Longfellow v. Corey

CourtAppellate Court of Illinois
DecidedFebruary 4, 1997
Docket4-96-0460
StatusPublished

This text of Longfellow v. Corey (Longfellow v. Corey) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Longfellow v. Corey, (Ill. Ct. App. 1997).

Opinion

                             NO. 4-96-0460

                         IN THE APPELLATE COURT

                               OF ILLINOIS

                             FOURTH DISTRICT                         

BRETT LONGFELLOW, a Minor Child, by     )    Appeal from

his Mother and Next Friend, HOLLY       )    Circuit Court of

LONGFELLOW, and HOLLY LONGFELLOW,       )    Champaign County

         Plaintiffs-Appellants,        )    No. 94L1715

         v.                            )

J.D. COREY, TERRY NAPPER, and URBANA    )    Honorable

SCHOOL DISTRICT NO. 116,                )    John G. Townsend,

         Defendants-Appellees.         )    Judge Presiding.

_________________________________________________________________

         PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

         In November 1994, plaintiff, Holly Longfellow, individ-

ually and as the mother and next friend of Brett Longfellow, a

minor, sued defendants, Urbana School District No. 116 (School

District), Terry Napper, and J.D. Corey, in an action for person-

al injuries.  In May 1996, the trial court determined that defen-

dants were immune from liability pursuant to section 3-108(a) of

the Local Governmental and Governmental Employees Tort Immunity

Act (Act) (745 ILCS 10/3-108(a) (West 1992)) and dismissed

plaintiffs' second-amended complaint with prejudice.  Plaintiffs

appeal from that dismissal, and we reverse and remand.    

                              I. BACKGROUND

         In February 1996, plaintiffs filed a second-amended

complaint alleging that on December 1, 1993, Brett (then eight

years old) was a student in an after-school child care program at

Wiley Elementary School in Urbana, Illinois.  Defendant School

District operated the after-school program.  The School District

employed defendant Napper as the site coordinator and defendant

Corey as a recreational leader for the program.  The second-

amended complaint alleged that on December 1, 1993, Corey "di-

rected [Brett] to participate in a game of tag requiring [Brett]

to have a piece of cloth in his pant's back pocket and to be

pursued by [Corey], for the intended purpose of avoiding [Corey]

from removing the piece of cloth from [Brett's] pant's back pock-

et."  At Corey's direction, Brett ran backward across the gymna-

sium floor while Corey ran toward him.  The complaint further

alleged that (1) Corey was "significantly" taller and faster than

Brett; (2) Corey had a "longer foot span and longer gait"; (3)

Corey was "running full speed facing straight at" Brett as Brett

ran backward, mirroring Corey's movements; (4) Corey was able to

change direction more quickly than Brett; and (5) Brett was

pushed beyond his normal capabilities by Corey's actions.  The

complaint further alleged that "as a direct and proximate result"

of Corey's conduct as an active participant in the game, Brett

tripped while running backward and fell, suffering injuries to

his mouth and teeth.  

         Defendants moved to dismiss the second-amended com-

plaint pursuant to section 2-619(a)(9) of the Code of Civil

Procedure (735 ILCS 5/2-619(a)(9) (West 1992)).  They claimed

that "all counts of the [p]laintiff's [sic] second[-]amended com-

plaint are based upon allegations that the [d]efendants failed to

properly supervise the activities" of Brett, and therefore,

section 3-108(a) of the Act immunized them from liability from

any claim of negligence or wilful or wanton conduct based on

supervision of an activity.

         In May 1996, after considering the parties' motions and

arguments, the trial court granted defendants' motion and dis-

missed the second-amended complaint with prejudice.  The court

specifically found that "there is no qualitative difference

between the 'participatory' activity argued by [p]laintiff[s] to

be present here and the activities involved in supervising encom-

passed by [section 3-108(a) of the Act]."

                      II. SECTION 3-108(a) IMMUNITY

         Plaintiffs argue that section 3-108(a) of the Act does

not provide immunity in this case where "[t]he cause of action in

question rests squarely on the active participation by an adult

in a children's game, not on a failure to adequately supervise a

children's game."  Plaintiffs contend that section 3-108(a) of

the Act is specifically limited to situations in which a failure

to "oversee" an activity results in injury and does not extend to

situations in which "participatory" conduct proximately causes

the injury.  In response, defendants argue that even though the

second-amended complaint did not specifically allege a "failure

to supervise," the facts alleged therein constitute nothing more

than supervision.  

         The purpose of a section 2-619 motion to dismiss is to

provide a means to dispose of issues of law or easily proved

issues of fact.  Kedzie & 103rd Currency Exchange, Inc. v. Hodge,

156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993).  In the present

case, the ground advanced for dismissing the complaint is that

the claims asserted therein are barred by a defense that com-

pletely negates the asserted causes of action.  Payne v. Lake

Forest Community High School District 115, 268 Ill. App. 3d 783,

784-85, 644 N.E.2d 835, 836 (1994); see 735 ILCS 5/2-619(a)(9)

(West 1992).  The trial court should grant the motion and dismiss

the complaint if, after construing the allegations in the light

most favorable to the plaintiff, no set of facts can be proved

which would entitle the plaintiff to recover.  Payne, 268 Ill.

App. 3d at 785, 644 N.E.2d at 836.

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