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04/16/87 Michael Ausmus, A Minor By v. the Board of Education of

April 16, 1987

MICHAEL AUSMUS, A MINOR BY HIS MOTHER AND NEXT FRIEND, DEBBIE AUSMUS, PLAINTIFF-APPELLANT

v.

THE BOARD OF EDUCATION OF THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

508 N.E.2d 298, 155 Ill. App. 3d 705, 108 Ill. Dec. 137 1987.IL.506

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

This is an appeal from the dismissal of count I of a complaint seeking damages for personal injuries.

Plaintiff, a minor, by his mother and next friend, filed a three-count, second-amended complaint against defendants, the Chicago board of education (the board) and John Bates, a teacher at the Nathaniel Green Elementary School in Chicago, for injuries he sustained when he was hit in the face with a wooden bat swung by a female classmate (Tammy) while he was playing the position of catcher in a softball game conducted during his third-grade physical education class. Count I, which named only the board, sounded in ordinary negligence; count II, against both defendants, alleged willful and wanton misconduct; and count III charged a constitutional violation premised on 42 U.S.C. sec. 1983 (1982). Defendants' motions to dismiss were granted and this appeal, which concerns only the dismissal of count I, followed.

In that count, plaintiff alleges, in substance, that the board breached its duty to exercise reasonable care in providing the students with safe equipment for use in connection with a school-conducted softball game by (a) negligently furnishing them with a regulation size and weight wooden bat for use by adults, which was too heavy to be safely held and swung by children of the age of plaintiff and his classmates, many of whom, including Tammy, had no previous experience in swinging any type of baseball bat and who were unable, because of their size and lack of experience, to properly hold or swing a baseball bat of the type furnished; and (b) failing to provide (1) equipment less dangerous for use by children of plaintiff's age and experience, such as a plastic or lighter wooden or aluminum bat, (2) a safety helmet or face mask to protect the child acting as catcher against injuries of the type sustained by plaintiff, (3) a backstop or other markings to indicate the areas within and behind which were safe for batting and catching, respectively, and (4) adequate medical and first aid equipment for use by school personnel in attending to injured children and that his injuries were the proximate result thereof.

When presented with a motion to dismiss challenging the legal sufficiency of a complaint, the court is required to accept as true all well-pleaded facts and reasonable inferences therefrom (American States Insurance Co. ex rel. Community Unit School District No. 27 v. Flynn (1981), 102 Ill. App. 3d 201, 429 N.E.2d 587) and then determine whether the allegations, when interpreted in the light most favorable to the plaintiff, are sufficient to state any cause of action upon which relief may be granted (Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill. App. 3d 856, 863, 403 N.E.2d 470; McCauley v. Chicago Board of Education (1978), 66 Ill. App. 3d 676, 677, 384 N.E.2d 100). In examining the complaint, Conclusions unsupported by facts are to be disregarded (Tijerina v. Evans (1986), 150 Ill. App. 3d 288, 501 N.E.2d 995); but the action should not be dismissed unless it clearly appears that no set of facts can be proved which would entitle the plaintiff to relief (Griffis v. Board of Education (1979), 72 Ill. App. 3d 784, 787, 391 N.E.2d 451).

Turning then to the complaint at issue, the parties agree that, generally, school districts are immune from liability for ordinary negligence by virtue of sections 24-24 and 34-84a *fn1 of the School Code (Ill. Rev. Stat. 1985, ch. 122, pars. 24-24, 34-84a), which 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."

In Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705, our supreme court held that the in loco parentis status conferred upon educators by these sections extends to nondisciplinary as well as disciplinary matters and that a plaintiff must, therefore, prove willful and wanton misconduct to recover in suits alleging improper supervision.

Relying primarily on Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, and Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447, plaintiff contends, however, that unlike the complaint at issue in Kobylanski, count I of his complaint does not allege negligence in connection with matters relating to supervision but, rather, states a valid cause of action for negligence in furnishing improper equipment -- to which the immunity conferred upon school districts by section 34 -- 84a, as construed by Kobylanski, does not extend -- and that it was, therefore, improperly dismissed.

In Gerrity, the 15-year-old plaintiff suffered severe injuries while making a tackle in a junior-varsity football game. He alleged, in count VI of his complaint, that ...


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