{ "id": 2690831, "name": "LARA BERTETTO, A Minor, by and through her Parents and Next Friends, Randy Bertetto, et al., Plaintiff-Appellant, v. SPARTA COMMUNITY UNIT DISTRICT NO. 140, Defendant-Appellee and Counterdefendant-Appellee (The City of Sparta, Defendant and Counterplaintiff-Appellant)", "name_abbreviation": "Bertetto v. Sparta Community Unit District No. 140", "decision_date": "1989-09-27", "docket_number": "No. 5-88-0323", "first_page": "954", "last_page": "960", "citations": [ { "type": "official", "cite": "188 Ill. App. 3d 954" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "462 N.E.2d 877", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "880" } ], "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 19", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5676285 ], "weight": 2, "pin_cites": [ { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0019-01" ] }, { "cite": "412 N.E.2d 447", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "pin_cites": [ { "page": "459" } ], "opinion_index": 0 }, { "cite": "82 Ill. 2d 415", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5475820 ], "weight": 5, "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0415-01" ] }, { "cite": "373 N.E.2d 1323", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "1326" } ], "opinion_index": 0 }, { "cite": "71 Ill. 2d 47", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5449385 ], "year": 1980, "pin_cites": [ { "page": "52-53" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0047-01" ] }, { "cite": "347 N.E.2d 705", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "709" } ], "opinion_index": 0 }, { "cite": "63 Ill. 2d 165", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5427298 ], "year": 1978, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0165-01" ] }, { "cite": "529 N.E.2d 784", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "789" } ], "opinion_index": 0 }, { "cite": "175 Ill. App. 3d 203", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3555185 ], "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0203-01" ] }, { "cite": "529 N.E.2d 642", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "643" } ], "opinion_index": 0 }, { "cite": "174 Ill. App. 3d 1086", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514591 ], "year": 1988, "pin_cites": [ { "page": "1087" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/1086-01" ] } ], "analysis": { "cardinality": 632, "char_count": 14552, "ocr_confidence": 0.769, "pagerank": { "raw": 7.918488320489868e-08, "percentile": 0.46150586385538306 }, "sha256": "92e8134e590c11a7e935797966667c48dfceb544d0b49e4c8c6eed4e43660c38", "simhash": "1:79dbd0d70e9d0a8e", "word_count": 2351 }, "last_updated": "2023-07-14T17:36:06.130198+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LARA BERTETTO, A Minor, by and through her Parents and Next Friends, Randy Bertetto, et al., Plaintiff-Appellant, v. SPARTA COMMUNITY UNIT DISTRICT NO. 140, Defendant-Appellee and Counterdefendant-Appellee (The City of Sparta, Defendant and Counterplaintiff-Appellant)." ], "opinions": [ { "text": "JUSTICE HARRISON\ndelivered the opinion of the court:\nPlaintiff, Lara Bertetto, and defendant-counterplaintiff, City of Sparta (the City), appeal from an order of the circuit court of Randolph County which dismissed with prejudice counts I and II of plaintiff\u2019s amended complaint and the City\u2019s second amended counterclaim for contribution. The circuit court entered its order pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 615) on the grounds that these pleadings failed to state a claim upon which relief could be granted. For the reasons which follow, we find that plaintiff\u2019s amended complaint did sufficiently allege claims for negligence and wilful and wanton misconduct and that the City\u2019s counterclaim likewise sufficiently stated a cause of action for wilful and wanton misconduct. We therefore reverse and remand for further proceedings.\nIn ruling on a motion to dismiss, a court must accept as true all well-pleaded facts in the pleading attacked, as well as all reasonable inferences which can be drawn from those facts that are favorable to the pleader. (Burks v. Matrix Vision of Wilmette, Inc. (1988), 174 Ill. App. 3d 1086, 1087, 529 N.E.2d 642, 643.) A cause should not be dismissed on the grounds that the pleadings fail to state a cause of action unless, clearly, no set of facts could be proven under the pleadings which would entitle the plaintiff to relief. Northrop Corp. v. Crouch-Walker, Inc. (1988), 175 Ill. App. 3d 203, 212, 529 N.E.2d 784, 789.