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2 November 2000

No.2--99-1210

Plaintiff, Don Catberro, individually and as the father andnext friend of Bryan Catberro, appeals the circuit court's orderdismissing his complaint against defendant, Naperville SchoolDistrict No. 203. Plaintiff contends that the court erred in (1)recasting his complaint from one alleging the negligent maintenanceof property to one alleging the negligent supply of equipment; (2)holding that a physical education teacher's purchase of equipmentfor use in class was immunized as an exercise of discretionaryauthority; and (3) holding that the teacher was included in the class of persons protected by discretionary immunity under theLocal Governmental and Governmental Employees Tort Immunity Act(the Act) (745 ILCS 10/1-101 et seq. (West 1998)).

The complaint alleges that Bryan Catberro was a fourth-graderat Riverwoods School. During physical education class on May 5,1998, Bryan tripped and fell while jumping over a rope strungbetween two poles. One of the poles tipped over and struck Bryan,cutting his face.

Plaintiff alleged that the gym teacher had bought the poles ata garage sale. The teacher did not hold a policy-making positionin the school district. On May 5, 1998, the poles were in a stateof disrepair. They had no caps, thereby exposing rough edges. When he was injured, Bryan was jumping over the rope as the teacherhad instructed him. Bryan sustained permanent injuries to his faceas a result of the incident.

Plaintiff filed a two-count complaint against the district,which moved to dismiss it. The district asserted that it wasimmune from liability under the Act. The trial court granted themotion, holding that the district could not be liable fornegligently providing equipment and that the decision to purchasethe poles was a discretionary one for which defendant was alsoimmunized. Plaintiff filed a timely notice of appeal.

Plaintiff first contends that the court erred by recasting hiscomplaint. Plaintiff argues that count I alleges that the districtnegligently maintained its property. According to plaintiff, thecourt interpreted count I as alleging that the district negligentlyprovided faulty equipment and dismissed the complaint on thatbasis. Defendant responds that the complaint does not allegenegligent maintenance and that it is plaintiff who is trying torecast his complaint.

Defendant moved to dismiss pursuant to section 2--619 of theCode of Civil Procedure (735 ILCS 5/2--619 (West 1998)). Section2--619 provides a means to obtain summary disposition of issues oflaw or easily proved issues of fact. A section 2--619 motionadmits the legal sufficiency of the cause of action. An appealfrom such a dismissal is reviewed de novo. Klein v. DeVries, 309Ill. App. 3d 271, 273 (1999).

The Act governs whether and in what situations localgovernmental units are immune from civil liability. Epstein v.Chicago Board of Education, 178 Ill. 2d 370, 375 (1997). Inconstruing the Act, our primary goal is to ascertain and giveeffect to the legislature's intention. Barnett v. Zion ParkDistrict, 171 Ill. 2d 378, 388 (1996). We will not depart from theplain language of the Act by reading into it exceptions,limitations, or conditions that conflict with the expresslegislative intent. Barnett, 171 Ill. 2d at 389.

We agree with plaintiff that the complaint containsallegations, which the trial court disregarded, that the districtnegligently maintained its property. Paragraph 9 of the secondamended complaint, the operative one here, alleged that defendantwas negligent in that it:

"a. Failed to properly inspect its poles and rope forsafety;

b. Failed to ensure that the poles were properly capped;

c. Failed to replace the cap on the poles on which minorplaintiff was injured thus exposing minor plaintiff to dangerof sharp edges;

d. Allowed the condition of the pole to deteriorate thusexposing minor plaintiff to sharp edges;

e. Instructed plaintiff to jump over equipment it knew orshould have known was not reasonably safe."

Subparagraph 9(e) explicitly alleges that the district failedto maintain its property in that it "[a]llowed the condition of thepole to deteriorate." Subparagraphs 9(a), 9(b), and 9(c), whenread in the light most favorable to plaintiff, sufficiently allegea failure to maintain the equipment. Thus, the complaint canfairly be read as alleging that the district failed to maintain itsproperty in a reasonably safe condition. The Act does not provideblanket immunity to defendant for negligently maintaining itsproperty. 745 ILCS 10/3--102(a) (West 1998). The court erred indismissing the complaint on this basis.

Plaintiff also contends that the court erred in dismissing thecomplaint on the basis of discretionary-action immunity. Thecomplaint alleges that the teacher lacked the discretionaryauthority to purchase equipment on behalf of the district. Plaintiff contends that this prevents the district from relying onthe Act's discretionary-immunity provision. Defendant respondsthat the district has the discretion to decide what equipment touse in its schools and that plaintiff failed to establish that theteacher did not have the authority to make such decisions.

