Opinion
No. 5-90-0552
Opinion filed November 12, 1991.
Appeal from the Circuit Court of Wayne County; the Hon. Donald E. Garrison, Judge, presiding.
Michael J. Hanagan, of Hanagan Dousman, of Mt. Vernon, for appellants.
Michael W. Klobnak, of Smith, McCollum Riggle, of Flora, for appellee.
Plaintiff was playing speedball during a required physical education class at Cisne Community High School. Another player, while attempting to kick the ball, kicked plaintiff's right shin, breaking plaintiff's lower leg. Plaintiff and his father sued the school district alleging failure to furnish protective shinguards.
The circuit court, relying on Woodson v. North Chicago Community School District No. 64 (1989), 187 Ill. App.3d 168, 543 N.E.2d 290, dismissed plaintiffs' complaint, ruling that plaintiffs failed to allege that: (1) plaintiff was engaged in a school-related activity; (2) plaintiff's injury was one which commonly occurs as a result of that activity; (3) plaintiff's injury was severe; and (4) the equipment the school district failed to supply would have been fit for the purpose of preventing the injury. We reverse and remand.
• 1 A motion to dismiss for failure to state a cause of action should be affirmed on appeal only where no set of facts can be proven under the pleadings which will entitle the plaintiff to relief. ( Huebner v. Hunter Packing Co. (1978), 59 Ill. App.3d 563, 375 N.E.2d 873.) The question for us to consider is whether the four items set forth by the circuit court and listed in the paragraph immediately above are indeed pleading requirements.
SCHOOL-RELATED ACTIVITY
The record reveals, and defendant concedes, that the complaint did allege that plaintiff was engaged in a school-related activity. Paragraph three of plaintiffs' complaint states:
"The plaintiff * * * was a pupil enrolled at the defendant, NORTH WAYNE COMMUNITY UNIT SCHOOL DISTRICT No. 200, and participating in required physical education instruction at Cisne Community High School."
COMMON AND SEVERE
The circuit court, citing Woodson v. North Chicago Community School District No. 64 (1989), 187 Ill. App.3d 168, 543 N.E.2d 290, stated that plaintiff must allege that his injuries are "common" and "severe." Plaintiffs, relying upon Gerrity v. Beatty (1978), 71 Ill.2d 47, 373 N.E.2d 1323, and Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill.2d 415, 412 N.E.2d 447, argue that "common" and "severe" are not pleading requirements. We agree with plaintiffs.
The Illinois Supreme Court in Gerrity v. Beatty (1978), 71 Ill.2d 47, 373 N.E.2d 1323, held that school districts have the duty of ordinary care in furnishing athletic equipment. ( Gerrity, 71 Ill.2d at 52, 373 N.E.2d at 1326.) The supreme court extended the Gerrity rule in Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill.2d 415, 412 N.E.2d 447, holding that a school district has not only a duty to furnish safe equipment, but also an affirmative duty to provide equipment to prevent injuries. In so holding, the court stated:
"We think a 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. At the least, a school district should furnish helmets and face guards for a game such as football, where head injuries are common and severe." (Emphasis added.) Lynch, 82 Ill.2d at 434-35, 412 N.E.2d at 459.
In Woodson v. North Chicago Community School District No. 64 (1989), 187 Ill. App.3d 168, 543 N.E.2d 290, the Illinois Appellate Court, Second District, seemed to transform Lynch's "common and severe" phrase into a pleading requirement, stating: "[t]o allege sufficiently a breach of the duty of ordinary care, plaintiffs were required to state specific facts tending to show * * * that the injury he suffered is one which commonly occurs as a result of that activity, [and] that his injury was severe." Woodson, 187 Ill. App.3d at 173, 543 N.E.2d at 292.
To the extent that Woodson may be read to require that plaintiff plead that his injury was "common" and "severe," we disagree. We conclude that the language, "common and severe," in Lynch, was dictum, for the court had already established that a school board had an affirmative duty to furnish safe equipment and the phrase "common and severe" merely was exegetic of the ruling, emphasizing that the cause of action was foreseeable. Transforming "common" and "severe" into pleading requirements seems to us to be bad law, because that transformation would force circuit courts to decide a threshold question of law without any definable standard for judging an injury to be either "common" or "severe." Furthermore, a determination whether an injury is "common" or "severe" at the pleading stage is not only, to some extent, a factual determination, which might entitle plaintiff to an evidentiary hearing, but is also marred by another defect: it would create inconsistent results, because whether an injury is judged to be "common" or "severe" necessarily depends on the subjective sensibilities of each circuit court judge.
