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05/08/97 JOSHUA A. HENRICH v. LIBERTYVILLE HIGH

May 8, 1997

JOSHUA A. HENRICH, BY HIS MOTHER AND NEXT FRIEND, JUDITH HENRICH, PLAINTIFF-APPELLANT,
v.
LIBERTYVILLE HIGH SCHOOL, AND LIBERTYVILLE SCHOOL DISTRICT 128, DEFENDANTS-APPELLEES AND COUNTERDEFENDANTS-APPELLEES (JUSTIN BURG, DEFENDANT AND COUNTERPLAINTIFF-SEPARATE APPELLANT).



Appeal from the Circuit Court of Lake County. No. 95--L--1017. Honorable Stephen E. Walter, Judge, Presiding.

Rehearing Granted June 17, 1997. Released for Publication August 29, 1997.

The Honorable Justice Doyle delivered the opinion of the court. Geiger, P.j., and Rathje, J., concur.

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Plaintiff, Joshua A. Henrich, by his mother and next friend, Judith Henrich, filed a three-count complaint in the circuit court of Lake County seeking damages for personal injuries. Counts I and II of the complaint were directed against defendants Libertyville High School (the High School) and Libertyville High School District 128 (collectively, the District). Count I alleged willful and wanton misconduct. Count II alleged negligence. Count III was directed against defendant Justin Burg and alleged negligence. Burg subsequently filed a counterclaim for contribution against the District.

The circuit court granted the District's motion to dismiss counts I and II on the ground that the District was immune from liability under section 3--108 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3--108 (West 1994)). The court also dismissed Burg's counterclaim against the District.

Plaintiff appeals the dismissal of counts I and II of his complaint. Burg appeals the dismissal of his counterclaim. The issues raised on appeal are: (1) whether the trial court erred when it dismissed count I of plaintiff's complaint because section 24--24 of the School Code (105 ILCS 5/24--24 (West 1994)) governs this case instead of section 3--108 of the Tort Immunity Act, and under section 24--24 the District did not have immunity with respect to the alleged willful and wanton misconduct; and (2) whether the trial court erred when it dismissed Burg's counterclaim for contribution.

Plaintiff's complaint alleged the following. On February 14, 1994, plaintiff underwent spine fusion surgery for a low back medical condition. On September 2, 1994, the physician who performed the surgery on plaintiff wrote a letter advising plaintiff that he was permanently restricted from participating in contact sports "such as wrestling and football in gym class at school." On and before January 25, 1995, the District had received a copy of the doctor's letter and also had actual knowledge of plaintiff's medical condition and the permanent restrictions on his activities with respect to physical education classes.

Plaintiff's complaint further alleged the following. On February 2, 1995, plaintiff was a 17-year-old student at the High School. On that date, an agent or employee of the District required plaintiff to play and participate in a game of water basketball during a physical education class in the pool area of the High School. The District knew or should have known that water basketball involved physical contact between the players. Plaintiff was severely and permanently injured while participating in the water basketball game.

Count I of plaintiff's complaint asserted that the District required, allowed, or failed to prohibit plaintiff's participation in the water basketball game, knowing that the game involved physical contact and knowing of plaintiff's medical condition and/or the restrictions on his activities due to his medical condition. Count I further asserted that the District allowed Burg, a fellow student, to participate in the water basketball game knowing that Burg was a particularly rough player. Count I claimed that the District's acts constituted willful and wanton misconduct which proximately caused plaintiff's injuries.

Count II of plaintiff's complaint reiterated the alleged acts by the District set out in count I and added that the District assigned a noncertified or inadequately trained substitute teacher to the physical education class and failed to adequately supervise the class. Count II claimed that the District's acts constituted negligent conduct which proximately caused plaintiff's injuries.

The District responded to the complaint by filing a combined motion to dismiss the complaint pursuant to section 2--619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2--619.1 (West 1994)). One of the two parts of the District's combined motion was pursuant to section 2--619 of the Code (735 ILCS 5/2--619 (West 1994)). The section 2--619 part of the motion sought the dismissal of counts I and II of the complaint on the ground that the District was immune from liability under sections 3--108(a) and 3--109 of the Tort Immunity Act (745 ILCS 10/3--108(a), 3--109 (West 1994)).

The other part of the District's combined motion to dismiss the complaint was pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 1994)). The section 2--615 part of the motion sought the dismissal of count I of the complaint on the ground that count I failed to plead adequately that the District's conduct was willful and wanton.

Burg filed an answer to count III of the complaint. Burg later filed a counterclaim for contribution against the District.

The circuit court first partially disposed of the District's combined motion to dismiss the complaint by denying the section 2--615 part of the motion and continuing the section 2--619 part of the motion. The court next issued an order granting the District's motion to dismiss count II only. The court based its ruling on a ...


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