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Catberro v. Naperville School Dist.

November 02, 2000


Appeal from the Circuit Court of Du Page County. No. 98--L--1002 Honorable C. Stanley Austin, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

Plaintiff, Don Catberro, individually and as the father and next friend of Bryan Catberro, appeals the circuit court's order dismissing his complaint against defendant, Naperville School District No. 203. Plaintiff contends that the court erred in (1) recasting his complaint from one alleging the negligent maintenance of property to one alleging the negligent supply of equipment; (2) holding that a physical education teacher's purchase of equipment for use in class was immunized as an exercise of discretionary authority; and (3) holding that the teacher was included in the class of persons protected by discretionary immunity under the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/1-101 et seq. (West 1998)).

The complaint alleges that Bryan Catberro was a fourth-grader at Riverwoods School. During physical education class on May 5, 1998, Bryan tripped and fell while jumping over a rope strung between two poles. One of the poles tipped over and struck Bryan, cutting his face.

Plaintiff alleged that the gym teacher had bought the poles at a garage sale. The teacher did not hold a policy-making position in the school district. On May 5, 1998, the poles were in a state of disrepair. They had no caps, thereby exposing rough edges. When he was injured, Bryan was jumping over the rope as the teacher had instructed him. Bryan sustained permanent injuries to his face as a result of the incident.

Plaintiff filed a two-count complaint against the district, which moved to dismiss it. The district asserted that it was immune from liability under the Act. The trial court granted the motion, holding that the district could not be liable for negligently providing equipment and that the decision to purchase the poles was a discretionary one for which defendant was also immunized. Plaintiff filed a timely notice of appeal.

Plaintiff first contends that the court erred by recasting his complaint. Plaintiff argues that count I alleges that the district negligently maintained its property. According to plaintiff, the court interpreted count I as alleging that the district negligently provided faulty equipment and dismissed the complaint on that basis. Defendant responds that the complaint does not allege negligent maintenance and that it is plaintiff who is trying to recast his complaint.

Defendant moved to dismiss pursuant to section 2--619 of the Code of Civil Procedure (735 ILCS 5/2--619 (West 1998)). Section 2--619 provides a means to obtain summary disposition of issues of law or easily proved issues of fact. A section 2--619 motion admits the legal sufficiency of the cause of action. An appeal from such a dismissal is reviewed de novo. Klein v. DeVries, 309 Ill. App. 3d 271, 273 (1999).

The Act governs whether and in what situations local governmental units are immune from civil liability. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 375 (1997). In construing the Act, our primary goal is to ascertain and give effect to the legislature's intention. Barnett v. Zion Park District, 171 Ill. 2d 378, 388 (1996). We will not depart from the plain language of the Act by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent. Barnett, 171 Ill. 2d at 389.

We agree with plaintiff that the complaint contains allegations, which the trial court disregarded, that the district negligently maintained its property. Paragraph 9 of the second amended complaint, the operative one here, alleged that defendant was negligent in that it:

"a. Failed to properly inspect its poles and rope for safety;

b. Failed to ensure that the poles were properly capped;

c. Failed to replace the cap on the poles on which minor plaintiff was injured thus exposing minor plaintiff to danger of sharp edges;

d. Allowed the condition of the pole to deteriorate thus exposing minor plaintiff to sharp edges;

e. Instructed plaintiff to jump over equipment it knew or should have known was ...

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