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05/24/89 Donald Fleming Brock, Jr., v. Rockridge Community Unit

May 24, 1989

DONALD FLEMING BROCK, JR., ET AL., PLAINTIFFS-APPELLANTS

v.

ROCKRIDGE COMMUNITY UNIT DISTRICT NO. 300, COUNTY OF ROCK ISLAND, ET AL., DEFENDANTS-APPELLEES (CRAIG FREDERICK, DEFENDANT)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

539 N.E.2d 445, 183 Ill. App. 3d 447, 132 Ill. Dec. 135 1989.IL.793

Appeal from the Circuit Court of Rock Island County; the Hon. David DeDoncker, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. STOUDER, J., concurs. JUSTICE BARRY, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

Donald F. Brock III (Donald) sustained injuries while participating in a game of touch football during a supervised physical education class. Donald was injured when a fellow student, who was also participating in the game of touch football, stepped into an uneven portion of the school playing field, lost his balance, and fell into him. Donald, along with his parents, brought suit against the Rockridge Community District and the Rock Island Community Board of Education for the injuries sustained.

The original complaint alleged three specific instances of negligence on the part of the defendants: (1) failure to keep the playing field in a reasonably safe condition; (2) negligently requiring students to use an unreasonably dangerous playing field; and (3) failure to warn of the dangerous contours of the playing field. The original complaint was dismissed by the trial court based on section 24-24 of the Illinois School Code (Ill. Rev. Stat. 1985, ch. 122, par. 24-24). The trial court, however, granted the plaintiffs leave to amend. The plaintiffs then filed a first amended complaint which reduced the allegations of negligence to a failure to keep the premises in a reasonably safe condition and a failure to warn of the dangerous conditions. The trial court then dismissed with prejudice the first amended complaint for failure to state a cause of action and pursuant to section 24-24 (Ill. Rev. Stat. 1985, ch. 122, par. 24-24). The plaintiffs appeal both the dismissal of the original complaint and the dismissal of the first amended complaint.

On appeal the plaintiffs contend that the original complaint successfully stated a negligence cause of action based on the theory of defective equipment. We find such theory to be inapplicable to the facts of this case. The plaintiffs further argue that the first amended complaint successfully stated a negligence cause of action under the theory of premises liability. We find that the Illinois Supreme Court's decision in Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705, is authority for not applying a premises liability analysis to the facts of this case. Accordingly, we affirm.

The Illinois School Code, section 24 -- 24, provides:

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

The supreme court in Kobylanski held that this statute conferred immunity on teachers and school districts from negligence in the supervision of all activities connected with school programs. (Kobylanski, 63 Ill. 2d at 172.) The Kobylanski court went on to find that the statute provides that teachers stand in loco parentis to students. (Kobylanski, 63 Ill. 2d at 173.) Hence, teachers should not be subjected to any greater liability than parents, who are liable to their children only for wilful and wanton misconduct but not for negligence.

The plaintiffs, in their original complaint, attempt to rely on a narrow exception carved out of the teacher immunity rule set forth in Kobylanski. The plaintiffs assert that their original complaint sets forth a negligence claim based on the theory of defective equipment in accordance with Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323. In Gerrity, the court concluded that the act of furnishing a student a defective football helmet was a function separate and distinct from "the teacher-student relationship in matters relating to the teacher's personal supervision and control of the conduct or physical movement of a student." (Gerrity, 71 Ill. 2d at 52.) Thus, the Gerrity court determined that the public policy considerations granting teachers broad latitude and supervision did not apply as forcefully to the furnishing of equipment.

The plaintiffs' reliance on Gerrity is misplaced. The only cases in which the supreme court has limited the immunity of Kobylanski have concerned the furnishing of proper football helmets and face masks. No cases have concerned allegations of inadequate or unsafe playing fields. In the instant case, it was the physical education teacher's decision to play touch football on the school field. This kind of supervision of classroom activities is not a separate and distinct function from the teacher-student relationship as stated in Gerrity. Thus, playing touch football on a school field during physical education class falls under the purview of the immunity granted in section 24 -- 24 of the School Code. Moreover, the plaintiffs' original complaint alleges nothing about defective equipment. Consequently, the Gerrity exception does not apply and the trial court correctly dismissed the plaintiffs' original complaint.

The plaintiffs next allege that their first amended complaint stated a negligence cause of action under the theory of premises liability. The plaintiffs rely heavily on the recent case of Prest v. Sparta Community Unit School District No. 140 (1987), 157 Ill. App. 3d 569, to support its position. In Prest , the appellate court reversed the dismissal of a personal injury action against a school district where the plaintiff fell against a concrete riser in the boys' gymnasium. The plaintiff in Prest alleged that the defendant was negligent in maintaining the unprotected concrete riser in the front row of the bleachers, near gym participants, and failing to pad ...


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