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05/05/88 Kara Kristine Kirby, A v. Macon Public School

May 5, 1988

KARA KRISTINE KIRBY, A MINOR BY TONI L. KIRBY, HER MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT

v.

MACON PUBLIC SCHOOL DISTRICT NO. 5, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

523 N.E.2d 643, 169 Ill. App. 3d 416, 119 Ill. Dec. 887 1988.IL.686

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

The plaintiff appeals the order of the circuit court of Macon County dismissing her first-amended complaint for failure to state a cause of action. The plaintiff alleges that the complaint was sufficient to state a cause of action for negligence-premises liability and for wilful and wanton conduct.

We reverse in part and affirm in part.

As the parties are familiar with the facts involved, only those pertinent to our Disposition shall be reiterated.

On September 5, 1986, the plaintiff filed suit against the defendant alleging negligence-premises liability (count I) and negligent supervision (count II). The complaint was based upon an incident that occurred on September 10, 1984, when the plaintiff, Kara Kristine Kirby, sustained personal injuries after falling from a slide on defendant's premises. On December 31, 1986, the court granted the defendant's motion to dismiss the complaint with prejudice. The court thereafter vacated the dismissal, granting the plaintiff the right to file a first-amended complaint.

On April 22, 1987, the plaintiff filed her first-amended complaint alleging two counts of negligence-premises liability and two counts of wilful and wanton conduct. The negligence-premises liability counts of the complaint stated that during recess on September 10, 1984, the plaintiff, while on the top platform of a slide, was bumped and/or shoved by another student causing her to fall to the asphalt surface 12 feet below, suffering serious facial and head injuries. The defendant's negligence was based upon the fact:

"a. It allowed a slide 12 feet in height to be on its premises available to the children, but without any railings or bars to prevent a standing child from falling when bumped and/or shoved by another child.

b. It allowed the slide to be located over a surface (12 feet below) made of asphalt with no padding, cushion or other protective covering for the safety of a child who might fall from the top of a slide.

c. It allowed the slide to remain on the playground after other students had fallen from ...


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