*1 parole diminished or eliminated ex- substantially “clearly ceptional circumstances” bar, In the case at 3—5(f) there is no that section 3—

the Code in its current form diminished plaintiff’s opportunity parole and worked plain detriment. We render no as to whether opinion tiff express should be and we do not paroled, opinion an as whether above, can of his As prove complaint. noted we find plaintiff has stated a cause of applicable only. action to himself Ac we affirm the trial cordingly; allega court’s dismissal of the class action tions. reasons,

For the foregoing this cause is remanded to the circuit court of Randolph County for further proceedings. part;

Affirmed in reversed in part and remanded with directions. EARNS, P.J., JONES, J., concur. BRAUN,

GARY Plaintiff-Appellant, v. THE BOARD OF EDUCATION OF al., RED BUD COMMUNITY UNIT SCHOOL 132 et DISTRICT No. Defendants-Appellees. Fifth District No. 5-84-0471 Opinion filed December 16, Rehearing January denied 1987. *2 KASSERMAN, dissenting. J., Waterloo, Bud, Rau, appellant. and Rau & Cooper,

Rau & of Red Constance, Donovan, Belleville, ap- Rose, Hatch & Dennis E. pellees. of the court: opinion

JUSTICE WELCH delivered action, Braun, sought dam- injury plaintiff, Gary In this personal Community Bud Unit of education Red from defendants board ages Griffin, education physical 132 and Richard School District No. trial, a Randolph board. After defendant employed by teacher County jury found for on count against board complaint, alleged common negligence, and found $470,000. damages to be also found 15% com- jury paratively negligent, reducing $395,000. jury verdict found and Griffin on three, counts respectively. two Each of these alleged counts wilful and wanton misconduct. The trial court entered in the notwithstanding board’s favor the verdict as to count one. Plaintiff as to all appeals three counts.

In his complaint, amended plaintiff alleged as follows: Plaintiff was bom April 6, 1961. On December Griffin directed plain- tiff to post on the scoreboard the names of players going who were in a play game. basketball Plaintiff was a student and manager the basketball team. Griffin directed that use an aluminum extension ladder, ladder. While on causing “blacked out him to fall from the floor,” ladder to gymnasium was seri- ously injured. Plaintiff was afflicted with before epilepsy and after the fall, and this was indicated in plaintiff’s “School Health Examination Record.” Plaintiff alleged in count one that the board through its agents and negligent. servants was

Count two was also against board, directed but alleged the board’s acts or omissions amounted to wilful or wanton miscon- *3 three, duct. In count plaintiff alleged Griffin was guilty of wilful and wanton conduct.

Evidence to the pertinent issues on appeal was as follows: On or about 1976, plaintiff, high freshman, November a had sei- zure while seated in the coaches’ locker room at the high school. Dave Krause, then a coach for team, the freshman was present wit- seizure, nessed the as did one Krause player. telephoned fa- plaintiff’s ther, who came plaintiff and took home. Plaintiff did not game attend the his team played at another school evening. later that Krause testified he did not what he day know told Griffin of the No- vember seizure. Krause testified he did not previously know situation was not “controlled” afterward plaintiff’s father asked plaintiff whether he took his medication.

Plaintiff testified: Forgetting his medication did not result always in a seizure the same His day. father warned him use not to ladders or He high. high climb had used the school’s “scaffold” at least once. On the occasion he Griffin if scaffold, instant asked he could use the but Griffin him to get janitor’s told ladder from area. Griffin tested the ladder for steadiness. Plaintiff never Griffin plaintiff told was not to use ladders or that his medication controlling was not seizures. en- plaintiff seizures when

Griffin testified: He knew had plaintiff he of the November high tered school. He did not know when learned at the gym, free he had spent “any 29 seizure. Plaintiff moment” school, occasionally came Grif- both classes and after between Griffin time to his concerning fin’s from time plaintiff house. talked on the subject plain- seizures and medication and had also talked He that he had seizures. was “My understanding tiff’s was parents: the situation under control.” medication for those and was taking morning Griffin absent from school on the plaintiff knew doctor; He asked Plaintiff said he had seen the injury. plaintiff why. no, having problems; plaintiff just if said Griffin asked he was never saw have a seizure at school. Nei- a skin rash. Griffin not Griffin the medication was his ever told parents ther nor true, not he would he known controlling the seizures. Had or the scaffold. climb ladder not have let as to witnesses where disagreement among There was accident, agreed but all it was located at the time scaffold was standing intended portion The of the scaffold premises. as a (Holmes) platform the school superintendent was described by inches, rail” 42 inches above having “upper 133/i SVz an by inches feet 8 inches tall at the time of Plaintiff was about 5 platform. injury. Examina- evidence was “School Health the exhibits in