Section 2--201 of the Act provides as follows:

"Except as otherwise provided by Statute, a publicemployee serving in a position involving the determination ofpolicy or the exercise of discretion is not liable for aninjury resulting from his act or omission in determiningpolicy when acting in the exercise of such discretion eventhough abused." 745 ILCS 10/2--201 (West 1998).

To qualify for the immunity provided by this section, anemployee must hold a position involving either the determination ofpolicy or the exercise of discretion. However, the immunity willnot attach unless plaintiff's injury results from an employee's actthat involved both determining policy and exercising discretion. Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d335, 341 (1998).

The first question, then, is whether the teacher had either apolicy-making role or the discretionary authority to purchaseequipment. Plaintiff argues that the complaint alleges theteacher's lack of such capacity. The district responds that theteacher's acts of choosing the rope and poles and having thestudents jump over the rope were clearly discretionary.

By statute, the school board has the duty to determine whatapparatus shall be used in the course of instruction. 105 ILCS5/10--20.8 (West 1998). Thus, the provision of equipment is adiscretionary act of the school board for purposes of section 2--201. Bowers v. Du Page County Regional Board of School TrusteesDistrict No. 4, 183 Ill. App. 3d 367, 379 (1989).

Although the school district has the authority to purchase andfurnish equipment to students, this authority is not shared withteachers and coaches. Thomas v. Chicago Board of Education, 77Ill. 2d 165, 171 (1979). In Courson v. Danville School DistrictNo. 118, 301 Ill. App. 3d 752 (1998), a student was injured in shopclass while using a saw with the safety guard removed. The courtheld that factual questions existed as to whether the removal ofthe guard was an exercise of discretion (in which case immunitymight apply) or simply an oversight (which would not be immunized). The court observed that the saw's operating manual implied thatusing the guard might not be practicable in certain operations. Courson, 301 Ill. App. 3d at 757. Thus, the failure to use theguard could have been a discretionary decision rather than merenegligence.

Similar questions exist here. First, did the teacher have thediscretionary authority to purchase equipment for use in physicaleducation classes? The complaint alleges that he did not, anallegation we must take as true for purposes of a motion todismiss. Majca v. Beekil, 183 Ill. 2d 407, 416 (1998). Asdiscussed above, the school board has the duty and discretion toprovide apparatus for use in classes. It is not clear that suchauthority can ever be delegated or, if it can be, whether theteacher in this case actually had such authority. Moreover, it isnot clear that the purchase of a single piece of equipment can beconsidered a policy determination as required for immunity underHarinek.

The second question is, if the teacher was delegated someauthority to buy equipment, was the purchase of the poles anexercise of that authority or merely negligence? Did the teachermake a discretionary decision to purchase the poles in thatcondition and use them in class, or merely fail to inspect themproperly? These questions cannot be resolved in the context of amotion to dismiss.

The district argues that, when legal conclusions aredisregarded, the complaint does not sufficiently allege that theteacher lacked discretionary authority. However, as the movantunder section 2--619, defendant has the initial burden of goingforward. Klein, 309 Ill. App. 3d at 273. Moreover, immunity is anaffirmative defense that defendant must plead and prove. Henrichv. Libertyville High School, 186 Ill. 2d 381, 387 (1998). Defendant may not shift this burden to plaintiff by arguing thatthe complaint does not contain allegations to refute theaffirmative defense.

The cases on which defendant relies are distinguishable. InJohnson v. Decatur Park District, 301 Ill. App. 3d 798 (1998), aminor was injured by jumping off a trampoline. There was noallegation that the trampoline itself was defective; plaintiffmerely alleged that the coach was negligent in the way heinstructed the gymnasts to use it, a matter clearly within hisdiscretion. Johnson, 301 Ill. App. 3d at 809-10; see Thomas, 77Ill. 2d at 171 (teachers and coaches have supervisory authority toconduct classes and practices). In Bowers, the complaint allegedthat the defective equipment was provided by the school boardrather than an individual teacher, so there was no question of alack of authority. Bowers, 183 Ill. App. 3d at 379.

The judgment of the circuit court of Du Page County isreversed, and the cause is remanded for further proceedings.

Reversed and remanded.

GEIGER and HUTCHINSON,JJ., concur.