We know of no tort law requiring plaintiff to specifically plead that his injuries are "common" and "severe" (see Gerrity v. Beatty (1978), 71 Ill.2d 47, 373 N.E.2d 1323; Ausmus v. Board of Education (1987), 155 Ill. App.3d 705, 508 N.E.2d 298; Bowers v. Du Page County Regional Board of School Trustees District No. 4 (1989), 183 Ill. App.3d 367, 539 N.E.2d 246; Jastram v. Lake Villa School District 41 (1989), 192 Ill. App.3d 599, 549 N.E.2d 9); therefore, we hold that "common" and "severe" are not pleading requirements.
EQUIPMENT WOULD HAVE BEEN FIT FOR THE PURPOSE OF PREVENTING THE INJURY
The circuit court, again relying on Woodson, dismissed plaintiffs' complaint for failure to state that the equipment defendant failed to supply would have been fit for the purpose of preventing the injury. In holding that "fit for the purpose of preventing the injury" was a pleading requirement ( Woodson, 187 Ill. App.3d at 173, 543 N.E.2d at 292), Woodson relied on language in Gerrity, a case in which plaintiff sued the school for providing an ill-fitting and inadequate helmet. Gerrity held that a school district has a duty of ordinary care in furnishing equipment, stating that "public policy considerations argue rather strongly against any interpretation which would relax a school district's obligation to insure that equipment provided for students in connection with activities of this type is fit for the purpose." ( Gerrity, 71 Ill.2d at 52, 373 N.E.2d at 1326.) We disagree. The distinction between the case at hand and Gerrity is that, here, plaintiff alleged a failure to provide any equipment at all, whereas in Gerrity, plaintiff alleged that the equipment provided was inadequate. Reliance on Gerrity is, therefore, misplaced. We hold that where plaintiff sues defendant for failure to provide equipment, pleading that the product defendant failed to supply would have been fit for the purpose of preventing the injury is not required, and we do not address whether "fit for the purpose of preventing the injury" is a pleading requirement in an action for failure to provide proper equipment.
• 2 We focus now on plaintiffs' complaint. For plaintiffs' complaint to be sufficient, it must allege that plaintiff was engaged in a school-related activity ( Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill.2d 415, 412 N.E.2d 447) and must set out facts establishing the existence of a duty of care owed by defendant to plaintiff, a breach of that duty, and an injury which is the proximate result of that breach. ( Teter v. Clemens (1986), 112 Ill.2d 252, 492 N.E.2d 1340.) Plaintiffs' complaint provided, in part, that defendant negligently:
"Requir[ed] DAVID SELPH to participate in a group activity similar to soccer, known as speedball, without furnishing plaintiff with protective shinguards, when it knew, or should have known that the safety of said plaintiff would thereby be endangered.
Requir[ed] DAVID SELPH to participate in a group activity similar to soccer, known as speedball, without telling the plaintiff that shinguards should be used, when it knew, or in the exercise of ordinary care should have known, that such failure on its part endangered said plaintiff.
Failed to supply DAVID SELPH with protective shinguards, when it knew, or should have known[,] that such failure endangered said plaintiff.
Failed to give DAVID SELPH the option of not participating in such sport without protective shinguards, when defendant knew, or in the exercise of ordinary care should have known, that without such shinguards the safety of said plaintiff was endangered.
As a direct and proximate result of one or more of the foregoing negligent and careless acts or omissions of the defendant, DAVID SELPH sustained severe leg injuries when another player unintentionally kicked the plaintiff in his right shin while participating in said game.
Further, DAVID SELPH has sustained disability from said injuries to his leg;
Further, DAVID SELPH has in the past and will in the future experience pain and suffering as a result of the injuries;
Further, DAVID SELPH has sustained disfigurement as a result of the injuries * * *."
We find plaintiffs' complaint sufficient to withstand a motion to dismiss, and the order dismissing plaintiffs' complaint for failure to state a cause of action, therefore, is reversed, and the cause is remanded for further proceedings.
Reversed and remanded.
WELCH and HARRISON, JJ., concur.