{
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  "name": "SANDY SWANIGAN, a Minor by and through his Mother and Next Friend, Shenia Swanigan, Plaintiff-Appellant, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee (Central Community Hospital, Defendant)",
  "name_abbreviation": "Swanigan v. Board of Education",
  "decision_date": "1988-08-09",
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    "judges": [],
    "parties": [
      "SANDY SWANIGAN, a Minor by and through his Mother and Next Friend, Shenia Swanigan, Plaintiff-Appellant, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee (Central Community Hospital, Defendant)."
    ],
    "opinions": [
      {
        "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nIn an action brought on behalf of a minor for personal injuries he suffered when a door closed on his fingers while he was in attendance at a school operated by defendant Chicago Board of Education (Board), the trial court judge granted summary judgment in favor of defendant and plaintiff appeals, arguing that the trial court erred in failing to determine whether plaintiff was competent to testify before considering his deposition testimony.\nOn April 7, 1983, plaintiff was a second-grade student at Henderson Public School in Chicago. In his discovery deposition, he testified that at the time of the accident he was leaving school for the day. Plaintiff\u2019s teacher, Ms. O\u2019Connor, testified in her deposition that she required the students to walk in single file lines, one for the boys and another for the girls, when leaving the school. Ms. O\u2019Connor first led the girls down the stairs to the ground floor, while the boys waited at the top of the stairwell. No student was assigned to hold open the door at the top of the stairs; whoever was standing by the door held it while the other students passed through. Plaintiff was standing at the back of the boys\u2019 line when the door, a double steel fire door with a self-closing device, began closing. He testified that the boy holding the door was having trouble, because his shoes \u201cwere slipping.\u201d Plaintiff stated that he had not noticed that his hand was in a place \u201cwhere it could get caught,\u201d but when the door closed it \u201csmashed on [his] hand.\u201d Ms. O\u2019Connor took plaintiff to the principal\u2019s office after the accident, and his parents later took him to Central Community Hospital. (Plaintiff also brought a claim against the hospital, but that claim is not involved in this appeal.)\nPlaintiff brought suit against the Board of Education, alleging that his injuries were caused by the Board\u2019s negligence in installing a heavy steel door, an alleged dangerous condition, on its property, and in failing to remedy the condition of the door despite prior incidents of injury The Board filed a motion for summary judgment, based on plaintiff\u2019s deposition testimony that, although he had used the door every day, he had never complained to his teacher that the door was too heavy, never observed any of his friends have any trouble opening the door, never heard any of them say they had trouble opening the door, and never knew or heard of any other child who had got his or her fingers or hand caught in the door before. In response to defendant\u2019s motion, plaintiff argued that Ms. O\u2019Connor\u2019s deposition testimony that \u201cit took some effort\u201d to open the door created a question of fact. After hearing argument from both parties, the trial judge ruled in favor of defendant, stating:\n\u201cThis ten-year old said he never saw any of his classmates have difficulty opening the door. He never had difficulty opening the door. The child that was holding the door opened the door and his shoes slipped. Unfortunately accidents happen. All injuries don\u2019t have a cause of action.\nThere\u2019s not a scintilla of evidence that there was any dangerous condition being maintained by the defendant Board of Education.\u201d\nPlaintiff appeals from this order.\nOpinion\nPlaintiff\u2019s sole contention on appeal is that a trial court is required to determine a child\u2019s competency to testify prior to considering his or her testimony (In re E.S. (1986), 145 Ill. App. 3d 906, 495 N.E.2d 1334; People v. Broughton (1976), 35 Ill. App. 3d 619, 342 N.E.2d 100; People v. Goble (1976), 41 Ill. App. 3d 491, 354 N.E.2d 108), and argues further that the trial judge erred in failing to make such a determination before ruling on defendant\u2019s summary judgment motion. In his reply to appellee\u2019s brief, plaintiff concedes that this argument was not made to the trial court, but argues that both this court and the circuit court have a duty to protect the rights of a minor and are \u201cbound to notice substantial irregularities even though objections are not properly presented on [the minor\u2019s] behalf.\u201d Muscarello v. Peterson (1960), 20 Ill. 2d 548, 555, 170 N.E.2d 564; see also Burton v. Estrada (1986), 149 Ill. App. 3d 965, 501 N.E.2d 254.\nDefendant maintains that plaintiff waived any objections he may have had to the competency of a witness to testify by failing to bring his objections to the attention of the trial court. (Bonczkowski v. Kucharski (1958), 13 Ill. 2d 443, 454-55, 150 N.E.2d 144 (\u201cIt is well established that objections to the *** competence of witnesses cannot be made for the first time in a court of review. *** [T]he admission of testimony without objection waives the incompetency of a witness\u201d); Carrao v. Board of Education (1977), 46 Ill. App. 3d 33, 41, 360 N.E.2d 536 (\u201cThe question of the competency of a child must be raised at the time of trial [citation], and a reviewing court should not consider the question of the competency where the record fails to reveal any motion to exclude the child\u2019s testimony during trial\u201d).) Defendants note that plaintiff never requested a hearing to determine his competency to testify, nor did he raise any objection to his competency or to the use of his deposition testimony.\nDefendants also argue that a reviewing court may review the child\u2019s testimony itself to determine whether it is the testimony of a competent witness. (In re E.S. (1986), 145 Ill. App. 3d 906, 495 N.E.2d 1334; Carrao v. Board of Education (1977), 46 Ill. App. 3d 33, 360 N.E.2d 536; Dallas v. Granite City Steel Co. (1965), 64 Ill. App. 2d 409, 211 N.E.2d 907.) In order to be competent to testify, a child must have a capacity for recollection, the ability to understand questions and frame intelligent answers, and an appreciation of the duty to speak the truth. (People v. Goble (1976), 41 Ill. App. 3d 491, 354 N.E.2d 108; Dallas v. Granite City Steel Co. (1965), 64 Ill. App. 2d 409, 211 N.E.2d 907.) In his deposition, plaintiff answered questions regarding his age, address, the name of his school and its address, and certain family information; he defined a lie as \u201ca story,\u201d and affirmed that his deposition testimony would be the truth. Plaintiff described the location of his classroom at the time of the accident, and his normal path to reach that room; he also remembered the approximate time of day that the accident occurred, and described the accident in detail.\nPlaintiff waived the issue by failing to raise it before the trial court. Nevertheless, were that issue to be considered on its merits, plaintiff\u2019s argument would fail since plaintiff\u2019s deposition reveals that he satisfactorily answered questions which typically would have been asked of him during the course of a competency hearing. Plaintiff has also waived any objections he may have had to the trial court\u2019s granting defendant\u2019s motion for summary judgment by failing to bring them before this court.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nHARTMAN, P.J., and EGAN, J., concur.",
        "type": "majority",
        "author": "JUSTICE SCARIANO"
      }
    ],
    "attorneys": [
      "Dombrowski & Sorensen, of Chicago, for appellant.",
      "Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy Jo Arnold, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "SANDY SWANIGAN, a Minor by and through his Mother and Next Friend, Shenia Swanigan, Plaintiff-Appellant, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee (Central Community Hospital, Defendant).\nFirst District (2nd Division)\nNo. 87\u20143089\nOpinion filed August 9, 1988.\nDombrowski & Sorensen, of Chicago, for appellant.\nKralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy Jo Arnold, of counsel), for appellee."
  },
  "file_name": "0784-01",
  "first_page_order": 806,
  "last_page_order": 809
}