{ "id": 5456712, "name": "FLORA TANARI, Appellant, v. SCHOOL DIRECTORS OF DISTRICT NO. 502, COUNTY OF BUREAU, Appellee", "name_abbreviation": "Tanari v. School Directors", "decision_date": "1977-11-30", "docket_number": "No. 49168", "first_page": "630", "last_page": "640", "citations": [ { "type": "official", "cite": "69 Ill. 2d 630" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "36 Ill. App. 3d 83", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2632409 ], "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0083-01" ] }, { "cite": "1 Ill. App. 3d 583", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5314159 ], "pin_cites": [ { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0583-01" ] }, { "cite": "5 Ill. App. 3d 1105", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2526237 ], "pin_cites": [ { "page": "1108" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/1105-01" ] }, { "cite": "29 Ill. App. 2d 269", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5221295 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/29/0269-01" ] }, { "cite": "103 Ill. App. 2d 12", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599832 ], "year": 1961, "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0012-01" ] }, { "cite": "332 Ill. App. 382", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5040375 ], "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/ill-app/332/0382-01" ] }, { "cite": "231 Ill. 276", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5634359 ], "opinion_index": 0, "case_paths": [ "/ill/231/0276-01" ] }, { "cite": "256 Ill. 110", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4711250 ], "opinion_index": 0, "case_paths": [ "/ill/256/0110-01" ] }, { "cite": "286 Ill. 547", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4936693 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/ill/286/0547-01" ] }, { "cite": "408 Ill. 343", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2643765 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/ill/408/0343-01" ] }, { "cite": "7 Ill. 2d 608", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2712058 ], "opinion_index": 0, "case_paths": [ "/ill-2d/7/0608-01" ] }, { "cite": "51 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5391133 ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0366-01" ] }, { "cite": "51 Ill. 2d 274", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392724 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-2d/51/0274-01" ] }, { "cite": "63 Ill. 2d 165", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5427298 ], "weight": 3, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0165-01" ] }, { "cite": "43 Ill. 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SCHOOL DIRECTORS OF DISTRICT NO. 502, COUNTY OF BUREAU, Appellee." ], "opinions": [ { "text": "MR. JUSTICE UNDERWOOD\ndelivered the opinion of the court:\nPlaintiff, Flora Tanari, brought an action in the circuit court of Bureau County against the defendant, School Directors of District No. 502, seeking damages for injuries she sustained when she allegedly was knocked to the ground by a group of children engaged in horseplay at a high school football game sponsored by defendant on its premises. The complaint alleged ordinary negligence on the part of defendant in failing to provide adequate supervision and control of children at the game. At the close of the evidence, the trial court granted the defendant\u2019s motion for a directed verdict on the ground that plaintiff was a licensee on defendant\u2019s premises; that defendant therefore only owed her the duty to refrain from wilful and wanton misconduct; and that breach of such duty had neither been alleged nor proved at trial. Plaintiff\u2019s motion to amend her complaint to add a wilful and wanton count was denied on the ground that the amendment would not conform with the proof. The appellate court affirmed (43 Ill. App. 3d 331), and we allowed plaintiff\u2019s petition for leave to appeal.\nPlaintiff, age 64, was employed as a bus driver by an individual who had a contract with the defendant school district to transport students to and from school. She had been so employed for 27 years and had attended all of the local high school football games for the last 25 years. On October 13, 1972, plaintiff attended the Hall Township High School homecoming football game with her daughter, son-in-law and grandchildren. The game was held on defendant\u2019s premises at a sports stadium under defendant\u2019s supervision and control. Plaintiff entered the stadium using a complimentary season pass issued by the defendant. As she was walking toward her seat, she noticed a crowd of boys and girls playing near the northwest end of the stadium, and the next thing she knew she had been knocked to the ground by a \u201cbig\u201d boy who fell on top of her. The boy, who was never identified, got up, apologized and hurried away. Plaintiff experienced immediate pain in her foot and subsequently received medical treatment for the injury, which was diagnosed as a fracture of the third, fourth and fifth metatarsals. As a consequence of the injury, she was unable to work for a period of six weeks, and at the time of the trial, over two years after the incident, she still suffered occasional pain and swelling in her right foot.