{ "id": 2468544, "name": "MEGHAN GARA, a Minor, by her Mother and Next Friend, Judith B. Gara, et al., Plaintiffs-Appellants, v. CHRIS LOMONACO et al., Defendants-Appellees", "name_abbreviation": "Gara v. Lomonaco", "decision_date": "1990-05-25", "docket_number": "No. 1\u201488\u20143536", "first_page": "633", "last_page": "641", "citations": [ { "type": "official", "cite": "199 Ill. App. 3d 633" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "395 N.E.2d 538", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "77 Ill. 2d 165", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490683 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/77/0165-01" ] }, { "cite": "373 N.E.2d 1323", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1324" }, { "page": "1326" } ], "opinion_index": 0 }, { "cite": "71 Ill. 2d 47", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5449385 ], "weight": 3, "pin_cites": [ { "page": "49" }, { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0047-01" ] }, { "cite": "462 N.E.2d 877", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "881" } ], "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 19", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5676285 ], "weight": 2, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0019-01" ] }, { "cite": "484 N.E.2d 371", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "137 Ill. App. 3d 238", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3639350 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/0238-01" ] }, { "cite": "501 N.E.2d 995", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "150 Ill. App. 3d 288", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3502823 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0288-01" ] }, { "cite": "415 N.E.2d 1015", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1018" } ], "opinion_index": 0 }, { "cite": "83 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5473261 ], "weight": 2, "pin_cites": [ { "page": "467-68" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0462-01" ] }, { "cite": "347 N.E.2d 705", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "63 Ill. 2d 165", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5427298 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/63/0165-01" ] }, { "cite": "544 N.E.2d 733", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "743" } ], "opinion_index": 0 }, { "cite": "129 Ill. 2d 497", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567341 ], "weight": 2, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0497-01" ] }, { "cite": "508 N.E.2d 298", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "299" } ], "opinion_index": 0 }, { "cite": "155 Ill. App. 3d 705", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3464767 ], "weight": 3, "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/155/0705-01" ] } ], "analysis": { "cardinality": 678, "char_count": 17698, "ocr_confidence": 0.77, "pagerank": { "raw": 7.769743785489608e-08, "percentile": 0.4562466769298133 }, "sha256": "2945e35c1c8d935cd4cdbc4da30946ed2da3d572aac71cd490e0e648ce1655b1", "simhash": "1:b22bc190a8e7fe1a", "word_count": 2844 }, "last_updated": "2023-07-14T15:10:12.040900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MEGHAN GARA, a Minor, by her Mother and Next Friend, Judith B. Gara, et al., Plaintiffs-Appellants, v. CHRIS LOMONACO et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nPlaintiffs appeal from the dismissal of their complaint for failure to state a cause of action under section 2\u2014615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2\u2014615). We address the issue of whether plaintiffs\u2019 complaint states a cause of action for negligence and wilful and wanton misconduct against teachers and the school district. We affirm.\nPlaintiffs, Meghan Gara, a minor, and her mother, Judith Gara, filed a six-count complaint against defendants Chris Lomonaco, M. Schave, and S. Reeves, who were teachers at Meghan\u2019s school, and against School District No. 54. Plaintiffs alleged that on January 24, 1986, Meghan was injured while jazz dancing on wrestling mats in physical education class. The mats were placed on the floor end to end but were not taped down. During the dance, Meghan caught her foot between two mats that overlapped and she fell. She asked defendant Lomonaco, her physical education teacher, for permission to see the school nurse but Lomonaco \u201crefused.\u201d In her next two classes, Meghan requested permission from the teachers, defendants Schave and Reeves, to see the nurse. Both teachers also \u201crefused\u201d her request. Subsequently, plaintiffs learned Meghan\u2019s ankle was fractured.\nIn count I plaintiffs alleged that defendants Lomonaco, Schave, Reeves, and School District No. 54 were negligent for refusing to allow Meghan permission to see the nurse, failing to examine Meghan to determine whether she needed medical attention, and failing to inform Meghan\u2019s parents that she had been injured so that they could seek medical care. Plaintiffs alleged that as a proximate cause of defendants\u2019 negligence, Meghan suffered an \u201cexacerbation\u201d of her injury, additional pain and suffering, and suffered a permanent injury.