The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Arthur A. Sullivan, Judge Presiding.
Plaintiff, Elgia (Lee) Trotter, Jr., brought this wrongful death action against defendants, School District 218 (District 218) and Dale Janssen (Janssen) following the drowning death of his 14-year-old son, Nathaniel, during freshmen swimming class at Richards High School. Plaintiff's amended complaint contained three counts. Counts I and II of plaintiff's amended complaint sought damages for willful and wanton conduct pursuant to the Wrongful Death Act, (740 ILCS 180/1 et seq. (West 1996)). Count III sought damages for funeral expenses. Defendants claimed immunity from any liability under section 3-108 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) ( 745 ILCS 10/1-101 et seq. (West 1996)). Defendants also argued for summary judgment in that plaintiff failed to show willful and wanton conduct and that defendants were entitled to discretionary public official immunity.
The trial court made two separate rulings. The trial court first found that defendants were not entitled to immunity under section 3-108(a) of the Tort Immunity Act for the alleged willful and wanton supervision of Nathaniel during swimming class. 745 ILCS 10/3-108(a) (West 1996). The trial court, however, certified the following questions for interlocutory appeal under Supreme Court Rule 308 (155 Ill. 2d R. 308):
"(1) Whether section 3-108 immunity can be used by defendants to immunize what is alleged to be willful and wanton conduct by a certified teacher in the supervision of a required physical education swimming class in light of the [S]chool [C]ode and doctrine of in loco parentis immunity;
(2) Are the actions of non-certified student guard, under the supervision of a certified teacher, entitled to section 3-108 immunity[?]"
We allowed leave to appeal these certified questions under Supreme Court Rule 308. 155 Ill. 2d R. 308.
The trial court's second set of orders subject to this appeal granted defendants' summary judgment motion in part as to six allegations within plaintiff's amended complaint and denied plaintiff's motion to file a second amended complaint. The court found that plaintiff failed to present evidence of willful and wanton conduct as a matter of law on three of those allegations and that defendants were entitled to "discretionary/public official immunity" on the remaining three allegations. 745 ILCS 10/2-201 (West 1996). The trial court made its order granting partial summary judgment to defendants final and appealable under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). The court also denied plaintiff's motion to file a second amended complaint and found no just reason to delay appeal of this order. Plaintiff therefore appeals from the orders granting partial summary judgment in favor of defendants and denying his motion to file a second amended complaint. We have jurisdiction under Supreme Court Rule 304(a). 155 Ill. 2d R. 304(a).
We answer both certified questions in the affirmative and, accordingly, reverse the trial court's denial of summary judgment for the defendants on the issue of defendants' immunity under preamended section 3-108 of the Tort Immunity Act. We find defendants are entitled to immunity under preamended section 3-108 for the allegations in plaintiff's amended complaint of willful and wanton misconduct in the supervision of a physical education swimming class under the preamended Tort Immunity Act which applies to this case. We also affirm the trial court's grant of summary judgment to the defendants on paragraphs 10(f),(g),(i), (j) and (k) of plaintiff's amended complaint. We reverse the trial court's grant of summary judgment under section 2-201 of the Tort Immunity Act but find the conduct alleged in paragraph 10(l) is entitled to immunity under preamended section 3-108.
A. Background of Swimming Instructor and Student Guards
Ron Kyler, School District 218's curriculum director of physical education, health and driver's education, hired Dale Janssen to teach "Swim I" or freshman swimming class at Richards High School for the 1991-92 school year. Kyler knew that Janssen lacked certifications in water safety and life guarding through the American Red Cross. No other swimming instructors lacked these certifications. Kyler believed Janssen was qualified to teach Swim I because he had a physical education teaching certificate, had taken a class in cardiopulmonary resuscitation (CPR) , and was motivated and intelligent.
In August 1991, Janssen suffered an injury to his knee and had surgery. He was released from his doctor's care in October of 1991 and completed physical therapy in October of 1991. Janssen further testified that he resumed normal walking in October of 1991 and went swimming in November of 1991.
Swimming coach and teacher Tom Newton sponsored a student guard club that consisted of experienced student swimmers. Newton assigned student guards to various freshman swimming classes. The student guards were not lifeguards but acted as an extra set of eyes. They helped oversee swimming class and were required to alert the teacher if a problem arose. Newton assigned Lauren Krastin and Jill Styx to guard the class that Nathaniel attended and to assist Janssen. While both Krastin and Styx were freshman and on the freshman swimming team, neither had any training in life guarding or water safety. Janssen did not know whether Krastin and Styx had any training or water safety certifications before they became students guards in his freshman swimming class.
