The opinion of the court was delivered by: Chief Justice Freeman
Opinion filed December 3, 1998.
Sections 24-24 and 34-84a of the School Code (105 ILCS 5/24-24, 34-84a (West 1994)) immunize teachers and certain other educational employees from liability for injuries caused by their negligent supervision of school activities. To recover for such an injury, a plaintiff student must plead and prove that the teacher committed willful and wanton misconduct by such supervision. Kobylanski v. Chicago Board of Education, 63 Ill. 2d 165, 171-73 (1976). Those sections apply equally to public and private schools. See, e.g., Hilgendorf v. First Baptist Church, 157 Ill. App. 3d 428, 429 (1987).
Also, when properly raised, the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) provides an extensive list of immunities to local governmental units, specifically including school districts. 745 ILCS 10/2-106 (West 1994). Section 3-108(a) of the Act immunizes a local public entity or a public employee from liability for an injury caused by a failure to supervise an activity on, or a failure to supervise the use of, any public property. 745 ILCS 10/3-108(a) (West 1994). Section 3-108(a) immunizes local public entities and employees from liability based on both ordinary negligence and willful and wanton misconduct. Barnett v. Zion Park District, 171 Ill. 2d 378, 391-92 (1996). The Tort Immunity Act does not apply to private schools. Cooney v. Society of Mt. Carmel, 75 Ill. 2d 430, 434 (1979).
The question presented for review is which statute's immunity controls in a case involving the failure to supervise public school activities: the immunity provided by the School Code, or the immunity provided by the Tort Immunity Act when properly raised? We hold that in such a case the immunity provided by the Tort Immunity Act controls.
This cause is before us following a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1994)). The motion admits all well-pled allegations in the complaint and reasonable inferences to be drawn from the facts. Fireman's Fund Insurance Co. v. SEC Donahue, Inc., 176 Ill. 2d 160, 161 (1997).
The complaint alleges as follows. On February 14, 1994, plaintiff, Joshua A. Henrich, underwent spine fusion surgery for a lower back medical condition. On September 2, 1994, plaintiff's surgeon advised plaintiff in a letter that he was permanently restricted from participating in "contact sports, such as wrestling and football in gym class at school." On or before January 25, 1995, defendant Libertyville High School District 128 (district) had received a copy of the letter and also had actual knowledge of plaintiff's lower back condition and the permanent restrictions on his activities in physical education class.
On February 2, 1995, plaintiff was a 17-year-old student at Libertyville High School. On that date, a substitute physical education instructor supervised the physical education class at the high school's pool area. The instructor required plaintiff to participate in a game of water basketball. The district knew or should have known that water basketball involved physical contact between the players. While participating in the water basketball game, plaintiff was severely and permanently injured.
Plaintiff brought a personal injury action in the circuit court of Lake County against the district, the high school (collectively, the district), and Justin Burg, a fellow student. Count I of the three-count complaint alleged that the district required, allowed, or failed to prohibit plaintiff's participation in the water basketball game. The district so acted knowing that the game involved physical contact, knowing of plaintiff's medical condition, and knowing of the permanent medical restrictions on his activities due to his medical condition. Count I also alleged that the district allowed Burg to participate in the game knowing that Burg was a particularly rough player. Count I alleged that the district's acts constituted willful and wanton misconduct.
Count II reiterated the above acts and additionally alleged that the district assigned a non-certified or inadequately trained substitute teacher to the physical education class, and failed to adequately supervise the class. Count II alleges that those acts constituted ordinary negligence.
Count III is directed against Burg and alleges negligence. Burg subsequently brought a counterclaim against the district seeking contribution.
The district filed a combined motion to dismiss the complaint. See 735 ILCS 5/2-619.1 (West 1994). The district sought the dismissal of count I on the ground that it failed to state a cause of action for willful and wanton misconduct. See 735 ILCS 5/2-615 (West 1994). The trial court denied this part of the motion.
The district also sought the dismissal of counts I and II on the ground that the district was immune from liability under the Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 1994)). See 735 ILCS 5/2-619(a)(9) (West 1994). The district argued that section 3-108(a) of the Act immunized it from counts I and II. The district also argued that section 3-109 of the Act additionally immunized it from the claims contained in count II. 745 ILCS 10/3-108(a), 3-109 (West 1994).
In separate orders, the circuit court dismissed counts I and II based on the Tort Immunity Act. In dismissing count I, the court expressly found that section 3-108(a) immunized the district from count I. The court also dismissed Burg's counterclaim for contribution against the district. The court noted that count III, directed against Burg, remained pending. The court also found that its orders were final and appealable. See 155 Ill. 2d R. 304.
On appeal, plaintiff contested only the dismissal of count I, which alleged willful and wanton misconduct. The appellate court upheld the dismissal. 289 Ill. App. 3d 809. The court addressed the issue of which statutory immunity controlled the Disposition of count I: section 24-24 of the School Code (105 ILCS 5/24-24 (West 1994)), or section 3-108(a) of the Tort Immunity Act (745 ILCS 10/3-108(a) (West 1994)). The appellate court concluded that the immunity provided by section 3-108(a) of the Act was available to the district. Since that section immunizes willful and wanton misconduct, the appellate court upheld the dismissal of count I. 289 Ill. App. 3d at 817.