\nThe pleadings at issue here alleged that plaintiff suffers from a medical condition diagnosed as spinal muscle atrophy with scoliosis and that she is confined to a wheelchair. She was a student at the Sparta-Lincoln Attendance Center at 200 North St. Louis Street, Sparta, Illinois, which was owned and operated by the defendant Sparta Community Unit District No. 140 (the School District). On the other side of North St. Louis Street from the center was a playground which the School District also controlled and maintained.\nThe pleadings further alleged that on September 8, 1986, the School District transported plaintiff from the center to the playground in her wheelchair. That wheelchair had been entrusted to the District by plaintiff\u2019s parents. Although plaintiff\u2019s parents had advised the School District that plaintiff had to be secured in the wheelchair by her seat belt whenever she was moved, plaintiff\u2019s seat belt was not fastened on this occasion. One of plaintiff\u2019s classmates was allowed to push plaintiff along in the wheelchair, and as this was being done, the wheels of the wheelchair hit a \u201ccrevice,\u201d \u201cthereby throwing the plaintiff with force and violence upon the pavement.\u201d As a result of this accident, plaintiff suffered numerous injuries, including a fractured right femur, bruises, contusions of the body and internal injuries.\nIn 1988, plaintiff, by her parents and next friends, filed a complaint in the circuit court of Randolph County to recover damages for the personal injuries she sustained in the September 8, 1986, accident. Plaintiff\u2019s complaint, as amended, was in three counts. Counts I and II were directed against the School District. Count I alleged negligence, and count II was premised on wilful and wanton misconduct. Count III was directed against the City of Sparta and alleged that the City had been negligent in failing to keep the walkway between the center and the playground in a reasonably safe condition for pedestrians and students; that it had permitted a \u201ccrevice\u201d to \u201cbe and remain upon said walkway, thereby creating a dangerous condition\u201d; and that it failed to repair the \u201ccrevice\u201d in the walkway.\nThe City, in turn, filed a counterclaim against the School District for contribution. In its second amended counterclaim, the pleading at issue here, the City argued that it was entitled to contribution from the School District because the District was guilty of wilful and wanton misconduct.\nThe School District filed a motion pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2\u2014 615) to dismiss counts I and II of plaintiff\u2019s amended complaint and the City\u2019s second amended counterclaim for contribution on the grounds that those pleadings failed to state a claim upon which relief could be granted. Following a hearing, the School District\u2019s motion was granted, and counts I and II of the amended complaint and the second amended counterclaim for contribution were dismissed with prejudice. At the same time, the circuit court made an express written finding that there was no just reason for delaying an appeal. (Rule 304(a), Official Reports Advance Sheet No. 23 (eff. Jan. 1, 1989), 134 Ill. 2d R. 304(a).) Plaintiff and the City have each now appealed.\nThere is no dispute that the circuit court dismissed count I of plaintiff\u2019s amended complaint, which sought recovery from the School District based on negligence, only because the court believed that the District was immune from suit. We agree with plaintiff that this was error.\nUnder section 24 \u2014 24 of the School Code, teachers stand in the relation of parents and guardians to pupils. (Ill. Rev. Stat. 1987, ch. 122, par. 24 \u2014 24.) Teachers are therefore granted immunity from suits for negligence arising out of \u201cmatters relating to the discipline in and conduct of the schools and the school children.\u201d (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 173, 347 N.E.2d 705, 709.) In Gerrity v. Beatty (1978), 71 Ill. 2d 47, 52-53, 373 N.E.2d 1323, 1326, however, our supreme court found that a school board may be subject to liability for negligence arising out of the furnishing of equipment for students. Two years later, in Lynch v. Board of Education (1980), 82 Ill. 2d 415, 434, 412 N.E.2d 447, 459, the court expressly held that \u201ca school district has an affirmative duty, where students are engaging in school activities, whether they are extracurricular, or formally authorized as part of the school program, to furnish equipment to prevent serious injuries.