Tort Immunity

By Sawyer, Thomas H. | JOPERD--The Journal of Physical Education, Recreation & Dance, August 2003 | Go to article overview

Tort Immunity


Sawyer, Thomas H., JOPERD--The Journal of Physical Education, Recreation & Dance


Catberro v. Naperville School District No. 203 Appellate Court of Illinois, Second District 317 Ill. App. 3d 150; 739 N.E. 2d 115; 2000 Ill. App. LEXIS 864 (2000)

Bryan Catberro, a fourth grader at Riverwoods School in Naperville, Illinois, tripped and fell while jumping over a rope that was strung between two poles during physical education class on May 5, 1998. One of the poles tipped over, striking and cutting Bryan's face. The plaintiff alleged that the physical education teacher had bought the poles at a garage sale. The teacher did not hold a policy-making position in the school district and therefore was not protected by discretionary immunity under the Tort Immunity Act. At the time of the incident, the poles needed repair. They had no caps on them, thereby exposing rough edges. When he was injured, Bryan was jumping over the rope as the teacher had instructed. As a result of the injury, Bryan sustained permanent injuries to his face.

The Complaint

The plaintiff filed a two-count complaint against Naperville School District No. 203, which moved to dismiss it, asserting that it was protected by the Tort Immunity Act. The trial court granted the motion, holding that the district could not be liable for negligence in providing equipment and that the decision to purchase the poles was a discretionary action for which the defendant was also immunized. The plaintiff then filed an appeal.

The Appeal

In the appeal, the plaintiff contended that the court erred in (1) changing his complaint from an allegation of negligent maintenance of property to an allegation of negligent supply of equipment; (2) stating that a physical education teacher displayed discretionary authority by purchasing equipment for physical education; and (3) claiming that the teacher was included in the class of persons protected by discretionary immunity under the Local Governmental and Governmental Employees Tort Immunity Act.

The plaintiff argued that the court misinterpreted the first count--alleging that the district negligently maintained its property--as negligent provision of faulty equipment and thus dismissed the complaint on that basis. The defendant responded that the complaint did not allege negligent maintenance and that it was the plaintiff who was trying to recast the complaint.

The court reviewed the key section of the complaint, which alleged that the defendant was negligent in that it "Failed to properly inspect its poles and rope for safety; failed to ensure that the poles were properly capped; allowed the condition of the pole to deteriorate thus exposing minor plaintiff to sharp edges [and] instructed plaintiff to jump over equipment it knew or should have known was not reasonably safe."

The defendant moved to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure. Section 2-619 provides a way to obtain summary disposition of issues of law or easily proved issues of fact. The act governs whether and in what situations local governmental units are immune from civil liability. In interpreting the act, the court's primary goal is to ascertain and give effect to the legislature's intention. The court decided not to depart from the plain language of the act by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent.

The plaintiff contended that the court erred in dismissing the complaint on the basis of discretionary action immunity. The complaint alleged that the teacher lacked the discretionary authority to purchase equipment on behalf of the district, and that this prevents the district from relying on the act's discretionary-immunity provision. …

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