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December 27, 1995


Appeal from the Circuit Court of Cook County. Honorable Sidney A. Jones, III, Judge Presiding.

Presiding Justice Greiman delivered the opinion of the court: Cerda, J., concurs. Tully, J., dissents.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

On May 27, 1988, Nicole Pomaro (plaintiff) filed the instant action against Community Consolidated School District 21 (defendant) seeking damages for personal injuries sustained as a result of defendant's alleged wilful and wanton conduct in the maintenance of recreational property and inadequate supervision of a physical education class activity.

Defendant raised the defense of section 3-106 of the Local Government Tort Immunity Act which provides in relevant part that: "Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes ... unless such entity is guilty of willful and wanton conduct proximately causing such injury." (745 ILCS 10/3-106 (West 1993).) The trial court granted defendant's motion for summary judgment (735 ILCS 5/2-1005 (West 1993)) and, on de novo review, we affirm.

On April 21, 1980, plaintiff was enrolled in the fifth grade of Edgar Allen Poe School. On that day, plaintiff was participating in an outdoor physical education class under the supervision of physical education teacher Thomas Turner (Turner).

Turner instructed his fifth-grade class to run the 50-yard dash along yellow-painted lines designating lanes or running areas across the school's blacktop surface. The track was approximately 51 yards long and ended with a finish-line approximately four feet before the blacktop met a grass field. The intervening four feet contained some loose and broken sections of asphalt.

The plaintiff and another student lined up at the "starting-point" and commenced running at Turner's signal. As plaintiff and her competitor approached the finish-line, "a kindergarten student ... ran onto the blacktop from the playground into plaintiff's path" and "plaintiff changed her direction on the blacktop so as not to collide with the kindergarten student." As a result, plaintiff was unable to completely stop her momentum which carried her four feet beyond the finish-line and into the area of loose and broken asphalt. Plaintiff's foot lodged between two pieces of crumbled asphalt, causing her to fall, sustaining serious personal injuries.

The defendant's conduct in proximately causing an injury must be wilful and wanton if the liability is predicated upon the existence of a condition upon property used or intended to be used for recreational purposes. (Ill. Rev. Stat. 1979, ch. 85, par. 3-106, now codified at 745 ILCS 10/3-106 (West 1993).) It is clear that the site of the incident is "intended or permitted" to be used for recreational purposes. See Bubb v. Springfield School District 186, 167 Ill. 2d 372, 1995 Ill. LEXIS 193, 212 Ill. Dec. 542, 657 N.E.2d 887 (October 19, 1995), No. 77762 (young bicycle rider injured where sidewalk surrounding school was several inches higher than adjoining grassy area).

A plethora of recent cases have held that such situations do not support a finding of wilful and wanton conduct. This court affirmed a judgment notwithstanding the verdict where a baseball player was injured on a surveying stake while sliding into home plate ( Hernandez v. Chicago Park District (1995), 274 Ill. App. 3d 970, 654 N.E.2d 463, 211 Ill. Dec. 1), summary judgment entered against an outfielder who stepped into a rut chasing a fly ball ( Foley v. LaSalle (1993), 241 Ill. App. 3d 54, 608 N.E.2d 964, 181 Ill. Dec. 713), and summary judgment against a basketball player injured when he stepped into a trench around an outdoor basketball court ( Oropeza v. Board of Education (1992), 238 Ill. App. 3d 399, 606 N.E.2d 482, 179 Ill. Dec. 650). Similar results obtained in Ramos v. Waukegan Community Unit School District No. 60 (1989), 188 Ill. App. 3d 1031, 544 N.E.2d 1302, 136 Ill. Dec. 527, for injuries incurred while skipping rope on a broken sidewalk and where plaintiff was injured falling on broken glass during a touch football game on public recreational property ( Majewski v. Chicago Park District (1988), 177 Ill. App. 3d 337, 532 N.E.2d 409, 126 Ill. Dec. 724).

Plaintiff is unsuccessful in her attempt to distinguish these cases. Plaintiff does, however, suggest that the cutting edge of this case is the conduct of the supervising gym teacher in setting the venue of the 50 yard dash with a finish line close to the broken asphalt. However, section 3-108 provides: "neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property." (745 ILCS 10/3-108(a) (West 1993).) Hence, the same standard obtains for injuries caused by improper supervision as is appropriate for injuries sustained as a result of a dangerous condition. In Knapp v. Hill, 212 Ill. Dec. 723, 1995 Ill. App. LEXIS 820, 657 N.E.2d 1068 (1st Dist. November 3, 1995), Nos. 1-94-4376 and 1-94-4382, the appellate court affirmed the dismissal of a complaint alleging that a teacher in an automotive shop class had failed to adequately supervise high school students who engaged in horseplay that ended in the death of one of the students.

Wilful and wanton conduct means "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." (745 ILCS 10/1-210 (West 1993).) Prior to 1994, the supreme court defined wilful and wanton conduct as going beyond mere inadvertence to require a conscious choice of a course of action, either with knowledge of the serious danger to others or with knowledge of facts that would disclose this danger to a reasonable person. ( Burke v. Rothschild's Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 449, 593 N.E.2d 522, 170 Ill. Dec. 633.) Burke's definition adopted that contained in the Restatement (Second) of Torts, which observed a qualitative difference between negligence and wilful and wanton conduct in that wilful and wanton conduct carries a degree of opprobrium not found in merely negligent behavior. Burke, 148 Ill. 2d at 451.

Recently, the supreme court revisited the distinction, noted in Burke, between negligence and wilful and wanton conduct, recognizing that under "the facts of one case, willful and wanton misconduct may be only degrees more than ordinary negligence, while under the facts of another case, willful and wanton acts may be only degrees less than intentional wrongdoing." Ziarko v. Soo Line R.R. (1994), 161 Ill. 2d 267, 275-76, 641 N.E.2d 402, 204 Ill. Dec. 178.

This "sliding-scale" approach marks a departure from Burke's placement of wilful and wanton conduct at or near intentional wrongdoing, recognizing that, on a case by case basis, wilful and wanton conduct may lie anywhere between the parameters of intentional misconduct and mere negligence. Though this approach permits a finding of wilful and wanton conduct on lesser grounds than those stated in Burke, it by no means mandates such a finding, leaving the determination to the discretion of the court or jury. The supreme court found further that a "wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ...

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