The opinion of the court was delivered by: Justice Gallagher
Appeal from the Circuit Court of Cook County Honorable Sophia H. Hall, Judge Presiding.
On October 17, 1994, plaintiffs, Kathleen Grandalski, a minor, by Katherine Grandalski, her mother and next friend, and Dennis Grandalski, the minor plaintiff's father, filed a three-count complaint against defendant school district seeking damages for injuries sustained by the minor plaintiff, Kathleen Grandalski (Kathleen). After the trial court granted two prior motions to dismiss, the plaintiffs filed a second amended complaint. Count I of the second amended complaint alleged negligence on the part of the school district for failing to provide a hand belt as a safety device and for the care and treatment rendered to Kathleen after the accident. Count II alleged willful and wanton misconduct for failing to provide the safety equipment, failing to prevent Kathleen from performing the "flip-flop," and for the care and treatment rendered to her after the accident. Count III sought reimbursement of medical expenses pursuant to the Rights of Married Persons Act (Family Expense Act) (750 ILCS 65/15 (West 1994)). On June 16, 1997, the trial court dismissed, with prejudice, plaintiffs' second amended complaint based upon the immunity afforded under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1--101 et seq. (West 1994)).
On March 25, 1994, Kathleen Grandalski was injured when she fell on her head while performing a gymnastics maneuver during a physical education class at Lyons Township High School. At the time of her injury, Kathleen was a 15-year-old student. The class in which she was enrolled was a basic, introductory physical education class, which involved only basic gymnastics exercises. Kathleen, however, had begun gymnastics training herself at the age of three years old and was participating in park district gymnastics competitions by the time she was five or six years old. The gymnastics maneuver that Kathleen was performing when she was injured is known as a "flip-flop." At the time of her injury, Kathleen had the ability to confidently execute an unassisted flip-flop. She had learned to do a flip-flop, on her own, without a spotter, by the time she was seven or eight years old.
The class during which Kathleen was injured was on the last day for the grading period. The teacher was engaged with other students just before the end of the class. By that time, Kathleen had already been tested and had completed the requirements for the class. She began to perform gymnastics maneuvers on her own in another area of the gym. Kathleen successfully performed a flip-flop. The teacher observed Kathleen's successful performance. When Kathleen attempted another flip-flop, she was unsuccessful and fell on her head. After the fall, Kathleen sat up on the mat. The teacher attended to Kathleen and also had another student press the emergency button to summon the school nurse. Kathleen complained of pain. The teacher stayed with Kathleen until the school nurse came.
When the nurse arrived, Kathleen was still complaining of pain. The nurse conducted a routine examination, observing Kathleen's breathing, pulse and pupils, and concluded all three were normal. She also determined that Kathleen could move her extremities and that she was not feeling any tingling or numbness. Based upon this examination, Kathleen was taken to the nurse's office in a wheelchair and her mother was notified. Kathleen's mother then took her to an emergency room where Kathleen was diagnosed as having a cervical fracture. She was transferred by ambulance to Northwestern Memorial Hospital, where she eventually underwent a cervical fusion. AnalysisPlaintiffs raise several arguments as to why defendant is not immune from liability under the Tort Immunity Act. Our standard of review is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993). Section 3--108(a) of the Tort Immunity Act
Section 3--108(a) of the Tort Immunity Act provides in pertinent part:
"Except as otherwise provided by this Act *** neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property." 745 ILCS 10/3--108(a)(West 1994).
Plaintiffs contend that this section of the Tort Immunity Act does not bar their claim because "they are not alleging that the school district was negligent in failing to supervise the gymnastics class" but instead claim they are alleging that the school district breached a separate and distinct duty to "provide adequate and safe equipment." A review of plaintiffs' complaint and their briefs filed in this appeal unequivocally indicates that plaintiffs are alleging and arguing that the school district was negligent in failing to supervise the gymnastics class. While plaintiffs may truly believe that their allegations concern a school district's duty to provide safe and adequate equipment, they have failed to distinguish this duty from a teacher's separate and distinct duty to supervise. The decision to require a student to use a particular piece of equipment falls under the teacher's duty to supervise. The decision to provide the equipment in the first instance is that of the school district. We will discuss the school district's duty to provide safe and adequate equipment later in this opinion.
