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Rinck v. Palos Hills Consol. High Sch. Dist.

OPINION FILED OCTOBER 9, 1979.

LINDA RINCK, PLAINTIFF-APPELLANT,

v.

PALOS HILLS CONSOLIDATED HIGH SCHOOL DISTRICT NO. 230 ET AL., DEFENDANTS-APPELLEES.



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

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 4, 1980.

Plaintiff, Linda Rinck, filed a two-count complaint against defendants, Palos Hills Consolidated High School District No. 230 and Stagg High School, alleging that plaintiff was injured as a result of defendants' alleged negligence in providing students with dangerous electrical equipment and outlets. The circuit court of Cook County dismissed both counts of the complaint and plaintiff appeals. The sole issue presented for appeal is whether the trial court erred in dismissing the complaint.

We affirm.

On April 4, 1977, plaintiff filed a complaint against defendant alleging that on April 5, 1976, plaintiff was a student at defendant Stagg High School, a school operated by defendant school district. While attendng a home economics class known as Foods III, another student, who was standing adjacent to plaintiff, inserted the plug of an electric frying pan into an electrical outlet. When the plug was inserted, a spark or fragment hit plaintiff and "caused electrical shock" to plaintiff's right hand and arm. Count I of the complaint alleged negligence by defendants in that defendants failed to maintain and inspect the electrical system and equipment on the school premises. Count II alleged a res ipsa loquitur theory of negligence, stating that but for some act or omission by defendants in the operation and maintenance of the electrical system and devices, plaintiff would not have been injured. Counts III and IV alleged negligence on the part of the teacher and school nurse, respectively, and count V alleged wilful and wanton negligence.

On May 1, 1977, defendants filed a motion to dismiss the complaint, alleging that under Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 347 N.E.2d 705, an action for negligence cannot be brought against a school district or its employees. Defendants alleged that there was no cause of action for wilful and wanton negligence.

On May 31, 1977, the trial court dismissed the complaint but granted plaintiff leave to file an amended complaint. Plaintiff filed an amended complaint alleging the facts as stated above. Count I of the amended complaint alleged negligence by defendants in providing students with dangerous and defective electrical outlets and equipment and in failing to maintain such equipment in a reasonably safe condition. Count II alleged a res ipsa loquitur theory of negligence.

Defendants filed a motion to dismiss the complaint alleging that plaintiff's complaint merely repleaded the same causes of action that were previously dismissed. On February 8, 1978, the motion to dismiss was denied.

On March 6, 1978, defendants filed a motion to vacate the order of February 8, 1978, and to dismiss the complaint. Defendants contended that the complaint failed to state a cause of action because plaintiff did not allege that defendants had knowledge of the purportedly defective condition, and that the res ipsa loquitur theory was not applicable. Pursuant to defendants' motion, the trial court dismissed counts I and II of the amended complaint and granted plaintiff 28 days in which to file a second amended complaint. Plaintiff filed a motion to vacate the order, and on March 29, 1978, the trial court entered an order dismissing count II with prejudice and striking count I with leave to amend within 28 days. A second amended complaint realleging count I was never filed. On April 28, 1978, plaintiff filed a notice of appeal from the order of March 29, 1978, "dismissing Count II of the plaintiff's complaint."

• 1, 2 Plaintiff contends on appeal that the trial court erred in dismissing counts I and II of the amended complaint. However, an initial question is raised as to whether this court has jurisdiction with respect to count I since plaintiff's notice of appeal refers only to that part of the court's order dismissing count II. It is well established that the notice of appeal is the only jurisdictional step in the appellate process (Ill. Rev. Stat. 1977, ch. 110A, par. 301), and the appellate court has jurisdiction only of those matters which are raised in the notice of appeal (Lewanski v. Lewanski (1978), 59 Ill. App.3d 805, 815, 375 N.E.2d 961; People v. Harvey (1972), 5 Ill. App.3d 499, 502, 285 N.E.2d 179, cert. denied (1973), 410 U.S. 983, 36 L.Ed.2d 179, 93 S.Ct. 1504.) Defendants argue that in the case at bar, since plaintiff limited the notice of appeal to dismissal of count II of the complaint, the scope of this court's review is also so limited. However, this court has recently held that the notice of appeal should be considered as a whole and where the notice fairly and adequately sets out the judgment appealed from so as to inform the successful party of the nature of the proceedings, the absence of strict technical compliance with the form of notice is not fatal. (Hamer v. Board of Education (1978), 66 Ill. App.3d 7, 8-9, 383 N.E.2d 231.) The notice of appeal in the case at bar specified that the judgment appealed from was the order of March 29, 1978, and the relief requested that this "this cause be remanded to the Circuit Court of Cook County, Law Division, for a hearing and trial on plaintiff's complaint." Since the order of March 28, 1978, dismissed both counts of the amended complaint, the notice of appeal was sufficient to advise defendants of the nature of the proceedings. The language referring to count II of the complaint was surplusage and is not fatal to this court's review of the dismissal of count I.

Section 24-24 of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 24-24), provides in pertinent part:

"In all matters relating to the discipline in and conduct of the schools and the school children, [teachers and other certificated educational employees] 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."

Section 34-84a of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 34-84a) is identical in language and purpose to section 24-24, except that the former applies to a school district having a population more than 500,000 while the latter applies to a smaller school district. (See Edmonson v. Chicago Board of Education (1978), 62 Ill. App.3d 211, 379 N.E.2d 27, appeal denied (1978), 71 Ill.2d 617.) The supreme court held in Kobylanski that section 24-24 was intended to confer in loco parentis status in nondisciplinary as well as disciplinary matters and that the plaintiff-student must therefore prove wilful and wanton misconduct in order to impose liability upon teachers and other certificated educational employees. Thus, in Kobylanski the court held that a student, who had been injured during a physical education class, could not maintain an action against the school district and the physical education teacher for alleged negligent supervision and failure to provide instruction.

In Gerrity v. Beatty (1978), 71 Ill.2d 47, 373 N.E.2d 1323, a student brought an action against a school district alleging, inter alia, that he was injured as a result of negligence by the school district in furnishing the student-plaintiff with an ill-fitting and inadequate football helmet. The supreme court held that the factual ...


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