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Montag v. Board of Education





Appeal from the Circuit Court of Rock Island County; the Hon. Wilbur S. Johnson, Judge, presiding.


On February 17, 1976, Jeffrey Montag, a 16-year-old junior student at Moline High School, sustained spinal injuries during a gymnastics team practice session which resulted in paralysis. The team was coached by Brent Simmons, an employee of the Rock Island County Board of Education School District No. 40 (the Board). Montag brought suit in three counts against Simmons and the Board.

The first count, against both defendants, alleged they negligently failed to exercise proper supervision over Montag and negligently failed to ensure the proper use of the safety equipment in the gym. The second count, also against both defendants, alleged the defendants' conduct was wilful and wanton. The third count, only against the Board, alleged the Board negligently failed to supply the gym with adequate safety equipment.

The trial court granted defendants' motion to dismiss count one. The court reasoned that the language of section 24-24 of the School Code and the trend of supreme court decisions, following Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, interpreting the section, preclude any action for personal injury against a school district or employee thereof on a negligence theory. Section 24-24 provides in relevant part as follows:

"Teachers and other certified 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. 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." Ill. Rev. Stat. 1977, ch. 122, par. 24-24.

After a trial on counts two and three, the jury returned a verdict in favor of both defendants on both counts. Montag, then, submitted a post-trial motion for a judgment notwithstanding the verdict, or in the alternative a new trial, which was denied by the trial court.

On appeal, Montag presents three issues from his post-trial motion: (1) the trial court erred in disallowing the action for negligent supervision; (2) the jury's verdict, insofar as it did not find that the Board negligently failed to supply the gym with adequate safety equipment, was against the manifest weight of the evidence; (3) the trial court committed reversible error by permitting the defendants to introduce a movie depicting the gymnastics routine in question under conditions dissimilar to those in issue.

We affirm the rulings of the trial court and the verdict of the jury.

Before discussing the issues before this court, a brief review of the incident is in order. On the day of the injury, Montag was practicing for competition in the still rings event. The wooden rings were connected to a steel frame by nylon cords and were positioned seven to eight feet above the ground. Two one-inch thick rubber mats and one four-inch thick landing mat were underneath the rings while Montag was performing. Montag had started with the team approximately three months prior to the date of the injury. Nevertheless, he could not be considered an inexperienced beginner. Montag had prior experience with the rings as a gym class student of Simmons' and later, as a team member, exhibited skills which permitted Montag to compete in all but one interscholastic competition.

In competition, a gymnast performs a routine which is composed of a series of individual gymnastics moves. A routine commences when a performer grabs hold of the rings and is completed when the participant performs a dismount. Montag used a dismount called the back uprise dismount in his routine at the time of the injury. This dismount, in part, consists of an airborne backward somersault to a standing position on the ground. The dismount takes place within two seconds. It is considered to be a move of, at most, intermediate difficulty. Montag testified that he had mastered this dismount two weeks before the injury. While Montag was performing, Coach Simmons was nearby acting as a spotter. A spotter is someone who stands close by in order to assist the performer with physical support or with instructions should the performer encounter difficulty during the routine. Tragically, Montag's dismount went awry. Simmons was unable to reach Montag. And, Montag landed on his back, immediately suffering paralysis.

• 1 In support of his first issue, Montag proffers several subarguments. Montag suggests that Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill.2d 11, in abolishing the tort immunity of school districts, established a right to an action in negligence. Further, the trial court's denial of this right was predicated upon an erroneous interpretation of section 24-24 by the supreme court. In Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, the supreme court recognized a loco parentis relationship and concomitant defense for teachers and other certified educational employees, under section 24-24, for activities beyond simply disciplining students. Montag misunderstands Molitor and interprets the School Code section too narrowly. Molitor only laid to rest the remnants of an antiquated common-law construct of sovereign immunity. Molitor did not suggest that it is unconstitutional for the legislature to enact a statutory governmental immunity. The issue at hand is not the validity of statutory governmental immunity, but its scope.

In reading the statute, Montag relies upon the reasoning of the dissenting opinion in Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 175, and argues that section 24-24 does not apply to nondisciplinary circumstances, such as gymnastics team practice. According to this reasoning, Simmons' coaching would fall outside the scope of the section's immunity and Montag could thus proceed on a negligence theory. This is a clever argument. But, it is also an argument which has been rejected by the majority of the supreme court on several occasions. (Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165; O'brien v. Township High School District 214 (1980), 83 Ill.2d 462; Thomas v. Chicago Board of Education (1979), 77 Ill.2d 165.) We are compelled to follow the interpretation of the high court and rule that the language of the statute extends the loco parentis relationship to circumstances other than just disciplinary conduct.

• 2 In Kobylanski, the plaintiffs were injured during physical education class while using gymnastic equipment. The defendants raised the loco parentis relationship immunity of the School Code as a defense. The court reasoned that the statute indicates "this relationship applies to all activities in the school program. Since physical education is a required part of the academic curriculum (Ill. Rev. Stat. 1967, ch. 122, pars. 27-5 to 27-7), the classes in which [the plaintiffs] were injured are clearly `activities connected with the school program.'" (63 Ill.2d 165, 172.) An argument could be made that gymnastics team practice is an extracurricular event which is not required by the school program and thus not connected with the program. Thomas indicates that such a reading would be unduly narrow. (77 Ill.2d 165, 172.) First, there is not a reference in the statute to activities required by the program, only activities connected with the program. Second, extracurricular activities, such as gymnastics, are within the legislative mandate that "School Boards * * * shall provide for * * * the physical education * * * of pupils" (Ill. Rev. Stat. 1977, ch. 122, par. 27-5), and therefore are connected with the school program. Consequently, it is the opinion of this court that the coaching of a gymnastics team practice session is within the loco parentis immunity provided by section 24-24.

Next, Montag seems to raise three constitutional arguments. First, it is claimed that the statute is irrational because it allows an immunity from negligence for teachers but not for other non-certified school personnel who may engage in the same activity. There must be a rational basis for any statute in order to render it constitutional. The rationality of the section's scope was explained in Kobylanski v. Chicago Board of Education (1976), 63 Ill.2d 165, 175, and need not be repeated here. Furthermore, other non-certified school employees are granted an immunity by the Local ...

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