APPEAL from the Circuit Court of Union County; the Hon. ROBERT
L. LANDSEN, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Plaintiffs Corliss and Gladys Keller filed a two-count complaint in the circuit court of Union County against defendant Board of Education. The Board moved to dismiss the complaint for failure to state a cause of action, which was granted by the trial court. Plaintiffs elected to stand on their pleadings and, accordingly, the action was dismissed with prejudice. Plaintiffs appeal.
As stated in the complaint, plaintiffs are the owners of a residence located on Cook Street in Jonesboro. The Board's grade school athletic field and baseball diamond is located directly across Cook Street opposite plaintiffs' premises. This action was brought for property damage to plaintiffs' garden plants and shrubs allegedly resulting from straying baseballs which crossed over Cook Street landing on the premises and from the acts of those seeking to retrieve such baseballs. Count I of the complaint is based on negligence and it alleges various omissions by the Board, each falling into one of two categories: the failure to maintain the baseball field in a proper condition so as to prevent baseballs from straying onto plaintiffs' property, and the failure to supervise students and "private persons" using the baseball field. Count II of the complaint is based on an alleged deprivation of civil rights under 42 U.S.C. § 1983 (1976) and it alleges similar negligent acts or omissions by the Board, which it charges, resulted in "unauthorized under the color of law invasions of baseballs originating from Jonesboro Grade School * * * [in violation of] a fundamental right secured to Plaintiffs by the 5th and 14th Amendments of the United States Constitution."
1 In dismissing count I, the lower court ruled that absent an allegation that the claimed negligence was wilful and wanton, the Board was immune from liability under sections 3-106 and 3-108 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, pars. 3-106, 3-108). As to count II, the court ruled that an action for monetary damages could not be brought against a school board under 42 U.S.C. § 1983 (1976).
The plaintiffs' brief on appeal is cryptic. Their first contention is as follows:
"Count I states a cause of action because chapter 85 I.R.S. immunizations of public entities, public employers and public employees from liability for ordinary negligence do not divest constitutionally secured persons of rights, the exercise of which rights in no way diminish or impede the general public's benefit from the public entity, employer or employee functions."
The crux of their argument appears to be as follows:
"The very recently reported case of Gerrity v. Beatty (1978) 71 Ill.2d 47, 52-53, 373 N.E.2d 1323, makes it clear that in regard to ministerial acts or omissions not functionally relevant to the intrinsic purposes of the School Code, the Illinois Supreme Court does not feel that imposing upon the District a duty of ordinary care is unduly burdensome or inconsistent with the intended purposes of the School Code."
The proposition thus asserted appears to be that under Gerrity a school board is no longer entitled to any immunity afforded by sections 3-106 and 3-108 of the Local Governmental and Governmental Employees Tort Immunity Act where the school board's acts are not "functionally relevant to the intrinsic purposes of the School Code [Ill. Rev. Stat. 1977, ch. 122, par. 1-1 et seq.]." Gerrity does not so hold.
In Gerrity, the plaintiff, a high school student, suffered severe injuries during a school football game due to a defective helmet furnished him by the defendant school district. The action was based upon ordinary negligence, rather than wilful and wanton conduct. At issue was whether section 34-84a of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 34-84a), conferring in loco parentis status upon teachers in direct, teacher-student relationships involving the exercise of the teacher's personal supervision and control over the conduct or physical movement of the student, barred liability of the school district for ordinary negligence. In holding against the school district, our supreme court held that the district's function of furnishing proper and safe equipment did not fall within the scope of the limited immunity provided by section 34-84a.
We find that Gerrity is inapplicable to the case before us. In Gerrity, immunity under sections 3-106 and 3-108 of the Tort Immunity Act was neither raised nor considered. Furthermore, in the instant case, unlike Gerrity, the negligence of the Board alleged to have caused harm involves either the existence of a condition of the ball park or a failure to supervise those playing baseball thereon, both of which fall within the scope of sections 3-106 and 3-108.
Section 3-106 of the Act at issue provides:
"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 willful and wanton ...