Appeal from the Circuit Court for the 12th Judicial Circuit Will County, Illinois. No. 96-L-1734. Honorable William McMenamin Judge, Presiding.
Rule 23 Order Redesignated Opinion and Ordered Published April 18, 1997. As Modified Upon Denial of Petitions for Rehearing April 18, 1997. Released for Publication May 30, 1997.
Present - Honorable Tom M. Lytton, Presiding Justice, Honorable William E. Holdridge, Justice, Honorable Peg Breslin, Justice. Justice Lytton delivered the opinion of the court. Holdridge, J., concur. Breslin, J., dissenting.
The opinion of the court was delivered by: Lytton
MODIFIED UPON DENIAL OF PETITIONS FOR REHEARING
The Honorable Justice LYTTON delivered the opinion of the court:
Berenice N. McGurk, as guardian of her disabled son, Michael, filed suit alleging that Lincolnway Community School District # 210 was negligent in furnishing and modifying Michael's football helmet. The school district filed a motion to dismiss, alleging that it is immune from suit under the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act). 745 ILCS 10/2-101 et seq. (West 1992). The trial judge denied the motion, but permitted the district to appeal pursuant to Supreme Court Rule 308. 134 Ill. 2d R. 308.
Plaintiff's complaint alleged that the negligence of Lincolnway Community High School District resulted in the severe and permanent closed head injuries that Michael sustained during a football game. Specifically, plaintiff alleged that the school district breached its duty to exercise ordinary care when it furnished Michael with an "All American MaxPro Model 2001" football helmet, but subsequently modified the helmet by removing the Shockblocker II safety system and replacing it with a static face guard.
On appeal, the central issue is whether the Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 1994)) immunizes high school districts from alleged acts of negligence pertaining to the providing of athletic equipment to students. We hold that the Tort Immunity Act provides such immunity.
In Gerrity v. Beatty, 71 Ill. 2d 47, 51-53, 373 N.E.2d 1323, 1325-26, 15 Ill. Dec. 639 (1978), the supreme court held that the in loco parentis provision of sections 24-24 and 34-84a of the School Code (then Ill. Rev. Stat. 1973, ch. 122, pars. 24-24, 34-84a, now 105 ILCS 5/24-24, 34-84a (West 1994)) did not immunize school districts from the duty to exercise ordinary care in providing students with equipment for athletic activities. In Lynch v. Board of Education of Collinsville Community Unit District No. 10, 82 Ill. 2d 415, 412 N.E.2d 447, 45 Ill. Dec. 96 (1980), the supreme court clarified the nature of this duty:
"* * * 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." Lynch, 82 Ill. 2d at 434-35, 412 N.E.2d at 459.
Recently, in Palmer v. Mt. Vernon Township High School District 201, 169 Ill. 2d 551, 662 N.E.2d 1260, 215 Ill. Dec. 120 (1996), the supreme court again reaffirmed the existence of a school district's duty to exercise ordinary care; however, the court also noted the limits of school districts' obligations:
"The school district had an obligation to provide to all students, including [plaintiff], the safety equipment that was reasonably necessary in order to protect players from reasonably foreseeable, serious bodily injury. * * * We decline [plaintiff's] invitation to impose upon the school district a duty to warn students that they should purchase and wear safety equipment * * *." Palmer, 169 Ill. 2d at 560, 662 N.E.2d at 1264.
It is important to note that Gerrity, Lynch and Palmer addressed the immunity and duties of school districts under the School Code; none of these cases pertained to the Tort Immunity Act.
Plaintiff contends that these decisions are antithetical to the application of the Tort Immunity Act. Specifically, plaintiff argues that if we were to hold that the Tort Immunity Act applies in cases such as this, we would be effectively ...