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07/01/87 Gary D. Prest, A Minor By v. Sparta Community Unit

July 1, 1987

GARY D. PREST, A MINOR BY HIS FATHER AND NEXT FRIEND, JEROME W. PREST, ET AL., PLAINTIFFS-PETITIONERS

v.

SPARTA COMMUNITY UNIT SCHOOL DISTRICT NO. 140, DEFENDANT-RESPONDENT

SECTION 24-24 OF THE SCHOOL CODE (ILL. RE

v.

STAT. 1985, CH. 122, PAR. 24-24) PROVIDES IN PERTINENT PART:



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

510 N.E.2d 595, 157 Ill. App. 3d 569, 109 Ill. Dec. 727 1987.IL.948

Appeal from the Circuit Court of Randolph County; the Hon. Carl H. Becker, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. WELCH, J., concurs. PRESIDING JUSTICE KARNS,1 Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Plaintiffs, Gary D. Prest, a minor, and Jerome W. Prest, his father, appeal from an order dismissing counts I and II of plaintiffs' complaint against defendant, Sparta Community Unit School District No. 140, a municipal corporation. This appeal is taken pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308).

It is alleged in counts I and II of the complaint filed herein on February 13, 1986, that plaintiff Gary D. Prest sustained injuries to his person on or about September 10, 1985, when he fell in "the boy's gym, against an unprotected concrete riser," and that defendant was negligent in that it:

"(a) Placed and maintained an unprotected concrete riser located in the front row of the bleachers of the boy's gymnasium, which was in close proximity to gym participants.

(b) Failed to pad, foam, or otherwise protect a concrete riser located in the front row of the bleachers."

The defendant filed a motion to dismiss stating that to be liable to a student on the facts alleged, "the standard of care that must be reached [ sic ] is wilful and wanton." The trial court dismissed counts I and II of the complaint and pursuant to Supreme Court Rule 308 made a finding that the order involved "a question of law as to whether Illinois Revised Statutes, Chapter 122, Section 24 -- 24 is applicable to the facts alleged in plaintiff's complaint." We find that it is not, and reverse and remand for the reasons that follow.

"Maintenance of discipline. 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."

This statutory language does not limit the liability of a teacher to only disciplinary situations, but also to activities directed by a teacher as part of a school program. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 172, 347 N.E.2d 705, 708.) It is clear that the legislature sought to vest teachers with parental status in all matters relating to discipline in and conduct of the schools and school children. The doctrine of "parental immunity" being applicable in such case, it is necessary for the plaintiff to plead and prove defendant's wilful and wanton misconduct. (63 Ill. 2d 165, 173, 347 N.E.2d 705, 709.) However, our supreme court in Gerrity v. Beatty (1978), 71 Ill. 2d 47, 51-52, 373 N.E.2d 1323, 1325-26, held that while the Kobylanski decision and the appellate court decisions referred to therein were concerned with teachers' supervision, it was not inconsistent with the intended purpose of section 24 -- 24 of the School Code to hold school districts to the duty of ordinary care in a separate function.

In Gerrity v. Beatty, the trial court dismissed count VI of the plaintiff's complaint, which alleged ordinary negligence on the part of the defendant school district in furnishing plaintiff with an ill-fitting and inadequate football helmet. However, the supreme court, in reversing and remanding with directions to reinstate, found that count VI did not allege negligence in matters relating to the teacher's supervision, "but instead alleged negligence in connection with what we consider to be the separate function of furnishing equipment which was alleged to be inadequate, ill fitting and defective and which was known, or which in the exercise of ordinary care should have been known, to be liable to cause injury to the plaintiff." (Emphasis added.) (71 Ill. 2d 47, 52, 373 N.E.2d 1323, 1326.) It concluded that the factual allegations of count VI fell outside the scope of section 24 -- 24 of the School Code and that Kobylanski was not controlling. The Gerrity decision circumscribes the application of the statute.

In the case sub judice, counts I and II of plaintiffs' complaint are based on the theory of landowners' premises liability, which quite simply involves an entirely different function than the matters involved in ...


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