The Illinois Supreme Court recently interpreted section 3--108(a)'s applicability to a teacher's supervision in another case involving an injured student who sued a school district. Henrich v. Libertyville High School, No. 84094 (Ill. December 3, 1998). The plaintiffs in Henrich alleged willful and wanton misconduct on the part of the school district for requiring plaintiff to participate in a water basketball game with an allegedly rough player, knowing that plaintiff had a lower back condition and had been permanently restricted by his surgeon from participating in contact sports. The Henrich court held that the plain language of section 3--108(a) of the Tort Immunity Act immunizes a public school district and public school teachers from liability for an injury caused by either negligent or willful and wanton misconduct. Henrich, slip. op. at 11. In view of that plain language, the court concluded that it was not required to consider whether the School Code (105 ILCS 5/1--1 et seq. (West 1994)), which does not immunize willful and wanton misconduct, was more specific than section 3--108(a) of the Tort Immunity Act. As the Henrich court explained, "to hold that section 24--24 of the School Code controlled the Disposition of [allegations of willful and wanton misconduct] would effectively delete the explicit language in section 1--206 of the Tort Immunity Act that applies section 3--108(a) to school districts." Henrich, slip op. at 11. While the holding in Henrich would seem to dispose summarily of the issues in the present case concerning any allegations of willful and wanton conduct with respect to the teacher's supervision*fn1 of Kathleen, plaintiffs here have raised arguments and cited to other sections of the Tort Immunity Act that were not at issue in Henrich. Section 2--202 of the Tort Immunity Act
Despite Henrich's holding that the express language of section 3--108(a) provides blanket immunity to a public school district, even for willful and wanton misconduct, plaintiffs attempt to circumvent this blanket immunity by way of section 2--202 of Tort Immunity Act. That section provides, in pertinent part, that "[a] public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct." 745 ILCS 10/2--202 (West 1994). Plaintiffs contend that the teacher was "executing or enforcing" a law pursuant to section 2--202, that the "law" she was enforcing was section 24--24 of the School Code, and therefore, the school district is liable for the teacher's alleged willful and wanton conduct because it is not immunized by section 2--202. While it is true that the provisions of the Tort Immunity Act must be construed together, plaintiffs' argument is incorrect, as previous decisions have held section 2--202 as being insufficient to circumvent blanket immunity that is provided by another section of the Tort Immunity Act. See Barnett v. Zion Park District, 171 Ill. 2d 378, 665 N.E.2d 808 (1996); Jamison v. City of Chicago, 48 Ill. App. 3d 567, 570, 363 N.E.2d 87, 89 (1977).
In Barnett, the estate of a pool patron who drowned brought suit against the park district which owned and operated the swimming pool, alleging, among other things, willful and wanton misconduct on the part of the lifeguards. While the court ultimately decided that, pursuant to section 3--108(a), "the legislature must have intended to immunize liability for both negligence and willful and wanton misconduct" (Barnett, 171 Ill. 2d at 391-92, 665 N.E.2d at 815), the court first explained that "[s]section 2--202 is not a general exception to all of the other immunities established by the Tort Immunity Act." Barnett, 171 Ill. 2d at 390, 665 N.E.2d at 814. The Barnett court clearly and unequivocally rejected the argument that the language "[e]xcept as otherwise provided by this Act" contained in section 3-108(a) incorporated the more limited immunity of a different section of the Tort Immunity Act, namely section 2--202, which did not immunize willful and wanton misconduct, and therefore, rendered section 3-108(a)'s immunity inapplicable to willful and wanton misconduct. Barnett, 171 Ill. 2d at 389-91, 665 N.E.2d 808. As the Barnett court explained, "[t]he plain language of section 3-108 is unambiguous." Barnett, 171 Ill. 2d at 391, 665 N.E.2d at 814; see also Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 381, 687 N.E.2d 1042, 1048 (1997) (immunities provided in the Tort Immunity Act operate independently of one another).Interestingly, plaintiffs only mention Barnett in passing in an attempt to distinguish it by contending that in the present case "plaintiffs are not alleging that defendant was negligent in failing to supervise the gymnastics class." As we have already discussed, this contention is inaccurate. In any event, plaintiffs' endeavor to import the School Code back into the analysis through the use of section 2--202 is an attempt to contravene the Illinois Supreme Court's concern that a court's holding should not "effectively delete the explicit language in section 1--206 of the Tort Immunity Act that applies section 3--108(a) to school districts." Henrich, slip op. at 11. Section 24--24 of the School Code is Not a "law" Covered by Section 2--202 of the Tort Immunity Act
