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Bell v. Bd. of Educ. of City of Chicago

OPINION FILED DECEMBER 26, 1978.

DARRYL BELL, PLAINTIFF-APPELLANT,

v.

THE BOARD OF EDUCATION OF THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 23, 1979.

This appeal arises from two orders entered by the circuit court of Cook County. The first of these orders, entered July 28, 1977, granted defendant Board of Education's motion for involuntary dismissal of the action commenced by plaintiff Darryl Bell. The second order, entered August 17, 1977, granted defendant William Booth's motion to dismiss plaintiff's action.

On February 2, 1976, plaintiff Darryl Bell commenced a two-count tort action against defendants Board of Education of the City of Chicago (hereinafter referred to as the Board) and William Booth, a teacher employed by the Board. Count I of plaintiff's complaint charged defendants with the negligent striking of plaintiff with a stick. The striking allegedly caused serious and permanent external and internal injuries. Pursuant to these count I claims plaintiff prayed for $750,000 in damages.

Count II of the complaint charged defendants with wilful and wanton conduct. Pursuant to count II claims plaintiff prayed for $100,000 in damages plus costs. A notice of claim for personal injuries, dated October 6, 1975, and sent to the Board, was appended to plaintiff's complaint.

On May 17, 1976, the Board responded with a motion to dismiss the complaint. The Board's motion contended (1) that the complaint was substantially insufficient and incapable of stating a cause of action, (2) that pursuant to the laws of the State of Illinois the Board could not be found liable for ordinary negligence, and (3) that the allegations of count II were replete with conclusory statements and devoid of fact.

On March 23, 1977, Booth filed a motion to strike and dismiss plaintiff's complaint. Booth's motion was similar to the aforementioned motion of the Board but added that Booth enjoyed immunity as defined by the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1975, ch. 85, par. 1-101 et seq.), in sections 2-201 and 3-108.

On May 4, 1977, plaintiff filed a first amended complaint at law as to count II only. On June 9, 1977, the Board filed a motion for summary judgment, involuntary dismissal or other relief. On July 7, 1977, plaintiff responded with a memorandum in opposition to the Board's motion.

The circuit court then, on July 28, 1977, dismissed plaintiff's action as to the Board. The dismissal order revealed that it was entered because plaintiff failed to demonstrate an ability to prove any injury proximately caused by the act upon which plaintiff's action was based. We are, however, uncertain as to the character of the relief granted by the trial court. It is unclear whether the order granted summary judgment or involuntary dismissal pursuant to Supreme Court Rule 219(c)(v) (Ill. Rev. Stat. 1975, ch. 110A, par. 219(c)(v)). The dismissal order specifically referred to an "involuntary dismissal" but did not refer to plaintiff's failure to comply with the rules of discovery. Furthermore, the Board's June 9, 1977, motion requested summary judgment, involuntary dismissal or other relief.

On August 17, 1977, Booth filed a motion to dismiss based upon the July 28, 1977, order. This motion was granted and an order was entered. On August 26, 1977, the circuit court ordered its prior orders final as of August 31, 1977. It is from the orders of July 28, 1977, and August 17, 1977, that plaintiff appeals.

It is clear that the trial court considered as significant plaintiff's answer to a supplemental interrogatory which reflected that plaintiff had not obtained the services of an expert witness (physician) to testify at trial. The specific interrogatory and answer thereto read as follows:

"29. What are the names, addresses, and occupational specialties of each person who will or may be called by plaintiff in the event of trial of this matter to testify as an expert to each or any of the following allegations of plaintiff.

a. That the minor plaintiff's Guillain-Barre Syndrome could or might have been a proximate result of the ...


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