\nPlaintiff\u2019s son-in-law testified that they had just entered the northwest stadium gate and were walking toward their seats through a grassy area behind the stands, when \u201cthere was a tremendous commotion between, it appeared to be kids milling around, jostling, pushing, and generally raising Cain. And she was knocked down by someone in this group and she hurt her foot and her ankle.\u201d On cross-examination, he testified that he did not know the boy who had knocked his mother-in-law to the ground, and did not know where he had come from.\nThe athletic director of Hall Township High School testified that he had hired off-duty policemen and teachers to keep order at all high school football games conducted by the defendant. He had been employed at the high school for approximately seven years preceding the date of the accident and had attended every home football game held at the school during that time. He responded in the affirmative when asked if he had seen boys and girls at almost every game \u201cplaying tag, or horseplaying and roughing it up\u201d in the area in question. However, when he was later asked if there was \u201crowdiness and horseplaying by these kids in that area,\u201d he responded that he did not know whether it should be called rowdiness and horseplay but the children were definitely there. He further testified that on previous occasions he had tried to \u201ccorrect\u201d the children but that, as soon as he left, they were back at it again. He knew from his personal observation that a policeman was in the area of the accident on the night in question.\nThe trial court allowed the defendant\u2019s motion for a directed verdict on the sole ground that plaintiff was a licensee on the defendant\u2019s premises and that there was no proof whatsoever that defendant had breached its duty to refrain from wilful and wanton misconduct. On appeal, the appellate court agreed with the trial court that a verdict should be directed in favor of the defendant but stated that it preferred that such ruling be based upon the immunity granted by the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 1 \u2014 101 et seq.) and section 24 \u2014 24 of the School Code (Ill. Rev. Stat. 1971, ch. 122, par. 24 \u2014 24) as construed by this court in Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165. Considering the state of the record before us, we are unable to concur with the appellate court\u2019s conclusions regarding defendant\u2019s immunity under the above-referred-to statutes and are likewise unable to agree with the court\u2019s further determination that \u201cirrespective of the standard of care which might have been required in this case, no verdict in favor of the plaintiff could stand as against the defendant school directors.\u201d 43 Ill. App. 3d 331, 334.\nThe Local Governmental and Governmental Employees Tort Immunity Act (hereafter referred to as the Tort Immunity Act) provides, inter alia, that \u201ca public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.\u201d (Ill. Rev. Stat. 1971, ch. 85, par. 2 \u2014 201.) Section 2 \u2014 109 of the Act also provides that \u201c[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.\u201d (Ill. Rev. Stat. 1971, ch. 85, par. 2-109.) However, it is provided in section 9 \u2014 103(b) of the Act (Ill. Rev. Stat. 1971, ch. 85, par. 9 \u2014 103(b)) that such immunity may be waived if a local public entity has secured liability insurance as provided in that section. (See Sullivan v. Midlothian Park District (1972), 51 Ill. 2d 274; Fanio v. John W. Breslin Co. (1972), 51 Ill. 2d 366.) The trial court did not pass upon the issue of immunity, since it was not pleaded by the defendant or otherwise asserted as a defense in the trial court but was raised for the first time in the appellate court. In our opinion, the record and briefs now before us totally fail to provide any basis for reaching a conclusive determination that the Tort Immunity Act afforded defendant immunity in this case. To the contrary, we note that on this appeal the defendant does not dispute the statement by plaintiff in her brief that the defendant carried liability insurance. As we have previously observed, the existence of such insurance may have waived defendant\u2019s immunity pursuant to section 9 \u2014 103(b) of the Act and may well explain why the defendant did not allege immunity as a defense in the trial court proceedings.