Assuming arguendo that section 2--202 did provide an exception to the blanket immunity provided by section 3--108(a), we disagree with plaintiffs' characterization of section 24--24 of the School Code as a law to be executed or enforced and their contention that the teacher here was acting "in the enforcement or execution of the law." The phrase "executing or enforcing any law" contained in section 2--202 is not limited to law enforcement activities performed by police officers and the like, but instead "clearly applies to any and all public employees, and any act or omission by them in the execution or enforcement of any law." (Emphasis added.) Arnolt v. City of Highland Park, 52 Ill. 2d 27, 34, 282 N.E.2d 144, 148 (1972). While section 24--24 of the School Code can be characterized as a law and it does provide teachers with supervisory authority over students, it is not a law that is enforced in the sense contemplated by section 2--202. Contra, Mancha v. Field Museum of Natural History, 5 Ill. App. 3d 699, 703, 283 N.E.2d 899, 903 (1972) (defendants were enforcing the School Code in maintaining discipline which included the supervision of the movement of the children in a school-related activity). Rather, section 24--24 of the School Code is a codification that grants to or confers on educators and school districts the same immunity that parents enjoy with respect to suits by their children. See, e.g., Henrich, slip op. at 6. While the statute does not confer immunity for willful and wanton misconduct, neither was it intended to "create" liability for such alleged conduct. Rather, the statute "grants educators the immunity that parents enjoy." See Henrich, slip op. at 6.
In Barnett, the court concluded that the "lifeguards were not executing or enforcing a law in any sense." Barnett, 171 Ill. 2d at 391, 665 N.E.2d at 814; see also Aikens v. Morris, 145 Ill. 2d 273, 285, 583 N.E.2d 487, 493 (1991) ("Arguably, *** the performance of any task while on duty is in enforcement or execution of the law. We do not believe, however, *** that the legislature intended such a result"). The Barnett court noted that neither the public health regulations nor their enabling statute prescribed how the lifeguards should supervise a swimming pool. Barnett, 171 Ill. 2d at 391, 665 N.E.2d at 814. That reasoning applies with equal force to the present case. Similar to the lifeguards in Barnett, the teacher here was not executing or enforcing a law in any sense, since section 24--24 of the School Code also does not prescribe how the teachers should maintain discipline. While it is true that the statute states that teachers stand in the relation of parents to pupils, the undisputed facts show that Kathleen's parents, like the teacher here, had allowed her to perform the gymnastics maneuver in question. In view of our supreme court's holdings in Barrett and Henrich, we conclude that since neither section 24--24 of the School Code nor section 2--202 of the Tort Immunity Act, individually, can be construed so as to defeat the immunity intended by the legislature as provided by the plain language of section 3--108(a), the same holds true when section 24--24 of the School Code and section 2--202 of the Tort Immunity Act are raised jointly. School District's Independent Duty To Provide Safety EquipmentWe next address plaintiffs' argument that the school district breached its duty to provide adequate and safe equipment. The only allegation that relates to the direct, rather than vicarious, liability of the school district would be plaintiffs' allegation that defendant was negligent because it "[f]ailed to provide a hand belt as a safety device for students who were engaged in gymnastics as part of their physical education class thereby creating an unreasonable risk of head and neck injury." In support of their argument, plaintiffs cite Palmer v. Mt. Vernon Township High School District 201, 169 Ill. 2d 551, 662 N.E.2d 1260 (1996), Lynch v. Board of Education of Collinsville Community Unit District No. 10 , 82 Ill. 2d 415, 412 N.E.2d 447 (1980), and Gerrity v. Beatty, 71 Ill. 2d 47, 373 N.E.2d 1323 (1978). These cases, however, discussed the immunity and duties of school districts under the School Code, but their analyses did not involve the Tort Immunity Act. See McGurk v. Lincolnway Community School District No. ...