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05/29/96 KACEY L. STIFF v. EASTERN ILLINOIS AREA

May 29, 1996

KACEY L. STIFF, BY HER MOTHER AND NEXT FRIEND, DEANA S. STIFF, AND HAROLD M. STIFF, PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,
v.
THE EASTERN ILLINOIS AREA OF SPECIAL EDUCATION, A VOLUNTARY UNINCORPORATED ASSOCIATION CONSISTING OF MATTOON COMMUNITY UNIT SCHOOL DISTRICT NO. 2, ALTAMONT COMMUNITY UNIT SCHOOL DISTRICT NO. 10, ARCOLA COMMUNITY UNIT SCHOOL DISTRICT NO. 306, ARTHUR COMMUNITY UNIT SCHOOL DISTRICT NO. 305, BEECHER CITY COMMUNITY UNIT SCHOOL DISTRICT NO. 20, BETHANY COMMUNITY UNIT SCHOOL DISTRICT NO. 301, CASEY-WESTFIELD COMMUNITY UNIT SCHOOL DISTRICT NO. C-4, CHARLESTON COMMUNITY UNIT SCHOOL DISTRICT NO. 1, EDGAR COUNTY COMMUNITY UNIT DISTRICT NO. 6, COWDEN-HERRICK COMMUNITY CONSOLIDATED DISTRICT NO. 11, COWDEN-HERRICK COMMUNITY CONSOLIDATED HIGH SCHOOL DISTRICT NO. 188, EDGAR COUNTY COMMUNITY UNIT SCHOOL DISTRICT NO. 4, CUMBERLAND COMMUNITY UNIT SCHOOL DISTRICT NO. 77, DIETERICH COMMUNITY UNIT SCHOOL DISTRICT NO. 30, EFFINGHAM COMMUNITY UNIT SCHOOL DISTRICT NO. 40, FINDLAY COMMUNITY UNIT SCHOOL DISTRICT NO. 2, KANSAS COMMUNITY UNIT SCHOOL DISTRICT NO. 3, LOVINGTON COMMUNITY UNIT SCHOOL DISTRICT NO. 303, MARSHALL COMMUNITY UNIT SCHOOL DISTRICT NO. C-2, MARTINSVILLE COMMUNITY SCHOOL DISTRICT NO. C-3, NEOGA COMMUNITY UNIT SCHOOL DISTRICT NO. 3, NEWMAN COMMUNITY UNIT SCHOOL DISTRICT NO. 303, OAKLAND COMMUNITY UNIT SCHOOL DISTRICT NO. 5, PARIS-UNION SCHOOL DISTRICT NO. 95, SHELBYVILLE COMMUNITY UNIT SCHOOL DISTRICT NO. 4, EDGAR COUNTY COMMUNITY UNIT SCHOOL DISTRICT NO. 2, STEWARDSON STRASBURG COMMUNITY UNIT SCHOOL DISTRICT NO. 5A, SULLIVAN COMMUNITY UNIT SCHOOL DISTRICT NO. 300, TEUTOPOLIS COMMUNITY UNIT SCHOOL DISTRICT NO. 50, TOWER HILL COMMUNITY CONSOLIDATED ELEMENTARY DISTRICT NO. 10, TOWER HILL COMMUNITY HIGH SCHOOL DISTRICT NO. 185, TUSCOLA COMMUNITY UNIT SCHOOL DISTRICT NO. 301, VILLA GROVE COMMUNITY UNIT SCHOOL DISTRICT NO. 302, AND WINDSOR COMMUNITY UNIT SCHOOL DISTRICT NO. 1; SHARON KAYLE GREWELL; AND JEFFREY N. REYNOLDS, DEFENDANTS-APPELLANTS, AND CROSS-APPELLEES, AND JOHN E. HELDMAN, PAMELA S. RICHARDSON, SUSAN SPRIND, AND JAMES A. BOSSERT, OTHER DEFENDANTS.



Appeal from Circuit Court of Coles County. No. 91L45. Honorable Paul C. Komada, Judge Presiding.

Justices: Honorable Robert J. Steigmann, J., Honorable Robert W. Cook, P.j., Honorable Rita B. Garman, J., Concurring, Justice Steigmann delivered the opinion of the court.