\nAt the time of plaintiff\u2019s injury section 24 \u2014 24 of the School Code provided in pertinent part:\n\u201cTeachers and other certificated educational employees shall maintain discipline in the schools. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.\u201d (Ill. Rev. Stat. 1971, ch. 122, par. 24-24.)\nSince the foregoing statute specifically confers upon educators the status of parent or guardian to the students, and since a parent is not liable for injuries to his child absent wilful and wanton misconduct (Nudd v. Matsoukas (1956), 7 Ill. 2d 608), it therefore follows that the same standard applies as between educator and student. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165.) Kobylanski involved an action brought by a student against a school district for injuries sustained by the student in a gym class due to the alleged failure of a physical education teacher to provide proper supervision and instruction. We there held that section 24 \u2014 24 of the School Code was intended to confer in loco parentis status in nondisciplinary as well as disciplinary matters, and that the plaintiff student must therefore prove wilful and wanton misconduct on the part of the physical education teacher to recover for the injuries suffered in gym class. We further held that the immunity from ordinary negligence provided by section 24 \u2014 24 of the School Code is not waived under section 9 \u2014 103(b) of the Tort Immunity Act by the existence of liability insurance, since the waiver provisions of the latter section apply only to the defenses and immunities provided for in the Tort Immunity Act.\nIn our view, section 24 \u2014 24 of the School Code is not applicable here in view of the absence of any in loco parentis relationship between the injured plaintiff and the certificated employees of the defendant school district who allegedly failed to exercise proper supervision. As we stated in Kobylanski, section 24 \u2014 24 reflects \u201ca legislative determination that educators should stand in the place of a parent or guardian in matters relating to discipline, the conduct of the schools and the school children. It is this status as parent or guardian which requires a plaintiff to prove wilful and wanton misconduct in order to impose liability upon educators.\u201d (63 Ill. 2d 165, 174.) That status is clearly lacking here, and it seems evident that the purpose of the immunity which arises from such status would not be served by extending it to immunize school districts from liability to third parties for ordinary negligence in situations such as that now before us. We accordingly hold that section 24 \u2014 24 of the School Code does not provide any basis for affirmance of the trial court\u2019s decision in this case.\nIt is unnecessary to dwell at length on the common law distinctions between invitees and licensees which have evolved over the years. It suffices to observe that the general definition of an invitee is a visitor who comes upon premises at the invitation of the owner in connection with the owner\u2019s business or related activity. (E.g., Ellguth v. Blackstone Hotel, Inc. (1951), 408 Ill. 343; Milauskis v. Terminal R.R. Association (1919), 286 Ill. 547; Purtell v. Philadelphis & Reading Coal & Iron Co. (1912), 256 Ill. 110.) Licensees are persons who have not been invited to enter upon the owner\u2019s premises and who come there for their own purposes and not those of the owner. (Pauckner v. Wakem (1907), 231 Ill. 276.) However, their presence is condoned by the owner, which distinguishes them from trespassers. The trial court concluded in the case at bar that since the plaintiff had not purchased a ticket but rather had attended the football game using a complimentary season pass, there was an absence of \u201ccommercial benefit\u201d to the defendant school district, and she must therefore be considered a licensee. For the reasons hereafter stated, we must disagree with that conclusion.\nIn determining whether or not a person is an invitee or a licensee in a given situation, appellate courts in this State have often looked at the surrounding circumstances to determine whether, as between the visitor and the owner, there was a \u201cmutuality of interest in the subject to which the visitor\u2019s business relates\u201d (Jones v. 20 North Wacker Drive Building Corp. (1947), 332 Ill. App. 382, 385), \u201ca mutually beneficial interest\u201d (Augsburger v. Singer (1968), 103 Ill. App. 2d 12, 15; Drews v. Mason (1961), 29 Ill. App. 2d 269), a \u201cmutuality of interest\u201d (Olsen v. Chicago Dock & Canal Co. (1972), 5 Ill. App. 3d 1105, 1108), a \u201cmutuality of benefit or a benefit to the owner\u201d (Madrazo v. Michaels (1971), 1 Ill. App. 3d 583, 587), or whether the visitor had come to \u201ctransact business in which he and the owner have a mutual interest or to promote some real or fancied material, financial, or economic interest of the owner\u201d (Trout v. Bank of Belleville (1976), 36 Ill. App. 3d 83, 87). Such inquiries into the purpose and nature of the visit were deemed relevant, particularly in cases involving implied invitations, to ascertain whether the visitor was upon the owner\u2019s premises within the scope and purpose of the invitation or for some other reason.