\nIn count II plaintiffs alleged that defendants Lomonaco and School District No. 54 were liable for wilful and wanton misconduct because defendants knew or should have known that wrestling mats which were not taped down would create a dangerous condition, failed to stop the jazz dancing when the mats overlapped, and \u201crecklessly failed to discover\u201d the dangerous condition of the overlapped mats. As a proximate cause of defendants\u2019 wilful and wanton misconduct, Meghan fractured her ankle.\nIn count III plaintiffs alleged that defendant School District No. 54 was negligent in failing to provide \u201cappropriate\u201d mats for jazz dancing and failed to properly use the wrestling mats by not taping the ends together. As a proximate cause of defendant\u2019s negligence, Meghan fractured her ankle.\nCounts IV, V, and VI were identical to counts I, II, and III, respectively, but sought recovery for expenses under section 15 of \u201cAn Act to revise the law in relation to husband and wife\u201d (Ill. Rev. Stat. 1985, ch. 40, par. 1015).\n\u2022 Defendants filed an appearance and moved to dismiss plaintiffs\u2019 complaint under section 2\u2014615 (Ill. Rev. Stat. 1987, ch. 110, par. 2\u2014615) for failure to state a cause of action. The trial court granted the motion to dismiss, and plaintiffs filed a timely notice of appeal.\nOpinion\nIn ruling on a motion to dismiss, the court must accept as true all well-pled facts and reasonable inferences from plaintiff\u2019s complaint. (Ausmus v. Board of Education (1987), 155 Ill. App. 3d 705, 508 N.E.2d 298.) Plaintiff\u2019s complaint must allege sufficient facts to support a cause of action. (Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, 544 N.E.2d 733.) The allegations must be viewed in a light most favorable to the plaintiff, and the action should not be dismissed unless it appears \u201cthat no set of facts can be proved which would entitle the plaintiff to relief.\u201d Ausmus, 155 Ill. App. 3d at 707, 508 N.E.2d at 299.\nI\nCounts I and IV of plaintiffs\u2019 complaint were directed against Meghan\u2019s teachers and the school district. Plaintiffs alleged that defendants were negligent when they refused to give Meghan permission to see the nurse, failed to examine her to determine whether she needed medical attention, and failed to inform her parents that she had been injured.\nRelevant to this issue is section 24 \u2014 24 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 24\u201424), which applies to cities with a population of under 500,000. The section provides:\n\u201c\u00a7 24\u201424. Maintenance of discipline. Teachers and other certificated educational employees shall maintain discipline in the schools, including school grounds which are owned or leased by the board and used for school purposes and activities. 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. 1985, ch. 122, par. 24\u201424.)\nThe Illinois Supreme Court found that section 24\u201424 confers immunity to teachers and other certificated educational employees from negligence actions involving activities related to school in nondisciplinary and disciplinary matters. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705.) Therefore, teachers cannot be liable for a student\u2019s injuries in such cases unless their conduct was wilful and wanton. Kobylanski, 63 Ill. 2d 165, 347 N.E.2d 705.\nIn Kobylanski, the supreme court reviewed two cases where students brought negligence actions against their teachers and school districts for injuries sustained during physical education class. Both complaints alleged defendants failed to properly supervise the activity in class. The court rejected plaintiffs\u2019 arguments that the statute only conferred immunity in disciplinary matters and found section 24\u201424 granted immunity to defendants for the activities alleged in plaintiffs\u2019 complaints. Under the situations presented, plaintiffs would have to prove that defendants\u2019 conduct was wilful and wanton.\nSeeking to avoid the effect of Kobylanski, plaintiffs argue that counts I and IV state a cause of action for negligence under O\u2019Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 415 N.E.2d 1015, where the supreme court found that section 24\u201424 did not apply to plaintiff\u2019s cause of action for negligence against his teachers and the school district. In O\u2019Brien, plaintiff alleged he was injured in an activity unrelated to school and outside of school property. Plaintiff named two teachers, a student, and the school district as defendants and alleged that the teachers, as agents of the district, directed the student, who did not have medical training, to treat his injury. As a result of the treatment, plaintiff suffered personal injuries. One count of plaintiff\u2019s complaint alleged defendants were liable for negligence. On defendants\u2019 motion, the trial court dismissed plaintiff\u2019s complaint for failure to state a cause of action. The supreme court, however, reversed noting that the immunity under section 24\u201424 applied only to activities connected with the school program. The court found that defendants\u2019 alleged conduct of directing an untrained student to treat plaintiff was not an activity connected to the school program and that plaintiff\u2019s injury occurred outside of school property in an activity unrelated to school. Further, defendants did not have training to provide medical treatment to plaintiff. The court stated:\n\u201cTeachers are not privileged to do everything that a parent may do. Any decision as to the necessity of medical treatment, at least of the type alleged to have been administered here, was for the plaintiff\u2019s parents, rather than his teachers, to make in the first instance. In our opinion, the negligence alleged clearly went beyond and was totally outside the ambit of a teacher\u2019s supervisory function.