The opinion of the court was delivered by: Steigmann

The Honorable Justice STEIGMANN delivered the opinion of the court:

In July 1994, plaintiffs, Deana S. Stiff, as mother and next friend of Kacey L. Stiff, and Harold M. Stiff, filed an amended complaint against defendants Eastern Illinois Area of Special Education (EIASE), a special education organization consisting of several school units, and Sharon Kayle Grewell, Jeffrey N. Reynolds, John E. Heldman, Pamela S. Richardson, Susan Sprind, and James A. Bossert, teacher employees of EIASE, alleging that defendants' actions during a field trip where Kacey sustained a leg injury were negligent and constituted willful and wanton conduct. In February 1995, a jury trial was held. At the close of plaintiffs' evidence, the trial court granted a directed verdict as to the willful and wanton counts, and the jury subsequently found defendants liable in negligence.

Defendants appeal, arguing that (1) section 24-24 of the School Code (Code) granted them immunity from plaintiffs' negligence claims (Ill. Rev. Stat. 1989, ch. 122, par. 24-24); (2) sections 2-201 and 2-109 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) granted them immunity from plaintiffs' negligence claims (Ill. Rev. Stat. 1989, ch. 85, pars. 2-201, 2-109); (3) sections 2-202 and 2-109 of the Act granted them immunity from plaintiffs' negligence claims (Ill. Rev. Stat. 1989, ch. 85, pars. 2-202, 2-109); and (4) the trial court erred by denying defendants' motions for directed verdict and judgment n.o.v. Plaintiffs cross-appeal, arguing that the trial court erred by allowing defendants' motion for directed verdict as to the willful and wanton counts.

Because we agree with defendants' first argument and disagree with plaintiffs' argument, we affirm in part, reverse in part, and remand with instructions.

I. BACKGROUND

In May 1991, plaintiffs filed their initial complaint, alleging that defendants' failure to properly supervise the activities of the students was negligent and constituted willful and wanton conduct. In July 1991, defendants moved to dismiss all counts of that complaint. The trial court subsequently denied that motion, and defendants appealed. This court in Stiff v. Eastern Illinois Area of Special Education, 251 Ill. App. 3d 859, 621 N.E.2d 218, 190 Ill. Dec. 349 (1993), affirmed the trial court's denial of defendants' motion to dismiss and remanded the case to the trial court for a determination of the sufficiency of the pleadings on the issue of negligence in light of the supreme court's decision in Cates v. Cates, 156 Ill. 2d 76, 619 N.E.2d 715, 189 Ill. Dec. 14 (1993), which partially abrogated parental immunity.

Upon remand, plaintiffs filed an amended complaint, and defendants moved to dismiss all counts of that complaint. The trial court denied that motion, specifically finding that immunity pursuant to section 24-24 of the Code did not attach to defendants "because of the Appellate Court's decision [(Stiff)] in which they applied the Cates versus Cates decision *** to the circumstances of this case."

At the trial, the evidence showed the following. During 1989 through 1991 school years, Kacey, who is an epileptic, was enrolled in a special education program at the treatment and learning center, which operates under the auspices of EIASE. Sharon Grewell was Kacey's teacher and Jeffrey Reynolds was her adaptive physical education teacher.

Grewell, Reynolds, and Kacey's parents participated in several planning conferences, during which they chose programs designed to improve Kacey's balance and coordination. Through participation in various exercises, Kacey became capable of performing some maneuvers on playground equipment while her teachers stood close by, just outside of her arms' reach.

In October 1990, when Kacey was seven years old, defendants took Kacey and five other students on a field trip to a state park. While hiking on a trail, the group came upon a bridge which had a fallen tree lying across the handrails. The tree was between 2 1/2 to 3 feet from the floor of the bridge. Beyond the tree there was a step, which dropped down six to eight inches to the next level of the bridge.

Reynolds unsuccessfully attempted to lift or move the tree. James Bossert, Kacey's crisis interventionist, tried to help Reynolds, but their joint efforts were unsuccessful in moving the tree. The EIASE staff members present in the park--Reynolds, Bossert, John Heldman (a teacher's assistant), Pamela Richardson (a teacher's assistant), and Susan Sprind (a student teacher)--then conferred and decided it was safe to proceed under the tree to cross the bridge.

Reynolds and Bossert crossed the bridge first, and the four male students followed. A female student crossed next, followed by Grewell and Kacey. As Grewell approached the tree, Kacey was behind her. Grewell went under the tree and stepped forward. Kacey then went under the tree ...


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