museum is an occurrence which a reasonable man would anticipate.

The rule set forth in Lance v. Senior, supra, applies to the case before us. There the court said at page 518:

"In many negligence cases no more than foreseeability is involved. And because so many actions grounded upon negligence involve familiar patterns of conduct, it is easy to forget that implicit in an allegation of negligence is the assertion of a failure to comply with the standard of care that the law requires — the assertion of a duty and its breach."

Thus, in the case before us implicit in plaintiff's allegations is the assertion that the law imposed a duty upon the School District and teachers to guard against the risk that a 12-year-old boy would be assaulted while unsupervised at the Field Museum.

The court in Lance v. Senior, supra, also noted at page 518:

"After the event, hindsight makes every occurrence foreseeable, but whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account."

In the instant case, the risk that a 12-year-old boy would be assaulted in a museum is minimal. The burden sought to be imposed on the defendant School District and teachers is a heavy one which would require constant surveillance of the children. A baseball game, a football game or a game of hopscotch played on school grounds might break up in a fight resulting in serious injury to one or more of the children. A teacher cannot be required to watch the students at all times while in school, on the grounds, or engaged in school-related activity. If the law imposed such burdens it would well discourage schools and teachers from affording opportunities to children to enjoy the many extracurricular activities. It has long been recognized that something other than classroom teaching is needed for a sound education. Learning is not confined to books.

The case of Gubbe v. Catholic Diocese of Rockford, 122 Ill. App.2d 71, involved facts similar to those in the case before us. There the plaintiff, a student at a private school, was assaulted by a fellow student on school grounds. Plaintiff alleged that the owner of the school, the school principal, and his teacher were under a duty to properly supervise the activities of the students, but improperly and inadequately supervised the recess areas of the school ...

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