We allowed plaintiff's petition for leave to appeal (166 Ill. 2d R. 315). We subsequently granted the Illinois Trial Lawyers Association leave to file an amicus curiae brief in support of plaintiff; we also granted the Chicago Board of Education, the Illinois Association of School Boards, and the Illinois Association of School Administrators leave to file an amicus curiae brief in support of the district. 155 Ill. 2d R. 345. We now affirm the judgment of the appellate court.
Section 2-619(a)(9) of the Code of Civil Procedure permits dismissal where "the claim asserted *** is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 1994). When ruling on a motion to dismiss, the trial court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party. The court should grant the motion only if the plaintiff can prove no set of facts that would support a cause of action. On appeal, review is de novo. In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997).
This controversy centers upon the interpretation of two immunity statutes. Plaintiff contends that section 24-24 of the School Code (105 ILCS 5/24-24 (West 1994)) controls the Disposition of count I. According to plaintiff, since that section does not immunize willful and wanton misconduct, then count I stands. On the other hand, the district contends that section 3-108(a) of the Tort Immunity Act (745 ILCS 10/3-108(a) (West 1994)) controls the Disposition of count I. According to the district, since that section immunizes willful and wanton misconduct, then count I was properly dismissed.
To resolve this issue, we must interpret these two statutes. The primary rule of interpreting statutes, to which all other rules are subordinate, is that a court should ascertain and give effect to the intent of the legislature. The court should seek the legislative intent primarily in the language of the statute. Also, the statute should be evaluated as a whole; the language within each section of a statute must be examined in light of the entire statute. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 91 (1992). When this court has interpreted a statute, that interpretation is considered as part of the statute itself unless and until the legislature amends it contrary to the interpretation. Miller v. Lockett, 98 Ill. 2d 478, 483 (1983); see People v. Woodard, 175 Ill. 2d 435, 443-44 (1997).
Section 3-108(a) of the Tort Immunity Act provides in pertinent part that:
"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).
Further, a " `[l]ocal public entity' includes a *** school district." 745 ILCS 10/1-206 (West 1994). Also, the Act must be raised and pled as an affirmative defense or else it is waived, even if the evidence supports the existence or appropriateness of the defense. Martin v. Chicago Housing Authority, 264 Ill. App. 3d 1063, 1075 (1994); First National Bank v. Village of Mundelein, 166 Ill. App. 3d 83, 90 (1988).
The plain language of section 3-108(a) does not contain an exception for willful and wanton misconduct. Based on this plain language, this court has interpreted section 3-108(a) to immunize willful and wanton misconduct. Barnett, 171 Ill. 2d at 391-92. We note that the School Code was not at issue in Barnett.
In this case, the district raised the affirmative defense of the Tort Immunity Act. The district contends that since it is a local public entity, then section 3-108(a) applies to count I.
At the time this cause arose, section 24-24 of the School Code, which applies to cities with a population of less than 500,000, and section 34-84a of the Code, which applies to cities with a population of greater than 500,000, provided in pertinent part that:
"[t]eachers and other certificated educational employees shall maintain discipline in the schools, including school grounds which are owned or leased by the board and used for school purposes and activities. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program, including all athletic and extracurricular programs, and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians." 105 ILCS 5/24-24, 34-84a (West 1994).
By its plain language, section 24-24 confers on educators the status of parent or guardian to their pupils. Therefore, this statute grants educators the immunity that parents enjoy (Kobylanski, 63 Ill. 2d at 170-73), and which school districts vicariously enjoy (Sidwell v. Griggsville Community Unit School District No. 4, 146 Ill. 2d 467, 472-73 (1992)).
Section 24-24 of the School Code confers on teachers in loco parentis status in all matters relating to the supervision of students in school activities. This court has interpreted section 24-24 to immunize ordinary negligence, but not to immunize willful and wanton misconduct. Gerrity v. Beatty, 71 Ill. 2d 47, 50 (1978); Kobylanski, 63 Ill. 2d at 171-73. This interpretation is keyed to the rule that parents are not liable to their children for ordinary negligence, but are liable for willful and wanton misconduct. Thomas v. Chicago Board of Education, 77 Ill. 2d 165, 171 (1979); Kobylanski, 63 Ill. 2d at 170.
We note that this court has narrowed parental immunity to cover only ordinary negligence arising from conduct that is inherent to the parent-child relationship; i.e., conduct that concerns parental discretion in discipline, supervision, and care of the child. Absent such conduct, a child may recover from a parent for negligence. Cates v. Cates, 156 Ill. 2d 76, 104-05 (1993). As a result of Cates, the educator immunity provided by section 24-24 of the School Code is accordingly narrowed. See Cates, 156 Ill. 2d at 110-11 (Miller, C.J., Dissenting); Stiff v. Eastern Illinois Area of Special Education, 279 Ill. App. 3d 1076, 1080-81 (1996).
Plaintiff contends that since this cause arose from the supervision of students in a school physical education program, then section 24-24 applies to count I.
This court has noted that the immunity provided by section 24-24 of the School Code did not derive from the immunity provided by the Tort Immunity Act. Kobylanski, 63 Ill. 2d at 174. This has indicated to the appellate court that section 24-24 of the School Code and section 3-108(a) of the Tort Immunity Act are to be interpreted as two independent statutes. Lewis v. Jasper County Community Unit School District No. 1, 258 Ill. App. 3d 419, 421 (1994); Bowers v. Du ...