APPEAL from the Circuit Court of Williamson County; the Hon.
A.R. CAGLE, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE EBERSPACHER delivered the opinion of the court:
Plaintiff-appellant, a minor, by her father and next friend, filed suit against defendant-appellee on October 24, 1969, as a result of injuries she received June 29, 1969, on a children's sliding board-jungle bars combination owned and possessed by defendant and located in a park operated by defendant. The first count of the complaint charged defendant with an utter indifference to or conscious disregard for plaintiff's safety, which directly and proximately caused injury to the plaintiff. The second count charged defendant with negligence proximately causing plaintiff's injuries. The omissions alleged in each count were the same and fell into two categories: paragraph 6 and sub-paragraphs a, b, and c of paragraph 7 of each count concerned a failure to supervise the use of the park; sub-paragraphs d, e and f of paragraph 7 concerned a failure to maintain the park in the proper condition.
Defendant filed a motion to dismiss the complaint on the ground that it did not state a cause of action. Defendant's motion included a motion to strike paragraph 6 and sub-paragraphs a, b and c of paragraph 7 of each count because they were based on an alleged duty of supervision which did not exist. Defendant also moved to strike sub-paragraphs b, c, d, e and f of paragraph 7 of each count because none of them charged defendant with wilful or wanton negligence in connection with the condition of the park. Finally, defendant moved that plaintiff be required specifically to allege that defendant's conduct was wilful and wanton if she intended to charge defendant with wilful and wanton negligence, and that plaintiff be required to allege the particular respects in which the defendant allegedly failed to use reasonable care to maintain the sliding board in a reasonably safe condition.
Defendant based his motions on Ill. Rev. Stat. (1969) ch. 85, par. 3-106, which reads:
"Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used as a park, playground or open area for recreational purposes unless such local entity or public employee is guilty of wilful and wanton negligence proximately causing such injury."
and par. 3-108(a) which reads:
"Except as otherwise provided by this Act and subject to subdivision (b) 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."
On hearing the motion, the court upheld defendant's contentions. Count II was dismissed; paragraphs 6 and sub-paragraphs a, b, c of paragraph 7 of Count I were stricken; and the plaintiff was required to amend paragraph 7 of Count I so as to charge wilful and wanton negligence.
Plaintiff then submitted an amended complaint that averred substantially the same facts as the original complaint. (The counts were presented in reverse order, however, and the amended order is the manner in which they will be referred to in this opinion.) Defendant filed substantially the same motion to dismiss, again relying on Chapter 85, sections 3-106 and 3-108, Illinois Revised Statutes (1969). The trial court dismissed the portion of plaintiff's complaint averring negligence and the failure to supervise, and ordered plaintiff to amend the allegations in Count II based on an alleged condition of the property so as specifically to charge defendant with wilful and wanton negligence.
Plaintiff elected to stand upon her complaint and the court struck the subparagraphs based upon an alleged condition of the property. All charging paragraphs having been stricken, the court found that neither count stated a cause of action and each was ordered dismissed. Plaintiff refused to seek leave to amend and the court entered judgment in favor of the defendant and against the plaintiff.
The plaintiff raises a number of contentions on this appeal. Initially, she argues here for the first time that Sections 3-106 and 3-108 are unconstitutional in that they violate both the equal protection and due process clauses of the fourteenth amendment to the U.S. Constitution and the special legislation prohibition of the former Illinois Constitution. However, the defendant points out that the plaintiff failed to raise any constitutional arguments before the trial court and therefore argues that she is now precluded from raising the issue before the Appellate Court.
The principle has been clearly stated by the court in Zehender & Factor, Inc. v. Murphy (1944), 386 Ill. 258, 53 N.E.2d 944, at 946:
"It has been many times held by this court that the question of the constitutionality of a statute cannot be properly raised for the first time in this court, but must have been called to the attention of the trial court and ruled upon by it, and the person challenging its validity must have preserved proper exceptions to such rulings. [Citations omitted.] Assignments of error must be based on the record itself and not merely upon arguments of counsel or upon the fact that the question might have been raised in the pleadings or during the trial."
Furthermore, in a similar case, (Meyers v. Board of Ed. (1970), 121 Ill. App.2d 186, 257 N.E.2d 183), the Court refused to consider arguments that Ill. Rev. Stat. Ch. 85, par. 2-107, precluding the liability of a local public entity for libelous or slanderous actions by its employees, was unconstitutional. In that case, the trial court had dismissed the plaintiff's complaint alleging a slanderous statement by an employee of the Board of Education, after a motion by the defendant citing the statute. After noting that the plaintiff was arguing the constitutionality, for the first time on appeal, the court cited numerous decisions holding that the question of the constitutionality of a statute cannot be raised for the first time in a court of review.
Finally, in Maloney v. Elmhurst Park Dist. (1970), 47 Ill.2d 367, 265 N.E.2d 654, the Court considered the constitutionality of the statutes in question in this case. However, in that case, after the plaintiff's complaint was dismissed, he subsequently filed a motion contesting the constitutionality, on which the trial court had ruled. In a recent criminal case, (People v. Amerman, 50 Ill.2d 196, 279 N.E.2d 353), our Supreme Court has held that ...