Appeal from the Circuit Court of Cook County; the Hon. Brian
B. Duff, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 16, 1985.
Plaintiff appeals from an order of the circuit court of Cook County granting summary judgment to both defendants.
In June 1983, plaintiff filed his two-count third amended complaint in which he alleged: In February 1980, plaintiff was nine years old and attended Ignace Jan Paderewski elementary school. His teacher, defendant Roundy, "ordered and compelled" plaintiff to move a "large" desk from her classroom to another classroom. While moving the desk plaintiff fell, and was injured. In count I plaintiff contended that defendant, Chicago Board of Education (board), "through its agent and servant Hazel Roundy was guilty of one or more of the following acts of negligence:
"(a) Negligently and carelessly ordered the plaintiff to carry a large desk beyond his capacity or skill to handle;
(b) Negligently and carelessly failed to provide adequate supervision of the plaintiff so as not to bring harm to him and others;
(c) Negligently and carelessly operated and controlled the activities of the students in a manner which would not prevent harm to plaintiff and others;
(d) Negligently and carelessly failed to keep a proper lookout during the activities of her students so as not to prevent harm to plaintiff and others."
Count II alleged the same facts, and contended that defendants were guilty of wilful and wanton conduct in that they:
"(a) Wilfully and wantonly ordered plaintiff to carry a large desk outside the classroom knowing that this activity could cause him injury since the desk was too large for him to carry;
(b) Wilfully and wantonly ordered plaintiff to engage in a dangerous activity, to wit, moving heavy furniture;
(c) Wilfully and wantonly ordered plaintiff to perform an activity, such as moving heavy furniture, which was beyond the scope of their duty and obligation in providing an education for plaintiff."
Roundy filed a motion for summary judgment, attaching as exhibits thereto her affidavit, the transcript of plaintiff's deposition, and two pictures of the desk involved. In her affidavit, Roundy stated that on the date in question, her own classroom had too many desks and another classroom across the hallway was in need of more desks. She requested three or four students, including plaintiff, to assist her in moving some desks to the other classroom. She asserted that the desks involved "were small student desks," and that the top of the desks measured 14 inches by 22 inches. She stood in her classroom doorway so she could observe both the classroom and the students moving the desks the "20 or 30 paces" across the hallway to the other classroom. She saw plaintiff fall. She saw nothing on the hallway floor to trip plaintiff, nor was he "shoved or pushed" by anyone else. She further contended that she had in the past requested students to move similar desks, all without incident, and that "plaintiff was having no difficulty moving the desk until he tripped and fell." Her statement that "it appeared that [plaintiff] tripped over his own feet" was subsequently stricken by the trial court as a conclusion.
In relevant part, plaintiff's deposition testimony was that he had not moved desks on previous occasions; that Roundy did not give him any instructions as to how the desk was to be moved; and although he did not think he was strong enough to move the desk, he ...