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09/27/89 Lara Bertetto, A Minor, By v. Sparta Community Unit

September 27, 1989

FRIENDS, RANDY BERTETTO, ET AL., PLAINTIFF-APPELLANT

v.

SPARTA COMMUNITY UNIT DISTRICT NO. 140, DEFENDANT-APPELLEE AND COUNTERDEFENDANT-APPELLEE (THE CITY OF SPARTA, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

LARA BERTETTO, A Minor, by and through her Parents and Next

544 N.E.2d 1140, 188 Ill. App. 3d 954, 136 Ill. Dec. 365 1989.IL.1523

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. RARICK and GOLDENHERSH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Plaintiff, Lara Bertetto, and defendant-counterplaintiff, City of Sparta (the City), appeal from an order of the circuit court of Randolph County which dismissed with prejudice counts I and II of plaintiff's amended complaint and the City's second amended counterclaim for contribution. The circuit court entered its order pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615) on the grounds that these pleadings failed to state a claim upon which relief could be granted. For the reasons which follow, we find that plaintiff's amended complaint did sufficiently allege claims for negligence and wilful and wanton misconduct and that the City's counterclaim likewise sufficiently stated a cause of action for wilful and wanton misconduct. We therefore reverse and remand for further proceedings.

In ruling on a motion to dismiss, a court must accept as true all well-pleaded facts in the pleading attacked, as well as all reasonable inferences which can be drawn from those facts that are favorable to the pleader. (Burks v. Matrix Vision of Wilmette, Inc. (1988), 174 Ill. App. 3d 1086, 1087, 529 N.E.2d 642, 643.) A cause should not be dismissed on the grounds that the pleadings fail to state a cause of action unless, clearly, no set of facts could be proven under the pleadings which would entitle the plaintiff to relief. Northrop Corp. v. Crouch-Walker, Inc. (1988), 175 Ill. App. 3d 203, 212, 529 N.E.2d 784, 789.

The pleadings at issue here alleged that plaintiff suffers from a medical condition diagnosed as spinal muscle atrophy with scoliosis and that she is confined to a wheelchair. She was a student at the Sparta-Lincoln Attendance Center at 200 North St. Louis Street, Sparta, Illinois, which was owned and operated by the defendant Sparta Community Unit District No. 140 (the School District). On the other side of North St. Louis Street from the center was a playground which the School District also controlled and maintained.

The pleadings further alleged that on September 8, 1986, the School District transported plaintiff from the center to the playground in her wheelchair. That wheelchair had been entrusted to the District by plaintiff's parents. Although plaintiff's parents had advised the School District that plaintiff had to be secured in the wheelchair by her seat belt whenever she was moved, plaintiff's seat belt was not fastened on this occasion. One of plaintiff's classmates was allowed to push plaintiff along in the wheelchair, and as this was being done, the wheels of the wheelchair hit a "crevice," "thereby throwing the plaintiff with force and violence upon the pavement." As a result of this accident, plaintiff suffered numerous injuries, including a fractured right femur, bruises, contusions of the body and internal injuries.

In 1988, plaintiff, by her parents and next friends, filed a complaint in the circuit court of Randolph County to recover damages for the personal injuries she sustained in the September 8, 1986, accident. Plaintiff's complaint, as amended, was in three counts. Counts I and II were directed against the School District. Count I alleged negligence, and count II was premised on wilful and wanton misconduct. Count III was directed against the City of Sparta and alleged that the City had been negligent in failing to keep the walkway between the center and the playground in a reasonably safe condition for pedestrians and students; that it had permitted a "crevice" to "be and remain upon said walkway, thereby creating a dangerous condition"; and that it failed to repair the "crevice" in the walkway.

The City, in turn, filed a counterclaim against the School District for contribution. In its second amended counterclaim, the pleading at issue here, the City argued that it was entitled to contribution from the School District because the District was guilty of wilful and wanton misconduct.

The School District filed a motion pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615) to dismiss counts I and II of plaintiff's amended complaint and the City's second amended counterclaim for contribution on the grounds that those pleadings failed to state a claim upon which relief could be granted. Following a hearing, the School District's motion was granted, and counts I and II of the amended complaint and the second amended counterclaim for contribution were dismissed with prejudice. At the same time, the circuit court made an express written finding that there was no just reason for delaying an appeal. (Rule 304(a), Official Reports Advance Sheet No. 23 (eff. Jan. 1, 1989), 134 Ill. 2d R. 304(a).) Plaintiff and the City have each now appealed.

There is no dispute that the circuit court dismissed count I of plaintiff's amended complaint, which sought recovery from the School District based on negligence, only because the court believed that the District was ...


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