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Cleary v. Catholic Diocese of Peoria

FEBRUARY 26, 1973.

CATHERINE CLEARY, PLAINTIFF-APPELLANT,

v.

CATHOLIC DIOCESE OF PEORIA, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of McLean County; the Hon. LELAND SIMKINS, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 23, 1973.

The trial court dismissed this complaint for personal injuries. Plaintiff elected to stand on her pleadings and the court entered judgment for defendant. Plaintiff's appeal to the Supreme Court was transferred to this court.

• 1 The defendant maintains and operates a non-profit private high school. The first count of the complaint undertook to plead negligence by the defendant in permitting snow or ice to accumulate or remain on a certain football bleacher, and that plaintiff, as a patron of the school football program, fell suffering injuries. The second count undertook to plead such circumstances within the terms of products liability as stated in Suvada, 32 Ill.2d 612, 210 N.E.2d 182. Plaintiff has filed in this court following submission of the case, a motion which asks that the second count be dismissed with prejudice. The motion is granted.

The defendant filed a motion to dismiss the complaint upon the grounds that the purported allegations of negligence failed to state a cause of action, and that the complaint contained no allegation of notice as required by Ill. Rev. Stat. 1967, ch. 122, pars. 823, and 827.

The injury occurred on November 8, 1968, and the complaint was filed on March 26, 1970. An amended motion to dismiss urged that the complaint showed upon its face that the action was barred by the period of limitations provided in paragraph 822 of such statute.

Paragraph 821 through 831 of chapter 122 were enacted in 1959 as an apparent response to the decision in Molitor v. Kaneland Com. Unit Dist., 18 Ill.2d 11, 163 N.E.2d 89, which held school districts liable for negligence of its employees and abolished the rule of tort immunity for school districts theretofore existing.

The legislation undertook to state public policy with regard to public schools and non-profit private schools conducted by eleemosynary or religious institutions. Paragraphs 823 and 824 required the giving of written notice of claim of injury within six months of the injury and provided that failure to give such notice barred the action. Paragraph 822 required that the civil suit be brought within one year.

Plaintiff did not file any responsive amendment to Count 1 following the motion to dismiss. The motion was heard and the court overruled it as directed to the sufficiency of the allegations of negligence. The court reserved ruling upon the issues of the notice requirement and the period of limitations. Written briefs were submitted.

The written briefs in the trial court are included in the record and are directed entirely to the issue of the constitutionality of the several statutory provisions, in the light of the opinions in Lorton v. Brown County School Dist., 35 Ill.2d 362, 220 N.E.2d 161, and Haymes v. Catholic Bishop of Chicago, 41 Ill.2d 336, 243 N.E.2d 203. Such briefs do not refer to the sufficiency of the allegations of negligence, or any other issue.

The plaintiff, in electing to stand upon her pleadings, did not seek to amend the complaint to frame a specific constitutional issue. The written orders of the trial court did not include any findings or specifications of reason for dismissal, or the judgment entered upon the pleadings. Plaintiff's briefs in this court are directed solely to the provisions concerning the notice requirement and the statute of limitations, and urges that they are necessarily unconstitutional in the light of the cited cases and the companion authorities.

• 2 Defendant agrees that the constitutional issue was presented to the court, but urges that there is no ruling of record upon the constitutional questions. A comparable problem was considered in Van Meter v. Stout, 45 Ill.2d 7, 256 N.E.2d 784. The court there considered the trial court briefs as well as the record, and determined that in that case a constitutional issue was neither presented nor ruled upon below. Here, we find that the only other issue in the trial court was the sufficiency of the allegations to state a cause of action in negligence, and the trial court overruled the motion to dismiss upon such grounds. The remaining issue under the motion was the constitutional issue argued and considered by the court.

The constitutional provision concerned is Art. IV, par. 22 of the Constitution of 1870 and its language forbidding any grant of special privilege or immunity. The issue here was examined in Harvey v. Clyde Park Dist., 32 Ill.2d 60, 203 N.E.2d 573, wherein the Park District asserted statutory immunity. The court examined the several statutes concerning the tort liability of the many local governmental entities and discovered that while such engaged in the same, comparable and similar activities and functions, the statutes were inconsistent or contradictory in that some entities were declared to be immune from liability, the liability of some was limited in dollar amounts, while others were totally liable. The conclusion in Harvey was that the statutes did not provide any rational classification of the entities viewed in the light of function and common activity, and that under the statutory pattern the rights of some injured were enlarged as against the rights of others. It was determined that the statutory immunity of the Park District was unconstitutional as a grant of special immunity in violation of the constitutional provision.

In Lorton v. Brown County School Dist., 35 Ill.2d 362, 220 N.E.2d 161, the court limited its consideration of the constitutional issue as to the statutory requirement of notice of claim of injury provided in ch. 122, pars. 823 and 824, and for the reasons and upon the principles and authority of Harvey, determined that the statute was in violation of the constitutional requirements. The court noted that the pleadings did not raise any other ...


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