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12/27/89 Lisa Jastram, By Her v. Lake Villa School District

December 27, 1989

JASTRAM, PLAINTIFF-APPELLANT

v.

LAKE VILLA SCHOOL DISTRICT 41, DEFENDANT-APPELLEE (B.J. HOOPER SCHOOL, DEFENDANT)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

LISA JASTRAM, by her Father and Next Friend, Michael

549 N.E.2d 9, 192 Ill. App. 3d 599, 139 Ill. Dec. 686 1989.IL.2031

Appeal from the Circuit Court of Lake County; the Hon. Fred A. Geiger, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Plaintiff, Lisa Jastram, by her father and next friend, Michael Jastram, appeals from a summary judgment granted in the circuit court of Lake County, in favor of defendant, Lake Villa School District 41, on both counts of plaintiff's complaint. On appeal, plaintiff contends that the trial court erred in entering summary judgment in favor of defendant because defendant is not statutorily immune from tort liability.

The pleadings, motions and depositions filed in this case reveal that plaintiff, a minor, was injured on the school playground when she fell from a set of monkey bars. The accident occurred during recess while the playground was supervised by two adults. Plaintiff sued the school district and B.J. Hooper School; it appears, however, that B.J. Hooper School is merely one of the properties controlled by the school district and is not a legal entity. Count I of plaintiff's complaint alleges that defendant breached its duty to the plaintiff in that it (a) failed to supervise recess activities; (b) provided dangerous climbing apparatus; (c) failed to provide a safe and proper place for recess; (d) dangerously constructed climbing apparatus on a hard surface; and (e) failed to have a responsible adult on the playground. Count II is identical to count I except that plaintiff alleges that defendant's acts and omissions were willful and wanton.

Defendant filed a motion for summary judgment alleging that a school district is liable only for willful and wanton misconduct and that the undisputed facts in this case do not establish willful and wanton misconduct. The trial court granted summary judgment in favor of defendant upon a finding that "the immune provisions of the School Code apply herein." Plaintiff filed this timely appeal.

Plaintiff argues that defendant is not statutorily immune from liability for ordinary negligence under the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 1-1 et seq.). The immunity provisions of the School Code referred to by the trial court are found in sections 24-24 and 34-84a of that code. (Ill. Rev. Stat. 1987, ch. 122, pars. 24-24, 34-84a.) Section 24-24 applies to cities with populations of less than 500,000, and section 34-84a applies to cities with populations of more than 500,000. The pertinent parts of the two statutes are identical, and they provide:

"Teachers and other certificated 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, including all athletic and extracurricular programs, 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. 1987, ch. 122, pars. 24-24, 34-84a.

These statutes confer upon educators the status of parent or guardian to the students. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 170.) A parent is not liable for injuries to his child absent willful and wanton misconduct. (Kobylanski, 63 Ill. 2d at 170.) By operation of the statute, therefore, educators are granted immunity from suits for ordinary negligence arising out of "matters relating to the discipline in and conduct of the schools and the school children." Kobylanski, 63 Ill. 2d at 173.

In Gerrity v. Beatty (1978), 71 Ill. 2d 47, our supreme court determined that School Code immunity applied to allegations of "negligence arising out of the teacher-student relationship in matters relating to the teacher's personal supervision and control of the conduct or physical movement of a student" but not to allegations of negligence in connection with "the separate function of furnishing equipment." (71 Ill. 2d at 52.) The immunity does not apply to allegations of negligence in maintaining the school premises either. (Ramos v. Waukegan Community Unit School District No. 60 (1989), 188 Ill. App. 3d 1031, 1035.) In this case, paragraphs 5(b), 5(c), and 5(d) of plaintiff's complaint allege that defendant was negligent in providing dangerous climbing apparatus, failing to provide a safe and proper place for recess, and dangerously constructing climbing apparatus on a hard surface. These allegations do not implicate the direct teacher-student relationship; instead, they concern the supplying of equipment and the condition of the premises. We conclude, therefore, that they fall outside the limited protection of the School Code immunity provisions. See also Bowers v. Du Page County Regional Board of School Trustees District No. 4 (1989), 183 Ill. App. 3d 367 (school board not immune under School Code from negligence in supplying equipment).

Paragraphs 5(a) and 5(e) of the complaint, however, allege that the school district was negligent in failing to supervise and failing to have a responsible adult on the playground. Both sides agree that there were two supervisors on the playground at the time plaintiff was injured and that the ...


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