Among dentist, and (D. Tang), doctor his by filled out tion Record” In the grade. por- into ninth plaintiff’s entrance parents upon “yes” this record states parents, apparently completed tion left and states in an area blank (age) “9 yrs.” “epilepsy” hy- siezers and is “Has problems: notation of emotional social [sic] “The above-named person form states: printed also peractive.” competitive education and physical participate able physically original.) space specified.” (Emphasis unless otherwise sports filled in. following this statement was not struck a baseball seizures commenced after of sei- number There evidence that plaintiff bat in 1970. early 1971 to 1973. school from grade zures while *4 in 1974 and 1974, at He to school taught home. returned was no testified there The school nurse grade. the seventh repeated in 1974. return a seizure since school record of 17, on November hospitalized testified Plaintiff’s parents father Plaintiff’s 1975, seizures, adjusted. medication was and his school in 1976. May a seizure at testified 29, on November next seizure was mother testified began high Plaintiff school in the fall of 1976. There was evidence poor, and, academic continued to to his progress according be mother, emotionally to his when compared immature brothers he began school. Holmes a test high given testified that based on 1976, eighth graders in were at plaintiff’s academic skills then level. roughly fourth-grade court in argues entering judgment

Plaintiff trial erred Judgments the complaint. n.o.v. the board as count of in all ought n.o.v. to be entered in those of the evi only cases dence, when in its most so opponent, viewed favorable to aspect no on that overwhelmingly favors movant that verdict based contrary ever (Pedrick could stand. v. Peoria & Eastern R.R. Co. (1967), 510, 494, 37 Ill. 2d 504, 513-14.) N.E.2d propriety trial ruling court’s count one depends whether the trial court the extent of properly interpreted from immunity negligence suits provided by sections 24—24 and (Ill. 34—84a of the School Code 1985, 122, 24, Rev. Stat. ch. pars. 84a). The nature and ex 24— 34— tent has immunity been the much subject comment review, Illinois courts and consideration some of those cases is helpful Kobylanski here. In v. Chicago Board Education 165, 705, Ill. 2d 347 N.E.2d our court supreme held that these sec of the School tions Code were our legislature intended to confer upon teachers and other “certificated educational immu employees” from nity negligence suits arising out of “matters to the relating in and discipline conduct the schools school children” and concluded educators, order impose liability against such prove 165, must wilful and (63 wanton misconduct. Ill. 2d 705, 709, 347 N.E.2d 711.) Gerrity Beatty (1978), In v. 47, 1323, Ill. 2d supreme our allega court considered an tion of negligence against a school district. court concluded the allege “did not arising out negligence teacher-student relationship relating matters to the teacher’s per sonal and control supervision of the conduct or physical movement of student, but instead alleged with negligence connection what we consider to the separate furnishing (71 be function of Ill. equipment.” 47, 1326.) The court a concluded might action maintained against school district for breach of its to provide suitable duty equipment. Chicago Thomas Board of Education 77 Ill. 2d court our supreme “inspecting concluded that supplying equip students ment” was included in the super defendant football coaches’ duty vise rather than school district’s furnish *5 wanton) stringent (wilful the more thus fell under 165, 538, 172, Ill. 2d 395 N.E.2d court, in v. Board Education appellate The Illinois Griffis negli 784, 451, reasoned that the

(1979), 72 Ill. 3d App. should not be available gence conferred the School Code immunity to immunity to reason to such provide the board where there was no relationship that the teacher-student would guarantee the board as a relation The court concluded the teacher-student not be jeopardized. proximate to the cause give did not rise the conduct which was ship case, negligence in hence the standard plaintiff’s injuries of the that should be applied. authorities, trial court’s we believe the

In the above one, in the at was correct. In count ruling as to case bar servants, board, through agents the its alleged by and pro it “(a) negligently in that proximately plaintiff’s injuries caused ladder, to Plaintiff an aluminum extension namely, vided equipment, *** to the Defendant Plaintiff climb said ladder when and directed knew, known, dangerous it unreasonably or should have was to a child dangerous in that it was direct unreasonably equipment *** seizure the prem a child who had had a school epilepsy, thereto, to to ladder (7) days prior ises within climb said seven twenty adequate support protection; of ten to feet without height *** Plaintiff, epilepsy, a child with (b) negligently provide failed *** (7) within seven premises who had had a seizure thereto, such as scaffold prior proper equipment with safe and days could in a where the names on the scoreboard position Plaintiff put valiantly manner.” Plaintiff has at safe changed reasonably the within proper equipment a failure furnish tempted allege However, agent of the board Beatty. any v. the sole Gerrity rule Griffin, direct allegations supervisor these is the connected with way to “furnish” the scaf failure activity question. of the board’s for the scaffold proximate injuries, cannot be a cause fold it the available, though implemented was not “furnished” task. Gerrity. rule in the not within the

