Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tijerina v. Evans

OPINION FILED DECEMBER 10, 1986.

ROBERT TIJERINA, A MINOR BY HIS FATHER AND NEXT FRIEND JESSE J. TIJERINA, PLAINTIFF-APPELLANT,

v.

DALE EVANS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County; the Hon. Helen C. Kinney, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Plaintiff, Robert Tijerina, a minor by his father and next friend, Jesse J. Tijerina, appeals from the order of the circuit court of Du Page County dismissing counts I, II, and III of his five-count first amended complaint which alleged wilful and wanton misconduct against defendants, Dale Evans, Glenbard North High School, and Glenbard School District No. 86 for failure to state a cause of action.

On appeal, plaintiff contends that sufficient facts were alleged to state a cause of action against defendants for wilful and wanton misconduct.

The amended complaint in counts I, II, and III alleged that plaintiff, a student at Glenbard North High School, sustained an injury during his physical education class in the school gymnasium while participating in a whiffle ball game under the supervision of a teacher, defendant Dale Evans. It is alleged that during his participation in the physical education class, plaintiff ran into and against the first row of bleachers causing his injury. Plaintiff further alleged that Evans, as well as the high school and school district through their relationships as the employers of Evans, were guilty of wilful and wanton misconduct relating to the occurrence of plaintiff's injury as follows:

"(a) Required students including the plaintiff to play a whiffle ball game within the close confines of the gymnasium of the school when he knew or in the exercise of reasonable care should have known, that playing such a whiffle ball game within such close confines posed a danger of injury to said students;

(b) Required students, including the plaintiff, to play a whiffle ball game in the gymnasium of the school while the first row of bleachers in said gymnasium had been pulled out and placed in a locked position, when he knew or in the exercise of reasonable care should have known that said first row of bleachers in that open position posed a danger of injury to the students;

(c) Failed to warn the students, including the plaintiff, of the danger posed by playing whiffle ball within the close confines of the gymnasium when he knew or in the exercise of [reasonable care] [sic] should have known that said students would not otherwise be aware of said danger;

(d) Failed to warn the students, including the plaintiff of the danger posed by playing whiffle ball within the gymnasium while the first row of bleachers had been pulled out and placed in a locked position, when he knew, or in the exercise of reasonable care should have known that the students would not otherwise be aware of said danger;

(e) Failed to inspect the gymnasium prior to the start of the physical education class when he knew or in the exercise of reasonable care should have known that such an inspection was necessary to discover and remove hazards that could or might endanger the health and safety of the students in the class;

(f) Failed to place the first row of bleachers in the gymnasium in a closed position prior to the start of the physical education class when he knew, or in the exercise of reasonable care should have known that to leave said first row of bleachers in an opened and locked position posed a danger of injury to the students in said class;

(g) Failed to monitor the activities of the students in the physical education class, during the course of said class, when he knew or in the exercise of reasonable care should have known that such monitoring of the class was necessary to prevent injury to said students."

Two other counts alleged negligence against the high school and the school district for the failure to use reasonable care in providing both safe facilities and safe equipment for the students' use during the physical education classes. These counts need not be set forth as they were not dismissed and remain pending in the trial court.

Defendants filed a motion to dismiss which, in pertinent part, asserted that the three wilful and wanton counts were conclusory and did not set forth sufficient facts to constitute wilful and wanton misconduct. The trial court dismissed these counts finding that the facts as pleaded did not amount to wilful and wanton conduct as a matter of law. The court later found there was no just reason for delaying enforcement or appeal of the dismissal order, and plaintiff has appealed pursuant to Supreme Court Rule 304(a) (103 Ill.2d R. 304(a)).

Plaintiff contends that sufficient facts were alleged to state a cause of action for wilful and wanton misconduct. He maintains that pleadings are to be liberally construed and that he is only required to plead that defendants knew or reasonably should have known that injury to him was likely to occur if the whiffle ball game was played in the close confines of the gymnasium while the first row of bleachers was pulled out in a locked position. He further argues that the pleaded facts demonstrate a "hazardous condition" which was disregarded by the defendants. Requiring that more facts be alleged, he contends, would result in the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.