APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
P. COMAN, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 12, 1978.
Plaintiff appeals from an order of the trial court dismissing with prejudice count I of his amended complaint. Plaintiff charged in count I that he sustained injuries as a result of the negligence of defendants Chicago Board of Education and his three high school football coaches. Relying upon sections 24-24 and 34-84a of the School Code (Ill. Rev. Stat. 1975, ch. 122, pars. 24-24 and 34-84a) and on Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 347 N.E.2d 705, all defendants moved to dismiss the count. The individual defendants also relied upon the immunity conferred by Local Government and Governmental Employees Tort Immunity Act. Ill. Rev. Stat. 1975, ch. 85, par. 1-101 et seq.
Count I of the amended complaint alleged that on October 4, 1974, plaintiff was a duly enrolled student and a member of the varsity football team at Lakeview High School. It recited that the Board sponsored and conducted an athletic program which included football competition and that the individual defendants were football coaches at Lakeview. As part of the program, which was voluntary and was conducted after regular school hours, defendants provided the team members with football equipment including helmets and face masks.
Plaintiff was injured on October 4, 1974, during a varsity football game with another high school. The game took place at Hanson Park Stadium, a facility which plaintiff alleged was owned and operated by the Board. Plaintiff charged that defendants failed to warn him that participation in varsity football games could and did result in serious injuries to members of the team trained and equipped in a manner similar to plaintiff. He also alleged that the coaches had not been educated and trained properly and that the training program and practice facilities provided to team members were inadequate. With respect to the equipment, the complaint recited that plaintiff's helmet, face mask, padding and clothing were "improperly designed, obsolete, worn, defective or dangerous" and that the equipment had not been inspected and tested properly prior to the injury. Plaintiff finally alleged that he was required to play on a synthetic turf which was constructed, installed and maintained improperly.
1 Sections 24-24 and 34-84a of the School Code are virtually identical in language and purpose. Section 24-24 provides:
"Teachers and other certified educational employees shall maintain discipline in the schools, including school grounds which are leased by the board and used for school purposes and activities. 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." (Ill. Rev. Stat. 1975, ch. 122, par. 24-24.)
This section confers in loco parentis status upon educational employees in matters relating to discipline and supervision of school activities. Kobylanski held that the intent of this section was to subject teachers and other certified educational employees to no greater liability to their students than parents who are liable to their children for wilful and wanton misconduct, but not for mere negligence.
As to those allegations of the complaint charging defendants with negligence in providing plaintiff with defective football equipment and clothing, the recent case of Gerrity v. Beatty (1977), 71 Ill.2d 47, bears directly on the sufficiency of these allegations. There, plaintiff suffered injuries while making a tackle in a junior varsity football game. Plaintiff appealed the dismissal of that count of his complaint which alleged ordinary negligence on the part of the defendant school district in furnishing him with an ill-fitting and inadequate football helmet.
In reversing the trial court's decision, our supreme court noted a distinction between allegations of negligence in the direct student-teacher relationship and allegations of negligence in furnishing defective or inadequate equipment. The policy considerations which prompted the decision in Kobylanski concerned the need for teachers and other certified educational employees to have disciplinary and supervisory authority over their students similar to that which exists between parent and child. The School Code reflects a legislative determination that the orderly conduct of schools would be jeopardized seriously if teachers and school districts were amenable to ordinary negligence actions for accidents occurring during the exercise of such authority. In contrast, the furnishing of equipment for athletic teams was considered by the court to be a separate and distinct function of the school district. In holding that the complaint stated a cause of action for negligence, the court stated:
"[P]ublic policy considerations argue rather strongly against any interpretation which would relax a school district's obligation to insure that equipment provided for students in connection with activities of this type is fit for the purpose. To hold school districts to the duty of ordinary care in such matters would not be unduly burdensome, nor does it appear to us to be inconsistent with the intended purposes of sections 24-24 and 34-84a of the School Code." 71 Ill.2d 47, 52-53.
2 In Gerrity plaintiff named only the school district as defendant. Consequently, the court necessarily was limited in its discussion of those parties to whom liability would attach. We believe, however, the Gerrity rationale supports the imposition of liability upon the individual defendants in the present case. As football coaches, defendants have a duty to inspect the equipment which is provided to members of the team. When the defect that gives rise to an injury is not discovered due to lack of inspection and testing, liability for ordinary negligence should be imposed upon those whose responsibility it was to inspect and test. Plaintiff's complaint thus stated a cause of action against the individual defendants for the negligent furnishing of defective or obsolete equipment.
3 Although the court in Gerrity did not discuss the applicability of the Tort Immunity Act, we do not believe a consideration of its provisions would have affected the outcome of the case. As in the School Code, the provisions of the Tort Immunity Act absolving local public entities and public employees from liability for negligence relate to their discretionary functions. We believe the distinction articulated by the court in Gerrity in the context of the School Code likewise is applicable to the Tort Immunity Act: the furnishing of equipment to athletic teams is a function separate and apart from the exercise of discretionary authority. Just as the School Code does not require that teachers and school districts be immunized from liability for negligence in this respect, neither does the Tort Immunity Act mandate that we absolve defendants, as a matter of law, from liability for the negligent furnishing of defective or obsolete equipment.
4, 5 In contrast, we believe the paragraph of plaintiff's complaint alleging that he was required to play on a synthetic turf field which was improperly constructed, installed and maintained does not state a cause of action under Gerrity. Although the substance of the allegation relates to the condition of the playing surface, and thus may fall under the Gerrity reasoning, the paragraph is prefaced with language which charges defendants with negligence in their supervisory capacities. Both the School Code and the Tort Immunity Act require allegations and proof of wilful and wanton misconduct before defendants can be held liable for injuries arising out of the exercise of their discretionary or supervisory authority. Moreover, even if the complaint were amended to charge negligence in the installation and maintenance of the playing surface, section 3-106 of the Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, sec. 3-106) specifically absolves defendants of liability for injuries arising out of a ...