Before Nathaniel's death, he had completed exercises in floating and swimming. The day before his drowning, Nathaniel completed a 25-yard freestyle swim of the pool. Janssen then found Nathaniel qualified to swim in the deep end of the pool and use the diving board during free swim. Janssen, however, gave Nathaniel a poor grade for his freestyle swim and noticed that Nathaniel was slow and appeared tired from the freestyle swim.
On January 8, 1992, during swimming class, while Janssen was testing the girls of the swimming class, the boys were assigned to free swim. Janssen first learned of trouble when a student stated that "Nate is in trouble." Janssen looked toward the deep end and observed Nathaniel facedown below the surface. Janssen initially thought that Nathaniel may be performing a front float, but the student insisted that Nathaniel was in trouble. Janssen then began to walk to the deep end and saw Krastin jump into the pool.
Krastin testified at her deposition that she first believed that Nathaniel was in trouble when she saw him at the bottom of the pool in the deep end. She attempted to get a life buoy or flotation device but it was tangled and then, to avoid any further delay, jumped into the pool without any flotation devises. Styx saw Nathaniel bob up and down three times before she believed that Nathaniel was in trouble. A student attempted to get a "shepherd's crook" over to Nathaniel but he was unable to grab it, and he began to submerge into the water. Styx saw Krastin jump into the pool first and when she was having trouble retrieving Nathaniel, she jumped in to help pull Nathaniel out of the water. Once Nathaniel was brought to the surface, Janssen, standing at the deck, also assisted in getting Nathaniel out of the water. Janssen then administered CPR.
C. Condition of Pool Safety Equipment
The record reflects that the pool was equipped with the following safety equipment: two buoys, two rings, and two shepherd's crooks. As stated above, a student attempted to get one of the shepherd's crooks to Nathaniel but Nathaniel was unable to grab it. Krastin testified that the ring and buoy were tangled together and she did not have time to untangle them before attempting to rescue Nathaniel. Tom Newton testified that the flotation device would not have been tangled the day before the drowning accident because he routinely checked the equipment, and, if anything were tangled, he would have untangled it. School District 218 did not maintain rafts in the pool area.
D. Rulings of the Trial Court
Defendants moved for summary judgment, claiming immunity from liability under sections 3-108, 1-202, 2-109, 2-201, 3-106 of the Tort Immunity Act. 745 ILCS 10/3-108; 1-202; 2-109; 2-201; 3-106 (West 1996). Defendants also asserted that, for any of plaintiff's allegations not subject to the Tort Immunity Act, plaintiff failed to present evidence of willful and wanton conduct. On July 1, 1996, the trial court denied defendants' motion for summary judgment based on preamended section 3-108. Relying on Kobylanski v. Chicago Board of Education, 63 Ill. 2d 165 (1976), the trial court determined that sections 24-24 and 34-84a of the School Code (105 ILCS 5/24-24; 34-84a (West 1996)) did not immunize physical education instructors for willful and wanton misconduct in the supervision of students and preamended section 3-108 of the Tort Immunity Act did not alter this lack of immunity.
On July 12, 1996, the defendants moved for reconsideration of the trial court's denial of their motion for summary judgment based on preamended section 3-108(a) and additionally moved for a ruling on defendants' other grounds for summary judgment in their original motion. On August 13, 1996, the trial court denied defendants' motion for reconsideration, but granted defendants' motion for summary judgment in part. The court found that plaintiff did not present evidence of material facts to support his allegations of willful and wanton conduct in paragraphs 10(f), 10(i), and 10(j) of his amended complaint and accordingly entered judgment in favor of defendants regarding these allegations. The court further found that section 2-201 of the Tort Immunity Act provided defendants with immunity from the allegations in paragraphs 10(g), 10(k), and 10(l) of plaintiff's amended complaint and entitled defendants to summary judgment regarding these allegations as well. 745 ILCS 10/2-201 (West 1996).
On August 23, 1996, the trial court granted defendants' motion under Supreme Court Rule 308 (155 Ill. 2d R. 308) and certified, for interlocutory review, the two questions as previously noted, which involve the scope of immunity under preamended section 3-108(a) of the Tort Immunity Act (745 ILCS 10/3-108(a) (West 1996)) in relationship to sections 24-24 and 34-84a of the School Code (105 ILCS 5/24-24, 34-84a (West 1996)). The trial court also denied plaintiff's motion for leave to file a second amended complaint that attempted to add a fourth count under the special duty doctrine. This appeal then followed.
I. Trial Court's Certified Questions ...