\u201d\nCount I of plaintiff\u2019s amended complaint in this case alleged negligence based on the breach of just such a duty. Specifically, it alleged that when plaintiff was being transported from the center to the playground, and was thus engaged in a \u201cschool activity,\u201d the School District,\n\u201cthrough its agents and servants acting in its behalf, owed the duty of excercising due care and caution in providing, operating and utilizing adequate equipment, namely, the entrusted wheelchair and attached seat belt.\u201d\nCount I further alleged that the District breached this duty when it\n\u201c[cjarelessly and negligently failed to provide, operate and utilize adequate equipment, namely, the entrusted wheelchair and seat belt, which would have prevented LARA BERTETTO from being thrown from the wheelchair at times and place pertinent hereto.\u201d\nWe believe that these allegations are sufficient to bring count I within the rule set forth in Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447, and that the circuit court therefore erred in dismissing count I for failure to state a cause of action.\nThe School District attempts to resist this conclusion by arguing that because the equipment alleged to be inadequate here, the wheelchair and seat belt, was supplied to the School District by plaintiff\u2019s parents, the District cannot be held liable. This argument must fail. The affirmative duty to furnish adequate equipment as set forth in Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447, belongs to the School District, not the parents. Accordingly, if the equipment supplied by parents is not adequate for a particular activity, we believe that the District must provide alternate equipment which is adequate. Unless the activity is one which is required to be provided pursuant to some other provision of the law, the District may, of course, also choose not to allow the student to participate in the activity. But in any case, the School District may not evade its duty by attempting to shift responsibility for providing adequate equipment to the parents of the children in its charge. To hold otherwise would reduce the Lynch rule to a nullity.\nThe School District also attempts to avoid application of the duty recognized in Lynch (82 Ill. 2d 415, 412 N.E.2d 447), by arguing that count I of plaintiff\u2019s amended complaint does not really allege that the equipment involved was defective at all. The District reads count I as alleging not that plaintiff was hurt because of any defect in the wheelchair or seat belt, but that she was injured simply because the seat belt in the wheelchair was not being used at the time of the accident. In the School District\u2019s view, this is tantamount to a claim of improper supervision, which would not be actionable.\nThe problem with this argument is that it ignores the express language of the complaint. As the text of count I quoted above indicates, plaintiff alleged not only that the School District had carelessly and negligently failed to utilize the wheelchair and seat belt, but also that it had carelessly and negligently \u201cfailed to provide *** adequate equipment,\u201d namely the wheelchair and seat belt. While it may turn out, following a trial on the merits, that the wheelchair and seat belt themselves were adequate and that the only problem was with the failure to properly secure plaintiff in the wheelchair with her seat belt, we have not yet reached that stage of the proceedings. At this point we are concerned only with the sufficiency of the pleadings, and count I of those pleadings is sufficient to state a cause of action against the School District under Lynch (82 Ill. 2d 415, 412 N.E.2d 447). The dismissal of that count therefore constituted reversible error.\nWe likewise believe that the circuit court erred in dismissing count II of plaintiff\u2019s amended complaint, which alleged that the School District should be held liable based on wilful and wanton misconduct. In Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 22, 462 N.E.2d 877, 880, this court reiterated the rule that\n\u201c[a] wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by *** ordinary care.