The opinion of the court was delivered by: Justice Fitzgerald
The plaintiffs, Jeremy Arteman and his father Steve Arteman, filed a personal injury complaint against the Clinton Community Unit School District No. 15 (the School District), alleging, inter alia, that the School District was negligent in failing to provide roller-blade safety equipment for Jeremy's physical education class. The School District moved to dismiss this complaint, asserting that it was entitled to immunity under sections 2-201 and 3-108(a) of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/2-201, 3-108(a) (West 2000)). The De Witt County circuit court granted the School District's motion to dismiss, but the appellate court reversed (317 Ill. App. 3d 453).
The central issue in this case is whether the plaintiffs' allegations that the School District negligently failed to provide safety equipment fell within the protective scope of the discretionary immunity provided by section 2-201 of the Act. We reverse the appellate court and affirm the circuit court.
Count I of the plaintiffs' four-count complaint charged the School District with negligence. According to the plaintiffs, the School District required all high school students to take a physical education class. On March 20, 1998, the students in Jeremy's physical education class were expected to run laps or use roller blades on the wooden gym floor under the supervision of two teachers. The students opting to roller blade paid $7, and the School District provided roller blades with a toe brake, which the plaintiffs characterized as an experimental design. The School District did not provide safety equipment such as shin guards, elbow guards, knee guards, helmets, or gloves. Jeremy chose to roller blade. During class, he fell and broke two bones in his right leg. The plaintiffs asserted that the School District was negligent because it:
"a. Failed to provide the necessary safety equipment for rollarblading [sic] such as but not limited to helmets, shinguards, kneeguards, elbow pads;
b. Failed to provide rollarblades [sic] that were suitable for their intended use."
According to the plaintiffs, this purported negligence caused Jeremy's injury. The plaintiffs' complaint also included a "Wilful and Wanton Misconduct" count which tracked the allegations of the negligence count, as well as two corresponding counts under the Rights of Married Persons Act (750 ILCS 65/15 (West 2000)).
The School District filed a motion to dismiss, contending that sections 2-201 and 3-108(a) of the Act defeated the plaintiffs' claims. The trial court dismissed the plaintiffs' complaint, holding that section 3-108(a), which provides immunity from claims alleging a failure to supervise, applied and that the plaintiffs failed to allege sufficient facts to establish willful and wanton misconduct, an exception to section 3-108(a) immunity.
The appellate court held that section 3-108(a) did not apply because the plaintiffs' complaint did not involve allegations that the School District failed to supervise Jeremy. 317 Ill. App. 3d at 456. Instead, the appellate court characterized the gist of the plaintiffs' complaint as negligent failure to provide appropriate equipment. 317 Ill. App. 3d at 456. The appellate court discussed discretionary immunity and observed that "section 2-201 of the Act-standing alone-would provide immunity to the School District in this case." 317 Ill. App. 3d at 458. However, the appellate court noted that in Gerrity v. Beatty, 71 Ill. 2d 47 (1978), Lynch v. Board of Education of Collinsville Community Unit District No. 10, 82 Ill. 2d 415 (1980), and Palmer v. Mt. Vernon Township High School District 201, 169 Ill. 2d 551 (1996), this court "recognized a cause of action for a school district's failure to fulfill its independent duty to provide appropriate safety equipment to students." 317 Ill. App. 3d at 459-60. The appellate court reasoned that the policy considerations outlined in Gerrity and its progeny, which militated against immunity under the School Code, applied with equal force to immunity under the Act. 317 Ill. App. 3d at 460. The appellate court hesitantly concluded that section 2-201 did not defeat the plaintiffs' claims, reversing and remanding "in the hope that the supreme court, in this case or some other, will address the immunities and duties of school districts under the Act." 317 Ill. App. 3d at 460.
We granted the plaintiffs' petition for leave to appeal. See 177 Ill. 2d R. 315. *fn1
Section 2-619(a)(9) of the Code of Civil Procedure permits involuntary dismissal where "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 1998). Affirmative matter in this context means a defense which negates the plaintiff's cause of action. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 486 (1994); see Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993). Immunity under the Act is affirmative matter properly raised in a section 2-619(a)(9) motion to dismiss. Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995). Our review of a section 2-619 dismissal is de novo. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997).
We frequently have discussed the history of sovereign immunity in Illinois, and we need not reiterate it at length here. The 1970 Illinois Constitution abolished sovereign immunity, except as the General Assembly may provide (see Ill. Const. 1970, art. XIII, §4), and the legislature exercised this prerogative by retaining the 1965 Local Governmental and Governmental Employees Tort Immunity Act. Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 344 (1998); see Epstein, 178 Ill. 2d at 375. The Act serves to protect local public entities, including school boards and school districts (745 ILCS 10/1-206 (West 1998)), and public employees from liability arising from the operation of government (745 ILCS 10/1-101.1(a) (West 1998)). By providing immunity, the General Assembly sought to prevent the dissipation of public funds on damage awards. Bubb, 167 Ill. 2d at 378.
The Act grants only immunities and defenses. 745 ILCS 10/1-101.1(a) (West 1998). That is, the Act does not create duties, but merely articulates which of the delineated immunities apply to certain common law duties. Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 412 (1991); see Epstein, 178 Ill. 2d at 381 ("The legislature, in the Tort Immunity Act, adopted the general principle that local governmental units are liable in tort, `but limited this with an extensive list of immunities based on specific government functions' [citations]"). Accordingly, whether a local public entity owed a duty of care and whether that entity enjoyed immunity are separate inquiries. Barnett v. Zion Park District, 171 Ill. 2d 378, 388 (1996). Once we determine a duty exists, we must then address whether the Act applies. See Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001).
The School District contends that the appellate court erred in concluding the duty we recognized in Gerrity defeated immunity under the Act. Before deciding whether the Act provides immunity, we must discuss the School Code immunity provisions as construed by Gerrity and its progeny.
Sections 24-24 and 34-84a of the School Code direct teachers and other educational employees to maintain discipline in schools. These sections also provide, "In all matters relating to the discipline in and conduct of the schools and the school children, [educators] stand in the relation of parents and guardians to the pupils." 105 ILCS 5/24-24, 34-84a (West 2000). Accordingly, these sections grant educators the same immunity enjoyed by parents. Henrich v. Libertyville High School, 186 Ill. 2d 381, 388 (1998). In Kobylanski v. Chicago Board of Education, 63 Ill. 2d 165, 173 (1976), we held that "sections 24-24 and 34-84a confer upon teachers and other certified educational employees immunity from suits for negligence arising out of `matters relating to the discipline in and conduct of the schools and school children.' In order to impose liability against such educators, a plaintiff must prove wilful and wanton misconduct."
We addressed the scope of School Code immunity in Gerrity v. Beatty, 71 Ill. 2d 47 (1978). In Gerrity, a high school student was severely injured while making a tackle during a junior varsity football game. The student filed a personal injury complaint alleging that his school district negligently furnished an ill-fitting and inadequate helmet. The trial court granted the school district's motion to dismiss ...