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04/10/89 Fannie Magee, v. Board of Education of the

April 10, 1989

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION VICTOR M. WINSTON, A MINOR BY HIS MOTHER AND NEXT FRIEND, FANNIE MAGEE, PLAINTIFF-APPELLANT

v.

BOARD OF EDUCATION OF THE CITY OF CHICAGO, DEFENDANT-APPELLEE



537 N.E.2d 964, 182 Ill. App. 3d 135, 130 Ill. Dec. 635 1989.IL.497

Appeal from the Circuit Court of Cook County; the Hon. Irving R. Norman, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. MANNING, P.J., and QUINLAN,* J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Plaintiff, Victor M. Winston, appeals from the finding of a directed verdict in favor of defendant, the Board of Education of the City of Chicago, in a personal injury action.

The minor plaintiff, age five, by his mother and next friend, Fannie Magee, filed an action on February 24, 1976, against the defendant Board of Education to recover damages for severe and permanent injuries he sustained when he was hit by a car shortly after noon on March 8, 1974, in an intersection adjacent to the Anthony Overton public school in Chicago, where he was a kindergartener. In his three-count complaint, the plaintiff also sued the police department of the City of Chicago and the automobile driver, Lonnie Davis. The complaint alleged that the plaintiff, a pedestrian, was near the intersection of 50th and Indiana Avenue in Chicago when he was struck by the defendant driver, and a negligence cause of action was alleged against Davis. A negligent failure to safely guard the intersection was also alleged against the police department of the City of Chicago. On August 10, 1976, the trial court granted the motion of the defendant Board of Education to dismiss plaintiff's complaint for failure to state a cause of action, but ordered that the case would continue against the remaining defendants, the City of Chicago and Lonnie Davis. On August 16, 1985, a settlement order was entered which provided that the City of Chicago would pay plaintiff $2,500. On January 30, 1986, a default judgment was proved up against the defendant, Lonnie Davis, in the amount of $875,000.

On November 6, 1985, approximately nine years after the filing of the original complaint, the plaintiff filed a second amended complaint against the Board of Education. On April 17, 1986, the trial court denied the Board of Education's motion to dismiss plaintiff's second amended complaint. The second amended complaint alleged that the defendant Board of Education knew that the school rule to cross at the intersection of 49th and Indiana Avenue went unheeded by students; that the defendant knew that Indiana Avenue, due to its width, volume and speed of traffic would be highly dangerous for a five-year-old to cross without assistance, that the defendant knew that other children had, in fact, been struck by motor vehicles when going to and from the Anthony Overton School; that the defendant engaged in wilful and wanton behavior by discharging the five-year-old plaintiff, knowing his trip home would be unsupervised and he would cross the highly traveled Indiana Avenue; that the defendant failed to require of parents or guardians that all pupils of the age and experience of plaintiff be accompanied home by a person of sufficient age and experience; and, finally, that the defendant failed to station patrols or teachers on school grounds in order to direct pupils away from crossing Indiana Avenue other than at the guarded intersection.

The case proceeded to trial from October 21, 1987, through October 28, 1987, at which time the plaintiff rested his case. Subsequently, the trial court granted defendant's motion for a directed verdict and plaintiff now appeals.

Plaintiff contends on appeal that the Board of Education owes a duty of protection and supervision to a five-year-old kindergarten child on school premises even where that child is injured in a street intersection adjacent to the school and not on school property. Plaintiff maintains this is especially applicable to this case since the school policy required that the school would retain control of kindergarteners until a parent arrived to pick them up or parental permission is given to allow the child to go home alone.

In Booker v. Chicago Board of Education (1979), 75 Ill. App. 3d 381, 394 N.E.2d 452, the plaintiff student complained that several of her classmates had threatened her with physical harm unless she made payments of money to them. The plaintiff had advised the teacher of the threats. Thereafter, the teacher accompanied her class to the bathroom. The teacher remained in the hallway adjacent to the bathroom while the student entered it. While the plaintiff was inside the bathroom, she was physically assaulted by a group of her classmates. The plaintiff brought an action against the Board of Education to recover for her injuries. This court held that plaintiff's complaint did not state a cause of action since the Board of Education had not engaged in wilful and wanton misconduct. The court reiterated the well-recognized principle and definition of wilful and wanton misconduct as set out in Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 69 N.E.2d 293:

"A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care." (394 Ill. at 583, 69 N.E.2d at 300.)

In Booker, the court concluded that since there were no allegations that the teacher had knowledge of an impending danger to the plaintiff if she entered the bathroom unaccompanied by a teacher, the cause of action must fail. The court further stated that in order to state a cause of action for wilful and wanton misconduct, the plaintiff must allege facts which give rise to a duty in the law on the part of the defendant and that the intentional breach of that duty resulted in plaintiff's injury. The mere Conclusion of wilful and wanton misconduct is insufficient.

In the case at bar, the plaintiff was permitted to file a second amended complaint approximately nine years following the filing of his original complaint. In making a ruling directing a verdict in favor of the defendant, the trial Judge stated, in part, that he permitted the case to go to the jury because of allegations in the complaint that it was well known that other children had been struck by motor vehicles crossing Indiana Avenue upon coming or leaving the Overton School. At trial, however, plaintiff failed to provide any evidence to support this allegation. We have reviewed the record in this matter and are in agreement with the trial court's finding that the evidence was lacking to support a charge of wilful and wanton misconduct and find no error in the granting of a directed verdict for defendant. Collins v. Hyster Co. (1988), 174 Ill. App. 3d 972, 529 N.E.2d 303.

At trial, Victor Winston's mother, Fannie Magee, testified that she would walk her son to and from school, or would allow his cousin, Anthony Quinn, to do so. On the date of the incident, March 8, 1974, Anthony Quinn brought Victor Winston to school and agreed with his mother to pick him up after school. Since Anthony Quinn is now deceased, there was no evidence presented as to whether, in fact, he did pick up the child. No witnesses testified as to the actual occurrence and no evidence was admitted as to the factual circumstances of the impact between the automobile involved and the child. Under ...


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