Henrich by Henrich v. Libertyville High School
| Citation | 683 N.E.2d 135,289 Ill.App.3d 809 |
| Decision Date | 08 May 1997 |
| Docket Number | No. 2-96-0561,2-96-0561 |
| Parties | , 225 Ill.Dec. 191, 120 Ed. Law Rep. 752 Joshua A. HENRICH, by his Mother and Next Friend, Judith HENRICH, Plaintiff-Appellant, v. LIBERTYVILLE HIGH SCHOOL, et al., Defendants-Appellees and Counterdefendants-Appellees (Justin Burg, Defendant and Counterplaintiff-Separate Appellant). |
| Court | United States Appellate Court of Illinois |
Scott B. Gibson, Law Offices of Scott B. Gibson, Ltd., Waukegan, for Joshua and Judith Henrich.
Sullivan, Smith, Hauser & Noonan, Ltd., Leo J. Sullivan, III, Waukegan, for Justin Burg.
Plaintiff, Joshua A. Henrich, by his mother and next friend, Judith Henrich, filed a three-count complaint in the circuit court of Lake County seeking damages for personal injuries. Counts I and II of the complaint were directed against defendants Libertyville High School (the High School) and Libertyville High School District 128 (collectively, the District). Count I alleged willful and wanton misconduct. Count II alleged negligence. Count III was directed against defendant Justin Burg and alleged negligence. Burg subsequently filed a counterclaim for contribution against the District.
The circuit court granted the District's motion to dismiss counts I and II on the ground that the District was immune from liability under section 3--108 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3--108 (West 1994)). The court also dismissed Burg's counterclaim against the District.
Plaintiff appeals the dismissal of counts I and II of his complaint. Burg appeals the dismissal of his counterclaim. The issues raised on appeal are: (1) whether the trial court erred when it dismissed count I of plaintiff's complaint because section 24-24 of the School Code (105 ILCS 5/24-24 (West 1994)) governs this case instead of section 3-108 of the Tort Immunity Act, and under section 24-24 the District did not have immunity with respect to the alleged willful and wanton misconduct; and (2) whether the trial court erred when it dismissed Burg's counterclaim for contribution.
Plaintiff's complaint alleged the following. On February 14, 1994, plaintiff underwent spine fusion surgery for a low back medical condition. On September 2, 1994, the physician who performed the surgery on plaintiff wrote a letter advising plaintiff that he was permanently restricted from participating in contact sports "such as wrestling and football in gym class at school." On and before January 25, 1995, the District had received a copy of the doctor's letter and also had actual knowledge of plaintiff's medical condition and the permanent restrictions on his activities with respect to physical education classes.
Plaintiff's complaint further alleged the following. On February 2, 1995, plaintiff was a 17-year-old student at the High School. On that date, an agent or employee of the District required plaintiff to play and participate in a game of water basketball during a physical education class in the pool area of the High School. The District knew or should have known that water basketball involved physical contact between the players. Plaintiff was severely and permanently injured while participating in the water basketball game.
Count I of plaintiff's complaint asserted that the District required, allowed, or failed to prohibit plaintiff's participation in the water basketball game, knowing that the game involved physical contact and knowing of plaintiff's medical condition and/or the restrictions on his activities due to his medical condition. Count I further asserted that the District allowed Burg, a fellow student, to participate in the water basketball game knowing that Burg was a particularly rough player. Count I claimed that the District's acts constituted willful and wanton misconduct which proximately caused plaintiff's injuries.
Count II of plaintiff's complaint reiterated the alleged acts by the District set out in count I and added that the District assigned a noncertified or inadequately trained substitute teacher to the physical education class and failed to adequately supervise the class. Count II claimed that the District's acts constituted negligent conduct which proximately caused plaintiff's injuries.
The District responded to the complaint by filing a combined motion to dismiss the complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 1994)). One of the two parts of the District's combined motion was pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 1994)). The section 2-619 part of the motion sought the dismissal of counts I and II of the complaint on the ground that the District was immune from liability under sections 3-108(a) and 3-109 of the Tort Immunity Act (745 ILCS 10/3-108(a), 3-109 (West 1994)).
