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Brugger v. Joseph Academy

November 16, 2001

KELLY JEAN BRUGGER, AND DEBRA A. BRUGGER, PLAINTIFFS-APPELLANTS,
v.
JOSEPH ACADEMY, INC., A NOT-FOR-PROFIT ORGANIZATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 97 L 08723 Honorable Sophia H. Hall, Judge Presiding.

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

UNPUBLISHED

Plaintiffs, Kelly Jean Brugger and Debra A. Brugger, appeal an order of the circuit court granting summary judgment in favor of defendant, Joseph Academy, Inc., on plaintiffs' action for willful and wanton misconduct. On appeal, plaintiffs argue: (1) the trial court erred in finding that Joseph Academy was a "local public entity" entitled to complete immunity under sections 1-206 and 3-108(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-206, 3-108(a) (West 1996)); and (2) the trial court erred in granting summary judgment when the evidence raises a question of fact regarding Joseph Academy's willful and wanton misconduct. We reverse and remand.

In 1996 and 1997, Kelly Brugger (Brugger) was a student at Joseph Academy, a not-for-profit, private school serving "emotionally handicapped youth ages 10-18." On February 20, 1996, Brugger was treated by her family doctor, Dr. Katzovitz, for a continuing knee problem. Dr. Katzovitz gave Brugger a note stating that she should not participate in any sport involving side-to-side movement. Brugger presented the doctor's note to her gym teacher at the time, Mr. Logiurato, who allowed Brugger to perform "academic P.E." as an alternative to gym class. Michael Schack, the founder and executive director of Joseph Academy, clipped the doctor's note to Brugger's file.

On January 23, 1997, Brugger sat at a desk in the gymnasium performing academic P.E. instead of participating in the game of bombardment (also known as dodge ball). Brugger stated she was talking with Julia, another student sitting out the game, when their gym teacher Mr. Stanton (Stanton) told them to stop "goofing off" in class. Stanton told Brugger to play bombardment, indicating that if she refused, she would receive a failing grade for physical education and not graduate. She had already received a D in gym class in November 1996, for "poor participation due to injury." Brugger joined the game and subsequently injured her knee while attempting to dodge a ball thrown at her.

Stanton stated he never knew of Dr. Katzovitz's note prohibiting Brugger from participating in activities involving side-to-side movement and that if he had seen such a note, he never would have allowed her to play without another doctor's note clearing her for such games. Further, Stanton stated that he never told Brugger she would not graduate if she sat out the game.

Anthony Payne, a teacher's aide and activities facilitator, was supervising bombardment on January 23, 1997. He was aware of Dr. Katzovitz's note through Mr. Logiurato and knew that Brugger should not participate in sports involving side-to-side movement. As a result, he never forced her to play the game. After bombardment had already started, Payne observed Brugger walk from the academic P.E. area to join the game. He did not know why she decided to participate. Payne saw Brugger fall as she bent over to pick up the ball.

The trial court granted Joseph Academy's motion for summary judgment on the grounds that Joseph Academy was, a "local public entity" entitled to supervisory immunity for negligence and willful and wanton misconduct under sections 1-206 and 3-108(a) of the Tort Immunity Act. Brugger filed this timely appeal.

Brugger first argues that the trial court erred in finding that Joseph Academy, a private school, was protected from liability under the Tort Immunity Act. Joseph Academy claims that Brugger waived review of this issue by failing to raise it in the trial court. Review of the record indicates that Brugger raised the argument in the trial court that the Tort Immunity Act did not immunize Joseph Academy from liability. Further, a reviewing court may consider an issue where, as here, the issue is one of law and is fully briefed and argued by the parties. People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 27 (1991); Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 518-19 (2000). Therefore, we will consider plaintiffs' argument. The interpretation of the Tort Immunity Act is subject to de novo review. Barnett v. Zion Park District, 171 Ill. 2d 378, 385 (1996).

At the time of Brugger's injury, section 3-108(a) of the Tort Immunity Act stated:

"(a) Except as otherwise provided by this Act *** 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." (Emphasis added.) 745 ILCS 10/3-108(a) (West 1996).

Section 1-206 of the Tort Immunity Act expressly includes a school district as a"local public entity." See 745 ILCS 10/1-206 (West 1996). However, the Illinois Supreme Court has made a distinction between public school districts and private schools. Cooney v. Society of Mt. Carmel, 75 Ill. 2d 430 (1979).

In Cooney, the plaintiff, a private school student who was injured in physical education class, brought suit against the school and his physical education instructors. Count I alleged negligence while count II alleged willful and wanton misconduct. Cooney, 75 Ill. 2d at 432. Defendant moved to dismiss count II based on the argument that the Tort Immunity Act applied to private schools and that plaintiff had failed to serve the school with a presuit notice of injury as required by that Act. Cooney, 75 Ill. 2d at 432. The trial court granted the motion to dismiss count II. Cooney, 75 Ill. 2d at 432. On appeal, the supreme court held that the legislature did not intend for the Tort Immunity Act to apply to private schools. The supreme court reasoned that section 1-206 of the Tort Immunity Act did not expressly include private schools and that "[w]hile private schools serve the public good by educating children, the performance of that beneficial function does not transform such schools from private into public entities." Cooney, 75 Ill. 2d at 432-34.

Joseph Academy argues that subsequent to Cooney, the legislature amended the definition of "local public entity" in section 1-206 of the Tort Immunity Act to include "any not-for-profit corporation organized for the purpose of conducting public business." 745 ILCS 10/1-206 (West 1996). Joseph Academy argues that the amended definition effectively erased ...


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