The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Plaintiff, thirteen-year-old Ann-Claire Karalyos, a citizen of Canada, filed a nine-count complaint after suffering spinal injuries when she was instructed to dive into a pool while attending a swimming and diving program at Lake Forest High School.*fn1 Lake Forest High School now moves to dismiss Plaintiff's claims pursuant to Rule 12(b)(6) alleging that as a municipal corporation it, as well as its employees, are immune from liability under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq. For the following reasons, Defendant's motion to dismiss is denied.
To state a claim under federal notice pleading standards, all the complaint must do is set forth a "short and plain statement of the claim showing that the pleader is entitled to relief.." FED. R. CIV. P. 8(a)(2). Factual allegations are accepted as true and need only give "fair notice of what the.claim is and the grounds upon which it rests." E.E.O.C. v. Concentra Health Serv., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007). However, the plaintiff's "allegations, [must] show that it is plausible, rather than merely speculative, that he is entitled to relief." Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1945-50 (2009). Legal conclusions, unsupported by alleged underlying facts, are not entitled to the "assumption of truth." Id. at 1951. The application of the standard is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009), quoting Iqbal, 129 S.Ct. at 1950.
Defendants contend that the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq ("Tort Immunity Act" or "Act"), shields them from liability and requires a dismissal of Plaintiff's Amended Complaint.
The Illinois legislature enacted the Tort Immunity Act to protect local public entities from liability arising from the operation of government. 745 ILCS 10/101, et seq; Arteman v. Clinton Cmty. Unit Sch. Dist. No. 15, 763 N.E.2d 756, 760 (Ill. 2002). The Act did not create new duties but instead, codified those duties already existing at common law and provided immunities for certain governmental activities. In re Chicago Flood Litig., 680 N.E.2d 265, 271 (Ill. 1997) ("[G]overnmental units are liable in tort on the same basis as private tortfeasors unless a tort immunity statute imposes conditions upon that liability.").
A court must therefore determine if a duty is owed and only then whether the activity is protected by the Act. Arteman, 763 N.E.2d at 760. Because the Act was enacted in derogation of common law, it should be strictly construed. Van Meter v. Darien Park Dist., 799 N.E.2d 273, 279 (Ill. 2003). As a federal judge sitting in diversity I apply the substantive law of Illinois, as I believe the highest court in the state would apply it. Ass'n Benefit Servs., Inc., v. Caremark RX, Inc., 493 F.3d 841, 849 (7th Cir. 2007).
The Illinois Supreme Court has determined that governmental entities operating swimming pools or public bathing areas owe a common law duty of reasonable care to its users. Barnett v. Zion Park Dist., 665 N.E.2d 808, 812 (Ill. 1996). Having established that a duty is owed, I must now determine whether the Act shields Defendants from liability. Defendants assert that Sections 2-201, 3-106, and 3-108 of the Act shield them from liability.
A. Discretionary Policy Decisions
Defendants contend that Sections 2-201 and 2-109 of the Tort Immunity Act, which provide immunity for discretionary policy decisions, prevent the imposition of liability. Section 2-201 states:
Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused. 745 ILCS 10/2-201 (West 2010).
In addition, Section 2-109 states "[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 2010). These two sections have been termed the ...