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11/03/95 ROBERT F. KNAPP v. MICHAEL S. HILL

November 3, 1995

ROBERT F. KNAPP, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ROBERT J. KNAPP, DECEASED, PLAINTIFF-APPELLANT,
v.
MICHAEL S. HILL, DEFENDANT AND COUNTER-PLAINTIFF/APPELLANT, AND BREMEN COMMUNITY UNIT SCHOOL DISTRICT NO. 228, DEFENDANT/APPELLEE AND COUNTER-DEFENDANT/APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE JOSEPH N. CASCIATO, JUDGE PRESIDING.

Released for Publication December 21, 1995. Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice T. O'brien delivered the opinion of the court: Gordon and MC Nulty, J.j., concur.

The opinion of the court was delivered by: O'brien

JUSTICE T. O'BRIEN delivered the opinion of the court:

Plaintiff, Robert F. Knapp, individually and as Special Administrator of the estate of Robert J. Knapp (Robert), appeals from an order of the circuit court dismissing certain counts of plaintiff's second amended complaint with prejudice. The circuit court held that plaintiff failed to state a cause of action against Bremen Community Unit School District No. 228 (school district) under the theory of respondeat superior. The circuit court also found that the school district's failure to adequately supervise students did not constitute wilful and wanton misconduct as a matter of law. We affirm.

Because the circuit court granted the motion to dismiss pursuant to ยง 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)), the factually sufficient allegations in the complaint are taken as true.

On May 1, 1992, Robert and defendant Michael Hill (Michael) were students at Bremen High School and classmates in an automotive repair class. In accordance with school policy, some of the class members furnished their own automobiles for use in course instruction. Each of these students was responsible for bringing his or her automobile into the shop area at the beginning of class and removing it at the end of class. Only those students who furnished a vehicle for the class were permitted to leave the classroom.

On the day in question, three students, including Michael and Charles Yohfeld, provided their own cars for use in class. As class ended, the teacher told the students to clean-up the premises before repairing to his desk to fill out paperwork. Yohfeld, meanwhile, proceeded to drive his car from the shop area and return it to the school parking lot. Despite the fact that Robert was not permitted to leave the classroom at this time, he nevertheless hid in the back seat of Yohfeld's car. After reaching the parking lot, Robert walked back to the classroom.

As Robert returned, Michael was backing his car down the ramp adjacent to the classroom's overhead door. When Michael stopped at the bottom of the ramp to change gears, Robert jumped on the hood of the car "in such a manner that he was lying on his stomach across the hood, with his hands holding onto that portion of the hood closest to the front windshield *** with his feet extending across the hood diagonally toward the [passenger side] headlight." Michael immediatelyaccelerated and drove his car through the school parking lot at a high rate of speed. He then abruptly hit the brakes, causing Robert to be thrown from the hood of the car. When Robert fell, he struck his head on the pavement in front of the automobile and was rendered unconscious. Robert was taken to a local hospital where he died four days later as a result of the injuries sustained on May 1, 1992.

On May 2, 1994, plaintiff filed a six-count second amended complaint against Michael and the school district. In count III, plaintiff sought recovery from the school district for wrongful death under the theory of respondeat superior. Plaintiff claimed that the driver of the vehicle, Michael, acted as an agent of the school district because he was returning the vehicle to the school's parking lot at the request of his teacher.

In count V, plaintiff asserted that the school district was directly liable for its own wilful and wanton misconduct. Plaintiff maintained that the school district should have properly supervised the students and otherwise prevented "horseplay".

Finally, in count VI, plaintiff requested damages pursuant to the Family Expense Act. (750 ILCS 65/15 (West 1992).) Under this count, plaintiff, individually, repeated the allegations of wilful and wanton misconduct and sought reimbursement for medical expenses and funeral costs.

The school district thereafter moved to dismiss each of these counts on the grounds that plaintiff (i) failed to factually allege that Michael was an agent of the school district and (ii) failed to factually allege that the school district acted wilfully and wantonly. The ...


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