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06/29/87 Kathleen Hilgendorf, By v. the First Baptist Church

June 29, 1987

KATHLEEN HILGENDORF, BY THOMAS HILGENDORF, HER NEXT FRIEND, PLAINTIFF-APPELLANT

v.

THE FIRST BAPTIST CHURCH OF DANVILLE, ET AL., DEFENDANTS-APPELLEES

THIS CASE CONCERNS SECTION 24-24 OF THE SCHOOL CODE (ILL. RE

v.

STAT. 1985, CH. 122, PAR. 1-1 ET SEQ.), WHICH PROVIDES:



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

510 N.E.2d 527, 157 Ill. App. 3d 428, 109 Ill. Dec. 659 1987.IL.926

Appeal from the Circuit Court of Vermilion County; the Hon. Paul W. Wright, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. SPITZ, P.J., and McCULLOUGH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

"Teachers and other certificated 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." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 122, par. 24-24.

In Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 173, 347 N.E.2d 705, 709, the supreme court reasoned that, if teachers and other personnel stand in loco parentis to pupils, the teachers and other certified personnel are entitled to the benefit of the doctrine of parental immunity and that those teachers and other personnel and their employers are immune from liability "for negligence arising out of ' matters relating to the discipline in and conduct of the schools and the school children.'" (Emphasis added.) Section 24 -- 24 has been held to grant the same immunity when the educational institution involved is a parochial school. (Cotton v. Catholic Bishop (1976), 39 Ill. App. 3d 1062, 351 N.E.2d 247; Merrill v. Catholic Bishop (1972), 8 Ill. App. 3d 910, 290 N.E.2d 259.) The main issue here is whether section 24 -- 24 provides immunity from suits for negligence to defendant The First Baptist Church of Danville (church) and its employee, defendant Kim Bailey, under the circumstances involved here. We hold that it does.

On December 16, 1985, Thomas Hilgendorf filed a complaint in the circuit court of Vermilion County on behalf of his minor daughter, the plaintiff, Kathleen Hilgendorf. A subsequent amended complaint alleged in count I that (1) plaintiff was enrolled in the day-care program of the First Baptist Church School (school) which was owned and operated by the defendant church; (2) defendant allowed the children in the day-care program to play on the school's playground and supplied supervisors for the activities on the playground; (3) defendant carelessly and negligently supervised and controlled the activities of the children; and (4) as a result, plaintiff fell from the ladder of a slide and injured her leg. Count II was virtually identical to count I except it alleged that defendant Kim Bailey was employed by the school, was in charge of plaintiff's activity, and negligently supervised the recess period.

Defendants filed a motion to dismiss plaintiff's amended complaint with prejudice under section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) alleging that defendants were immune from liability for negligent acts under section 24-24 of the School Code. In support of the motion, defendants filed affidavits of the principal of the school and of Kim Bailey. On October 28, 1986, following a hearing on defendants' motion, the court entered an order ruling that defendants were immune from liability for the negligence charged and dismissing the amended complaint in bar of action. Plaintiff has appealed, contending: (1) the immunity arising from section 24-24 of the School Code does not cover the operation of a day-care facility operated by a private institution such as the church; and (2) to grant defendants such immunity would deny plaintiff equal protection. We affirm.

A "school" has been defined as a place "where instruction is given, generally to the young." (Possekel v. O'Donnell (1977), 51 Ill. App. 3d 313, 316, 366 N.E.2d 589, 592.) The uncontested affidavits filed by defendants indicated that (1) the day-care program in which plaintiff was participating was affiliated with a private, parochial school system operated by the defendant church; (2) defendant Bailey was an elementary school teacher, certified by the State of Illinois; and (3) plaintiff participated in a course of study in the day-care program which included instruction in the alphabet, reading, and art. We conclude that the day-care program operated by the defendant church was a "school" even though the participating children were not of an age at which their participation was mandated by law and although the time which they spent receiving instruction was not as long as that given to older children and involved more playtime.

Another significant question is whether the school came within the scope of the immunity that is derived from section 24-24. Plaintiff calls our attention to the opinion in Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, where the court held that section 24-24 immunity and that arising from section 34-84a of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 34-84a) were not applicable to charges of negligence in the selection and purchase of equipment for the athletic program of a school. Section 34-84a contains provisions similar to section 24-24 but is applicable only to cities having a population of over 500,000. The Gerrity court emphasized that under Kobylanski, immunity for schools arises because of the in loco parentis relationship given teachers by sections 24-24 and 34-84a when exercising supervision and discipline. (See also Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447.) Similar to its holding in Gerrity, the Illinois Supreme Court determined in O'Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 415 N.E.2d 1015, that a teacher was not immune from suit for negligence when he exceeded his area of expertise by allowing a student to perform medical treatment for an injured student.

Here, defendant Bailey was alleged to have been negligent in her supervision, which was an area of her expertise as a certified teacher and the type of activity from which an in loco parentis relationship with pupils arises by the express terms of section 24 -- 24. The negligence is alleged to have occurred on the playground rather than in a classroom, but the immunity provided by section 24 -- 24 has been held to be applicable to allegations of a teacher's negligent supervision and discipline while engaged in extracurricular activities. Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 395 N.E.2d 538.

Plaintiff notes that the appellate court has restricted the application of the doctrine of parental immunity in recent years in Gulledge v. Gulledge (1977), 51 Ill. App. 3d 972, 367 N.E.2d 429 (no immunity to grandparents), and Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12 (no immunity in regard to an occurrence not involving a family relationship). She now vigorously requests that we completely abolish the doctrine, thus extinguishing the predicate for the immunity asserted by defendants here. She maintains that the Illinois Supreme Court has never approved parental immunity and cites the recent case of Stallman v. Youngquist (1987), 152 Ill. App. 3d 683, 504 N.E.2d 920, where a cause of action for negligence brought on behalf of a child against a parent was permitted by a division of the First District.

Plaintiff does not clearly indicate how we could disregard the precedent of Kobylanski in order to hold that parental immunity was not available to teachers. In support of the contention that the supreme court had never approved parental immunity, the Stallman court maintained that the "teacher immunity" set forth in Kobylanski and its progeny was adopted merely by analogizing parental immunity to "teacher immunity." (152 Ill. App. 3d 683, 688, 504 N.E.2d 920, 923.) We cannot agree with that analysis. The existence of parental immunity was a predicate from which "teacher immunity" was implied once the legislature placed teachers and other certified personnel in loco parentis by operation of section 24-24 of the Illinois School Code (Ill. Rev. Stat. 1985, ch. 122, par. 24-24). We could not properly abolish ...


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