\u201d\nParagraph 2 of count II here alleged that plaintiff had a medical condition diagnosed as spinal muscle atrophy with scoliosis, that she was confined to a wheelchair, and that the School District knew of her condition. Paragraph 3 alleged that plaintiff\u2019s parents had told the District that when plaintiff was transported in her wheelchair the \u201cseat belt provided therein must be fastened.\u201d Paragraph 4 alleged that one of plaintiff\u2019s classmates was permitted to push her wheelchair from the center to the playground across the street, and paragraph 5 alleged, inter alia, that the District allowed plaintiff to be moved from the school to the playground \u201cwithout causing her to be secured *** in the wheelchair with the seat belt when it had knowledge, or through reckless and wanton conduct, failed to acquire knowledge that [plaintiff] was not secured with the seat belt.\u201d Count II further alleged that while plaintiff was being transported between the center and the playground, the wheels of her wheelchair struck a \u201ccrevice\u201d in the surface of the passageway between those two locations \u201cthereby throwing [her] with force and violence upon the pavement,\u201d and that the School District allowed plaintiff\u2019s wheelchair to pass over this \u201ccrevice\u201d when it had knowledge, or through reckless and wanton conduct, failed to acquire knowledge as to the dangerous condition which that \u201ccrevice\u201d presented. We believe that these allegations, if true, would establish such a \u201creckless disregard for the safety of others\u201d as to constitute wilful and wanton misconduct within the meaning of Hadley (123 Ill. App. 3d 19, 462 N.E.2d 877).\nWe turn then to the propriety of the circuit court\u2019s order dismissing the City\u2019s second amended counterclaim for contribution. That amended counterclaim, like count II of plaintiff\u2019s amended complaint, is based on wilful and wanton misconduct, and the facts alleged in support of that claim are essentially the same as those contained in count II of plaintiff\u2019s amended complaint. The only difference in the substance of the pleadings is that the amended counterclaim does not make mention of the School District\u2019s failure to acquire knowledge as to the dangerous condition presented by the \u201ccrevice\u201d in the passageway between the center and the playground. Instead, it focuses exclusively on the District\u2019s having allowed plaintiff to be pushed in her wheelchair from the center to the nearby playground by one of plaintiff\u2019s fellow students, a child of tender years, without having her seat belt fastened, even though the District knew of plaintiff\u2019s medical condition and that she was supposed to have her seat belt fastened whenever she was transported in her wheelchair. As with count II of plaintiff\u2019s amended complaint, we believe that these allegations sufficiently allege a cause of action for wilful and wanton misconduct. The circuit court therefore likewise erred in dismissing the City\u2019s second amended counterclaim.\nFor the foregoing reasons, the judgment of the circuit court of Randolph County dismissing with prejudice counts I and II of plaintiff\u2019s amended complaint and the City\u2019s second amended counterclaim is reversed, and this cause is remanded to the circuit court for further proceedings not inconsistent with the views expressed in this opinion.\nReversed and remanded.\nRARICK and GOLDENHERSH, JJ., concur.", "type": "majority", "author": "JUSTICE HARRISON" } ], "attorneys": [ "Jack A. Strellis, of Strellis, Faulbaum & Field, of Waterloo, for appellant Lara Bertetto.", "Coppinger, Carter, Schrempf & Blaine, Ltd., of Alton, for appellant City of Sparta.", "Stephen C. Buser, of Freeark, Harvey, Mendillo & Dennis, of Belleville, for appellee." ], "corrections": "", "head_matter": "LARA BERTETTO, A Minor, by and through her Parents and Next Friends, Randy Bertetto, et al., Plaintiff-Appellant, v. SPARTA COMMUNITY UNIT DISTRICT NO. 140, Defendant-Appellee and Counterdefendant-Appellee (The City of Sparta, Defendant and Counterplaintiff-Appellant).\nFifth District\nNo. 5 \u2014 88\u20140323\nOpinion filed September 27, 1989.\nRehearing denied November 1, 1989.\nJack A. Strellis, of Strellis, Faulbaum & Field, of Waterloo, for appellant Lara Bertetto.\nCoppinger, Carter, Schrempf & Blaine, Ltd., of Alton, for appellant City of Sparta.\nStephen C. Buser, of Freeark, Harvey, Mendillo & Dennis, of Belleville, for appellee." }, "file_name": "0954-01", "first_page_order": 976, "last_page_order": 982 }