\u201d (Emphasis added.) (O\u2019Brien, 83 Ill. 2d at 467-68, 415 N.E.2d at 1018.)\nThe court found defendants\u2019 alleged negligent conduct was outside the scope of section 24\u201424 and plaintiff\u2019s complaint stated a cause of action for negligence.\nO\u2019Brien is distinguishable from the case at bar. O\u2019Brien involved teachers providing medical treatment to a student who was injured outside of school property in an activity unrelated to school. Under that situation the supreme court found that the immunity of section 24\u201424 did not apply. Here, however, Meghan was injured on school premises in an activity connected with the school program. O\u2019Brien acknowledged that such a situation generally immunizes teachers and school districts from liability for negligence. Also, here defendants did not venture outside of their expertise and impose improper medical treatment as in O\u2019Brien. Further, plaintiffs do not cite and we have not found a case that extended the holding of O\u2019Brien to a case with facts similar to those presented here. The teachers in this case were faced with determining whether it was necessary to allow Meghan to see the school nurse. On the facts alleged in plaintiffs\u2019 complaint, we believe that defendant\u2019s conduct falls within a teacher\u2019s supervisory authority and, therefore, under Kobylanski, section 24\u201424 provides immunity for such a negligence action. Counts I and IV of plaintiffs\u2019 complaint were properly dismissed.\nII\nCounts II and V of plaintiffs\u2019 complaint alleging wilful and wanton misconduct were directed against Lomonaco, who was Meghan\u2019s physical education teacher, and the school district. Plaintiffs alleged that Lomonaco, as an agent of the school district, knew or should have known that wrestling mats which were not taped down and used for jazz dancing would create a dangerous condition, failed to stop the jazz dancing when the mats overlapped, and failed to discover the danger of overlapped mats when it could have been discovered with ordinary care.\nA complaint for wilful and wanton misconduct must allege facts to support \u201ceither a deliberate intention to harm or an utter indifference *** or conscious disregard\u201d for plaintiff\u2019s welfare. (Adkins, 129 Ill. 2d at 518, 544 N.E.2d at 743.) Despite the rule that pleadings are to be liberally construed, a complaint must allege facts necessary to support recovery under a cause of action. Tijerina v. Evans (1986), 150 Ill. App. 3d 288, 501 N.E.2d 995.\nIn their brief, plaintiffs state that \u201cperhaps\u201d the facts of the wilful and wanton misconduct count were \u201ctoo subtle\u201d in alleging how the jazz dancing was dangerous. Plaintiffs then \u201celaboratfed]\u201d on the allegations of their complaint. Because this court can only review the allegations of plaintiffs\u2019 complaint in determining whether it states a cause of action (MBL (USA) Corp. v. Diekman (1985), 137 Ill. App. 3d 238, 484 N.E.2d 371), we disregard these elaborations in plaintiffs\u2019 brief.\nPlaintiffs assert that the present case is \u201cnot too dissimilar\u201d from Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 462 N.E.2d 877, where plaintiff, a student in an industrial arts class, was hammering scrap metal into a hole in an anvil without wearing safety goggles. The teacher observed him during this activity but did not tell him to wear goggles. Plaintiff was injured when a metal scrap flew into his eye. Summary judgment was granted in defendants\u2019 favor. On review, the appellate court found that the complaint stated a cause of action for wilful and wanton misconduct but reversed the summary judgment because the question of whether the conduct was wilful and wanton was one of fact.\nAlthough Hadley was on review from summary judgment, plaintiffs in the present case rely on the appellate court\u2019s finding that the complaint stated a cause of action for wilful and wanton misconduct. The court in Hadley relied on plaintiff\u2019s allegations that the teacher was present while plaintiff was hammering metal into an anvil without protective goggles but did not direct him to wear goggles and that the teacher knew or should have known that the metal could splinter and cause an injury. Hadley, however, presented a different factual situation from the case at bar. In Hadley, plaintiff alleged the teacher actually observed plaintiff in a situation that the court found \u201cdangerous\u201d but the teacher did nothing. (Hadley, 123 Ill. App. 3d at 23, 462 N.E.2d at 881.) Here, even assuming the activity was dangerous, there was no allegation that Lomonaco observed a dangerous situation and failed to act. Therefore, Hadley is not dispositive of the issue before us.