\nThat type of analysis is not necessary here. In our opinion, the complimentary pass issued to plaintiff was tantamount to an express invitation to attend Hall Township High School football games, and there can be no question about the fact that at the time of her injury, plaintiff was acting within the scope of that invitation. Unlike a person who comes upon an owner\u2019s premises for his own purposes rather than those of the owner and whose presence is merely condoned by the owner, plaintiff in this case was expressly invited and encouraged to come to the defendant\u2019s football stadium to swell the crowd in support of its team. In this type of situation, it would be entirely illogical to conclude that a person attending the game using a complimentary pass provided by the school district should be owed a lesser duty of care than a person otherwise similarly situated who had purchased a ticket. In our view, both persons should be owed the same duty of reasonable care, and we so hold.\nUpon application of a reasonable care standard to the case at bar, we cannot conclude that all of the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendant that no verdict for the plaintiff could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) The question of whether defendant failed to exercise reasonable care in supervising children attending the football game and whether such failure, if found to exist, was the proximate cause of plaintiff\u2019s injuries, should have been submitted to the jury.\nAccordingly, the judgments of the appellate court and trial court are reversed and the cause is remanded to the trial court for a new trial.\nReversed and remanded.", "type": "majority", "author": "MR. JUSTICE UNDERWOOD" }, { "text": "MR. JUSTICE GOLDENHERSH,\nspecially concurring:\nI agree that section 24 \u2014 24 of the School Code is not applicable to this case, and I concur in the holding that the judgments of the appellate and circuit courts must be reversed and the cause remanded. In its discussion of section 24 \u2014 24 the majority states, \u201cSince the foregoing statute specifically confers upon educators the status of parent or guardian to the students, and since a parent is not liable for injuries to his child absent wilful and wanton misconduct (Nudd v. Matsoukas (1956), 7 Ill. 2d 608), it therefore follows that the same standard applies as between educator and student. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165.)\u201d (69 Ill. 2d at 636.) In our dissent in Kobylanski, Mr. Chief Justice Ward, Mr. Justice Schaefer and I said: \u201cAlthough not made an issue in these appeals, we consider it appropriate to comment upon one additional matter. The majority, and apparently the parties, appear to accept as settled law \u2018that a parent is not liable for injuries to his child absent wilful and wanton misconduct. See Mroczynski v. McGrath, 34 Ill. 2d 451, 455; Nudd v. Matsoukas, 7 Ill. 2d 608, 619.\u2019 (63 Ill. 2d at 170.) On the contrary, this court has never decided that question. In Nudd, wilful and wanton misconduct was alleged (7 Ill. 2d at 610), and the language to which the majority opinion refers (7 Ill. 2d at 619) does not hold that parental immunity bars an action based on negligence. Mroczynski explains what was said in Nudd but does not decide the question.\u201d 63 Ill. 2d 165, 178-79.\nIf, as the majority states, the rule in this jurisdiction is that \u201ca parent is not liable for injuries to his child absent wilful and wanton misconduct\u201d it should rest on some ground more sound than the repetitive misreading of Nudd v. Matsoukas.", "type": "concurrence", "author": "MR. JUSTICE GOLDENHERSH," } ], "attorneys": [ "Louis E. Olivero, of Peru, for appellant.", "Berry & O\u2019Conor, of Ottawa, for appellee." ], "corrections": "", "head_matter": "(No. 49168. \u2014\nFLORA TANARI, Appellant, v. SCHOOL DIRECTORS OF DISTRICT NO. 502, COUNTY OF BUREAU, Appellee.\nOpinion filed November 30, 1977.\nLouis E. Olivero, of Peru, for appellant.\nBerry & O\u2019Conor, of Ottawa, for appellee." }, "file_name": "0630-01", "first_page_order": 642, "last_page_order": 652 }