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06/22/94 KIMBERLY ORAVEK v. COMMUNITY SCHOOL

June 22, 1994

KIMBERLY ORAVEK, A MINOR, BY HER MOTHER AND NEXT FRIEND, KATHY BRANN, PLAINTIFF-APPELLANT,
v.
COMMUNITY SCHOOL DISTRICT 146, DEFENDANT-APPELLEE, AND MARK J. LISCAK, A MINOR, JERRY LISCAK AND ANNA LISCAK, DEFENDANTS.



Appeal from the Circuit Court of Cook County. Honorable Willard Lassers, Judge Presiding.

Greiman, Rizzi, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

In this personal injury case, plaintiff Kimberly Oravek, a minor, by her mother and next friend, Kathy Brann, appeals the trial court's order which granted the motion of defendant Community School District 146 to dismiss count II of her fourth amended complaint alleging wilful and wanton conduct.

On appeal plaintiff contends that the question of wilful and wanton conduct must be decided by the trier of fact, not by the court, and that count II of her fourth amended complaint sufficiently states a cause of action for wilful and wanton conduct to withstand a motion to dismiss under section 2-615 (735 ILCS 5/2-615 (West 1992)).

We disagree with both of plaintiff's contentions and affirm the dismissal of her wilful and wanton count against defendant. The fourth amended complaint fails to state facts upon which the trier of fact can find wilful and wanton conduct.

About 7 p.m. on September 17, 1988, (a Saturday), the 12-year-old plaintiff was riding a bicycle on defendant's premises at Kruse School in Orland Park, Illinois. When she turned a corner, plaintiff encountered a skateboard ramp, unsuccessfully attempted to avoid it, ran the bicycle partially up the ramp, fell and sustained injuries.

The ramp, approximately four feet high, had been transported to the school property by codefendants Mark Liscak, a minor, and his parents, Jerry and Anna Liscak, who organized and conducted an event known as a skate jamboree or skate jam on the school property. The Liscak codefendants are the subjects of a negligence count in plaintiff's fourth amended complaint and are not a part of the present appeal.

In her fourth amended complaint plaintiff alleges that defendant "through its agents and employees had specific knowledge of the presence of [the] skateboard ramp on the situs of Kruse School" and failed to remove the ramp until after plaintiff's accident. Plaintiff further alleges that defendant engaged in wilful and wanton conduct because school policy prohibited skateboards and skateboard ramps at Kruse School and that paragraph 13 of the fourth amended complaint provides:

"With conscious and reckless disregard of the safety of the Plaintiff and others failed to remove and/or destroy said skateboard ramp from the situs of Kruse School although, said Defendant, SCHOOL DISTRICT 146, through its agents and employees knew or in the exercise of ordinary care should have known:

1) Said skateboard ramp had been abandoned on the school situs.

2) Said skateboard ramp was inherently dangerous to any person using same.

3) Said skateboard ramp was an attractive nuisance by its very design, inviting children to play upon or use same.

4) The presence of said skateboard ramp was against school policy and failing to remove said ramp was in ...


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