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O'brien v. Township High School Dist. 214

OPINION FILED OCTOBER 17, 1980.

JAMES O'BRIEN, A MINOR, APPELLEE,

v.

TOWNSHIP HIGH SCHOOL DISTRICT 214 ET AL., APPELLANTS.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Allen Hartmann, Judge, presiding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 26, 1980.

Plaintiff, a minor, brought this action by his father and next friend for personal injuries against Township High School District No. 214 (District), Ronald Freeman, Edward Cheatham and Hal Ross. The circuit court of Cook County granted defendants' motion to dismiss the complaint. The appellate court affirmed dismissal of that portion of the complaint which alleged wilful and wanton misconduct, but reversed the order dismissing that portion of the complaint which alleged negligence. (73 Ill. App.3d 618.) We granted defendants leave to appeal.

Defendants contend that they should not be held liable for ordinary negligence in this instance. Plaintiff counters that his complaint states a good cause of action in negligence, and that his complaint sufficiently alleges wilful and wanton misconduct.

The facts are taken from plaintiff's fourth amended complaint, inasmuch as they have been admitted by defendants' motion to dismiss. (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill.2d 93, 96.) The individual defendants were agents and servants of the District, although Ross was not a teacher or other certificated educational employee. (It was not explicitly stated in the complaint, but all parties agree that Freeman and Cheatham were teachers or other certificated educational employees.) Plaintiff, on September 1, 1972, was a student at the District's high school. He had septicemia in his left knee as a result of an injury received off of school property during an activity unrelated to school.

Count I of the complaint alleged that the District, through its agents, the individual defendants, had students' injuries cared for by a student who was not a District employee and who attempted to treat plaintiff's left leg; that defendants were negligent in having an incompetent and untrained student provide medical and surgical care to plaintiff instead of seeking competent medical assistance; that defendants committed other specified acts or omissions in the course of providing treatment to plaintiff; and that plaintiff suffered severe and permanent injuries as a result thereof. Count II of the complaint repeated the allegations of count I, but framed them in terms of wilful and wanton misconduct rather than ordinary negligence.

Defendants assert that the School Code provides teachers and other certificated employees with immunity from liability for ordinary negligence in the administration of medical treatment to students. Section 24-24 (Ill. Rev. Stat. 1971, ch. 122, par. 24-24), applicable to cities of less than 500,000 population, and section 34-84a (Ill. Rev. Stat. 1971, ch. 122, par. 34-84a), applicable to cities of more than 500,000 population, each provide, in pertinent part:

"Teachers and other certificated educational employees shall maintain discipline in the schools. 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."

Initially, we note that this case is before us at the complaint stage, without proof or defenses, and we are therefore not presented with any question as to the individual defendants' scope of authority as agents of the District.

The above-quoted Code provision is expressly applicable only to teachers and other certificated educational employees and is, therefore, inapplicable to defendant Ross. Defendants nevertheless assert that the complaint should be dismissed as to Ross because of the complaint's failure to specify his role in the event in question. This could easily have been objected to in the trial court and, because it was not, it is waived. Ill. Rev. Stat. 1971, ch. 110, par. 42(3).

The quoted statutory provision, although inapplicable to Ross, extends in loco parentis status to teachers and other certificated educational employees for "`matters relating to the discipline in and conduct of the schools and the school children.'" (Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 173.) This status confers immunity from liability for negligence arising out of such matters. To recover, the plaintiff must prove wilful and wanton misconduct. (63 Ill.2d 165, 173.) The parties rely on Kobylanski and two subsequent cases decided by this court under the School Code provision in question (Gerrity v. Beatty (1978), 71 Ill.2d 47, and Thomas v. Chicago Board of Education (1979), 77 Ill.2d 165), in support of their respective positions. In each of the three cases, the injury occurred during a school activity: a physical education class in Kobylanski and a school football game in both Gerrity and Thomas.

This factor distinguishes the situation here from the foregoing cases. These cases demonstrate that, although the in loco parentis status of teachers is not restricted to disciplinary matters, its application is limited to activities connected with the school program. The complaint herein alleges that defendants directed an incompetent and untrained student to provide medical and surgical treatment to plaintiff. We do not view such alleged actions to be within the category of activities connected with the school program. The injury which originally caused the condition in plaintiff's knee did not arise from any school-related activity. Furthermore, none of the defendants, according to the complaint, had the competence or training to administer medical treatment to plaintiff's leg. In this regard, such treatment is readily distinguishable from, for example, inspection of football equipment by a coach, which was held in Thomas to be subsumed within the coach's supervisory authority. (77 Ill.2d 165, 171.) Teachers are not privileged to do everything that a parent may do. Any decision as to the necessity of medical treatment, at least of the type alleged to have been administered here, was for the plaintiff's parents, rather than his teachers, to make in the first instance. In our opinion, the negligence alleged clearly went beyond and was totally outside the ambit of a teacher's supervisory function.

Moreover, public policy considerations that authorize and encourage teachers to have broad discretion and latitude in matters connected with school activities (Gerrity v. Beatty (1978), 71 Ill.2d 47, 52) do not apply once outside the realm of such activities. Indeed, public policy, as expressed in the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1971, ch. 85, par. 6-106), militates in favor of holding public employees liable for negligently prescribing or administering treatment which causes injury. Interests of student-teacher harmony (Thomas v. Chicago Board of Education (1979), 77 Ill.2d 165, 171) must be sublimated to the interest of compensating a student injured as a result of a teacher's negligence when the latter has ventured ...


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