In our view instant facts are case, Gerrity, the “furnished.” instant unlike failure to use it was a and, assuming premises scaffold was on Grif- entirely that failure was injuries, proximate cause inap- relationship. out of the student-teacher fin’s and arose Griffis per- based on acts of the count in posite, as Griffis the tasks he assigned teacher than the who sonnel other v. Montag cites Board Edu- Plaintiff also injured. when doing cation 112 Ill. 3d App. arguing board’s in the case at bar was not only purchase the scaffold it but “supply” task. Plaintiff’s explanation relevance of that telling, case is however: “If the only purchases Board teachers, but, through its fails to equipment, supply equipment to students, then the Board is liable.” (Emphasis added.) argument directly implicates relationship student-teacher In Had hence the conferred our immunity legislature. ley Witt Unit School District 123 Ill. App. cited by plaintiff, approved appeal *6 were of wilful and wanton misconduct. And in Community Nielsen v. § Unit School District No. (1980), 3d App. Ill.

1177, cited by plaintiff, the court appellate concluded the negligence a theory was “based of primarily” defective as supervision. opposite opposed improper true of count one here count one which we quote above.

We conclude that the trial interpretation pertinent court’s authorities was correct judgment as to required board count one. We next consider plaintiff’s contention that the trial court should have entered judgment on counts two and three (Pedrick) under the n.o.v.

A wilful wanton must injury have been intentional or the act must have been committed under circumstances exhibiting a others, reckless disregard the safety failure, such as a after knowledge impending danger, to exercise to prevent care ordinary it or a failure to discover the through danger recklessness or careless ness when it could have been discovered by ordinary ques care. The tion amount whether acts wilful wanton misconduct is nor mally a of fact to (Hadley v. Witt be determined the jury. Unit District School App. 123 Ill. 3d It is the function of 880.) weigh evidence, the jury judge credi witnesses, bility ultimate conclusions of fact. (Cummings draw Authority Transit Chicago Ill. App. 737, 742.) There was case which, believed, if supported finding that Griffin not guilty wilful and wanton misconduct, the jury apparently believed that evidence. Griffin’s his testimony plaintiff’s controlled, indicated belief that condition was and we say cannot as matter of law the belief was unreasonable. Plaintiff’s recent seizure record as known to Griffin or other personnel placing was not such that him on a ladder was wilful and law; wanton as a matter of the was entitled to find to the con- jury trary. of wilful and wanton the board was guilty

Plaintiff contends employees appropri its to disseminate failing through misconduct being injured ate information condition plaintiff’s prevent about the However, contrary, as he believed imply jury was. verdicts can cause of proximate and no such failure to disseminate be held testimony Griffin’s indicated injuries as a matter of law. plaintiff’s situation, not though regrettably much awareness more familiar It Griffin was enough prevent injury. appears exten with more often and situation and dealt who testified. Plaintiff’s than other sively any employee much as admit ninth-grade health does not disclose as Griffin record decide whether Griffin’s or ted knew. We need not plaintiff’s parents as whether inquire directly nurse’s failure to would have any activity placed there were restrictions misconduct; appar finding jury of wilful and wanton supported in that jury’s finding regard ently contrary, concluded did judge a matter of We conclude the trial not not erroneous as law. err in verdicts as to counts two and entering judgment jury three. reasons, of the circuit court of

For foregoing Randolph is affirmed. County

Affirmed.

EARNS, P.J., concurs. EASSERMAN, dissenting:

JUSTICE I respectfully dissent. be held liable recognizes, may a school district the majority

As known, is or which providing equipment ordinary (Gerrity v. known, dangerous. been defective or should have Evidence ad 1326.) Beatty (1978), 71 Ill. approxi it climb (1) necessary established that: trial mitted at scoreboard; the let (2) to install letters on the feet in order mately ordinarily installed on the scoreboard were individually ters were installing pockets person carried to the scoreboard up a with a portable scaffold them; although possessed the school (3) rail, inconveniently located scaffold platform upper and an storage shed; (4) plaintiff history epilepsy that could have found jury properly Since a school district was aware. have known the school knew should the administrators letters on a while possible danger installing lofty individual scoreboard ladder, jury properly on a could have found of its care to direct guilty ordinary by failing breach in an location. placed particularly scaffold be accessible This true in view of known history epilepsy.

After most I viewing plaintiff, favorable n.o.v. as to count I of must conclude that of a entry judgment plain- complaint tiff’s I would therefore improper. reverse the trial court and reinstate the verdict. ILLINOIS,

THE THE PEOPLE OF STATEOF Plaintiff-Appellee, v. GULLY, ALLEN Defendant-Appellant. LEON Fifth District No. 5-85-0661 17, 1986. Opinion filed December