The other part of the District's combined motion to dismiss the complaint was pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 1994)). The section 2-615 part of the motion sought the dismissal of count I of the complaint on the ground that count I failed to plead adequately that the District's conduct was willful and wanton.
Burg filed an answer to count III of the complaint. Burg later filed a counterclaim for contribution against the District.
The circuit court first partially disposed of the District's combined motion to dismiss the complaint by denying the section 2-615 part of the motion and continuing the section 2-619 part of the motion. The court next issued an order granting the District's motion to dismiss count II only. The court based its ruling on a determination that the District was immune from negligence actions under the Tort Immunity Act.
In a subsequent order, the circuit court granted the District's motion to dismiss count I. The court based its ruling on a finding that section 3-108 of the Tort Immunity Act provided immunity to the District for claims alleging willful and wanton misconduct as well as claims alleging negligence. In the same order, the court dismissed Burg's counterclaim for contribution against the district. The order noted that count III of plaintiff's complaint against Burg remained pending. The order further stated that the court's prior order dismissing count II and the present order were final and appealable.
Plaintiff appealed from the orders granting the District's motion to dismiss counts I and II. However, on appeal, plaintiff contests only the dismissal of count I. Burg appealed from the order dismissing his counterclaim against the District. We will first address plaintiff's appeal.
The ultimate issue before us with respect to plaintiff's appeal is whether the District was immune from liability even if, as plaintiff's complaint alleged, the District engaged in willful and wanton misconduct. The resolution of this issue depends on whether, as plaintiff contends, section 24-24 of the School Code was the controlling statute, or whether, as the District contends and the trial court concluded, section 3-108(a) of the Tort Immunity Act was also applicable.
The parties do not dispute the immunity provided by the two statutes. Section 24-24 of the School Code has been interpreted to provide immunity for negligent, improper supervision by a teacher and certain other educational employees as to school activities, but not to provide immunity for willful and wanton misconduct related to such supervision. Kobylanski v. Chicago Board of Education, 63 Ill.2d 165, 173, 347 N.E.2d 705 (1976). Section 3-108(a) of the Tort Immunity Act provides immunity for both negligent conduct and willful and wanton misconduct in situations in which it applies. Barnett v. Zion Park District, 171 Ill.2d 378, 391, 216 Ill.Dec. 550, 665 N.E.2d 808 (1996).
Section 3-108(a) of the Tort Immunity Act provides, in pertinent part:
"[N]either 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).
The Tort Immunity Act defines "local public entity" by setting out a list of such entities which specifically includes a "school district." 745 ILCS 10/1-206 (West 1994). Plaintiff concedes that "public property," as those terms are used in section 3-108(a), includes public schools.
Therefore, under the plain and unambiguous language of the Tort Immunity Act, a public school district is not liable "for an injury caused by a failure to supervise an activity on or the use of" a public school. A "failure to supervise," as used in section 3-108(a), encompasses improper supervision. See Barnett, 171 Ill.2d at 392, 216 Ill.Dec. 550, 665 N.E.2d 808.
In this case, plaintiff asserts that his injury occurred "due to improper supervision" of his "in-classroom" activities, in that he was injured during a supervised gym class. Thus, on its face, section 3-108(a) applies to the facts of this case to provide immunity to the District because the conduct in question was alleged improper supervision of an activity that occurred in a public school.
Plaintiff does not really dispute the facial application of section 3-108(a) to the facts of this case. Rather, plaintiff contends that section 24-24 of the School Code effectively supersedes the Tort Immunity Act as to what immunities apply in situations involving alleged improper supervision in a school setting, particularly with respect to mandatory classroom activities. In plaintiff's view, section 3-108(a) of the Tort Immunity Act does not apply in this case because this case involves improper supervision in a required school class and such situations are governed exclusively by section 24-24 of the School Code.
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