APPEAL from the Circuit Court of Cook County; the Hon.
NICHOLAS J. BUA and the Hon. MEL R. JIGANTI, Judges, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 25, 1979.
The plaintiff appeals from two orders of the Circuit Court of Cook County dismissing her fourth amended complaint. On September 11, 1975, the plaintiff, Jacqueline Booker, a minor, filed her fourth amended complaint at law against the defendant Chicago Board of Education. The subject matter of the lawsuit is an incident that occurred at the James R. Doolittle Elementary School in Chicago, Illinois, on September 23, 1971, at which time the plaintiff was 10 years of age.
The plaintiff's fourth amended complaint alleged that she was a transfer student; that several of her classmates had threatened her with physical harm unless she made payments of money to them, and that her teacher was advised of these threats and the identity of the leader was made known to the teacher. On September 23, 1971, the teacher accompanied her class to the bathroom. The teacher remained in the hallway adjacent to the bathroom while the students, including the plaintiff, entered the bathroom. The teacher appointed as monitor the student the plaintiff had named as the leader of the classmates who had threatened her. While the plaintiff was inside the bathroom, she was physically assaulted by a group of her classmates.
Count I of the complaint alleged that the defendant, the Chicago Board of Education, operating by and through its agents, the teacher and the leader of the classmates, was liable for the injuries sustained by the plaintiff as a result of its wilful and wanton conduct.
Count II of the complaint alleged that the defendant was liable for the injuries sustained by the plaintiff as a result of its negligence.
Count III is identical to count I, and count IV is identical to count II, except for the additional paragraph 9 which stated, "That there was in full force and effect at the time of the occurrence a certain policy of insurance covering the defendant and occurrence alleged in this Count of the Complaint."
The defendant filed a motion to dismiss the plaintiff's complaint for failing to allege a cause of action. The defendant claimed that count I did not state a cause of action for wilful, wanton and reckless conduct pursuant to Clay v. Chicago Board of Education (1974), 22 Ill. App.3d 437, 318 N.E.2d 153. Concerning count II's allegations of negligence, the defendant asserted that pursuant to section 34-84a of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 34-84a), the defendant stands in the position of loco parentis and is not responsible for acts of ordinary negligence. In addition, the defendant stated that counts III and IV were redundant and mere repetitions of counts I and II.
On October 21, 1975, the circuit court dismissed counts I and III of the plaintiff's complaint. On May 28, 1976, the court dismissed counts II and IV on the basis of Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 347 N.E.2d 705.
The issues presented for review are (1) whether the complaint stated a cause of action based upon negligence, and (2) whether the complaint stated a cause of action based upon wilful and wanton conduct.
1 The Civil Practice Act provides that pleadings are to be liberally construed with a view to doing substantial justice between the parties. (Ill. Rev. Stat. 1975, ch. 110, par. 33.) A motion to dismiss a complaint for failure to state a cause of action admits, for the purpose of ruling thereon, all facts properly pleaded. Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill.2d 93, 187 N.E.2d 722; Englehardt v. Triple X Chemical Laboratories, Inc. (1977), 53 Ill. App.3d 926, 369 N.E.2d 67.
2 The plaintiff maintains that counts II and IV state a cause of action for negligence. However, sections 24-24 and 34-84a of the Illinois School Code provide in part:
"Teachers and other certificated educational employees shall maintain discipline in the schools, including school grounds which are owned or 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. * * *" (Ill. Rev. Stat. 1975, ch. 122, pars. 24-24, and 34-84a.)
This provision confers upon educators the status of parent or guardian to the students. (Kobylanski.) Because the doctrine of parental immunity precludes a child from suing his parents for injuries absent wilful and wanton misconduct (Mroczynski v. McGrath (1966), 34 Ill.2d 451, 216 N.E.2d 137; Nudd v. Matsoukas (1956), 7 Ill.2d 608, 131 N.E.2d 525), teachers and other certified educational employees are immune from suits for negligence arising out of matters relating to the discipline in and conduct of the schools and the school children. ...