\nIn this case, plaintiffs alleged that Lomonaco directed Meghan to jazz dance on wrestling mats which were not taped down, that the mats overlapped during the dance, and that Lomonaco did not discover the overlapped mats or stop the activity. To support a cause of action for wilful and wanton misconduct, plaintiffs must allege facts which if proven exhibit a deliberate intention to harm or an utter indifference or conscious disregard for Meghan\u2019s safety. Plaintiffs did not allege Lomonaco deliberately intended to harm Meghan. Further, the facts alleged do not support a finding that Lomonaco\u2019s conduct exhibited an utter indifference or conscious disregard for Meghan\u2019s safety. The allegations of counts II and V arguably state a cause of action for negligence for which defendants would be immune; however, defendants\u2019 conduct did not rise to the level of wilful and wanton misconduct. Therefore, the trial court\u2019s dismissal of counts II and V of plaintiffs\u2019 complaint was proper.\nIll\nLastly, in counts III and VI plaintiffs alleged that the school district was negligent when it failed to provide appropriate mats for jazz dancing and failed to properly use the wrestling mats.\nThe leading case in the area of a school district\u2019s liability for furnishing equipment is Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323. In Gerrity, plaintiff alleged that the school district was negligent in furnishing him with an \u201cill-fitting and inadequate football helmet.\u201d (Gerrity, 71 Ill. 2d at 49, 373 N.E.2d at 1324.) The trial court dismissed the complaint based on the supreme court\u2019s decision in Kobylanski that under the School Code the school district was immune from negligence actions and could only be sued for wilful and wanton misconduct. On appeal from the dismissal of the complaint, the supreme court in Gerrity found that Kobylanski did not apply to a negligence action against the school district in furnishing equipment. The court distinguished Kobylanski and other cases because they involved a teacher\u2019s supervision and control of students. The court in Gerrity found that the alleged negligent conduct of the school district in furnishing equipment was a separate function which did not affect the teacher-student relationship. Therefore, the court found plaintiff\u2019s complaint stated a cause of action for negligence in \u201cfurnishing equipment *** alleged to be inadequate, ill fitting and defective and *** was known, or which in the exercise of ordinary care should have been known, to be liable to cause injury to the plaintiff.\u201d Gerrity, 71 Ill. 2d at 52, 373 N.E.2d at 1326.\nPlaintiffs in this case alleged that the school district failed to provide \u201cappropriate\u201d mats for jazz dancing but did not allege how the mats were inappropriate. For example, plaintiffs rely on Ausmus (155 Ill. App. 3d 705, 508 N.E.2d 298), where plaintiff alleged the school board was negligent when it furnished regulation size and weight bats for a third-grade physical education class. Plaintiff alleged the bats were too heavy for the students and, as a result, plaintiff was hit in the face with a bat swung by another student. On appeal from the dismissal of the complaint, the appellate court found the complaint stated a cause of action for negligence in failing to furnish safe athletic equipment fit for the purpose intended. In Ausmus, plaintiff specifically alleged how the bats were not fit for the purpose intended. In this case, however, plaintiffs merely concluded the mats were inappropriate without any supporting facts.\nPlaintiffs also alleged that the school district failed to appropriately use the wrestling mats by not taping them down. However, teachers have the authority to supervise their students\u2019 use of equipment. (Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 395 N.E.2d 538.) In this case, the school district\u2019s liability would, therefore, be dependent on Lomonaco\u2019s conduct as its agent, and under section 24\u201424, the school district would be immune from a negligence action involving the use of the mats. (Thomas, 77 Ill. 2d 165, 395 N.E.2d 538.) The trial court properly dismissed counts III and VI of plaintiffs\u2019 complaint for failure to state a cause of action for negligence against the school district.\nAffirmed.\nMURRAY and GORDON, JJ., concur.\nSection 34\u201484a of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 34\u201484a) is applicable to cities with a population of more than 500,000 and is identical to section 24-24.\nJustice R. Eugene Pincham participated in this case prior to his resignation. Since that time, Justice Joseph Gordon was designated the third member of the panel and has read the record and briefs and listened to the oral argument tape.", "type": "majority", "author": "JUSTICE LORENZ" } ], "attorneys": [ "Robert W. Karr and Marion A. Morawicz, both of Robert W. Karr & Associates, Ltd., of Chicago, for appellants.", "Vedder, Price, Kaufman & Kammholz, of Chicago (Richard C. Robin and Debra I. Danner, of counsel), for appellees." ], "corrections": "", "head_matter": "MEGHAN GARA, a Minor, by her Mother and Next Friend, Judith B. Gara, et al., Plaintiffs-Appellants, v. CHRIS LOMONACO et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1\u201488\u20143536\nOpinion filed May 25, 1990.\nRobert W. Karr and Marion A. Morawicz, both of Robert W. Karr & Associates, Ltd., of Chicago, for appellants.\nVedder, Price, Kaufman & Kammholz, of Chicago (Richard C. Robin and Debra I. Danner, of counsel), for appellees." }, "file_name": "0633-01", "first_page_order": 661, "last_page_order": 669 }