Opinion
Docket No. 99457
Opinion filed July 5, 2006.
OPINION
Plaintiffs, Ryan Murray and his mother, Joyce Mayers, brought suit against the Chicago Board of Education (the Board), Chicago Youth Centers (CYC), and CYC employee James Collins (Collins) to recover for injuries suffered and medical expenses incurred as a result of a mini-trampoline accident that occurred at Bryn Mawr Elementary School on December 14, 1992. The circuit court of Cook County granted defendants summary judgment in their favor, holding that they were immune from liability pursuant to sections 2-201 and 3-108(a) of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) ( 745 ILCS 10/2-201, 3-108(a) (West 1992)). On appeal, the appellate court affirmed the grant of summary judgment, but on different grounds. 352 Ill. App. 3d 95. (2004). The appellate court held that section 3-109(c)(2) of the Tort Immunity Act ( 745 ILCS 10/3-109(c)(2) (West 1992)), which provides limited immunity for hazardous recreational activities, was applicable in this case and, accordingly, the immunity afforded defendants by the Tort Immunity Act did not extend to willful and wanton acts. 352 Ill. App. 3d at 65. However, the appellate court also held that, as a matter of law, the facts as set forth in plaintiffs' second amended complaint, along with the depositions, affidavits and other documents on file, would not support a finding that defendants acted willfully and wantonly. 352 Ill. App. 3d at 106.
CYC is an independent, not-for-profit agency which operates out of a number of neighborhood locations and offers a variety of services and programs to children ages 3 to 19.
We granted plaintiffs' petition for leave to appeal (177 Ill. 2d R. 315) and now affirm the judgment of the appellate court.
BACKGROUND
On December 14, 1992, Ryan Murray attempted to perform a forward flip off a mini-trampoline. He landed in a sort of "belly flop" on his upper chest and shoulders, sustaining serious injury to his neck. As a result, he was rendered a quadriplegic.
At the time of the injury, Ryan was 13 years old and attending the eighth grade at Bryn Mawr Elementary School, a Chicago public school operated by the Board. The injury occurred while Ryan was participating in an extracurricular tumbling class which was held during his school lunch period in the gymnasium of Bryn Mawr's main building. CYC offered the tumbling class at Bryn Mawr with the permission of the Board. Collins, a CYC employee, was the instructor. Collins had a degree in physical education and limited experience with the mini-trampoline. The mini-trampoline that was used in the tumbling class when Ryan was injured was purchased by the Board in 1991 with grant money obtained by Bryn Mawr in conjunction with a tumbling program offered as part of an after-school antigang program called D.A.R.E.
Bryn Mawr Elementary School is located on Chicago's southeast side. In 1992, Bryn Mawr served approximately 1,800 students in the primary grades. The school consists of three buildings: the main building, the modular building, and the annex.
When Ryan began the tumbling class in the fall of 1992, his skill level was already beyond the "beginner" stage due to his prior experiences. Ryan had taken the extracurricular tumbling class offered by CYC at Bryn Mawr in the spring 1992 term, when he was in the seventh grade. That class had also been taught by Collins. In 1991, Ryan participated in the D.A.R.E. after-school tumbling class at Bryn Mawr and, before that, he attended a tumbling class at Olive Harvey College during the summer. Ryan was able to perform back flips and forward flips from a standing position and had successfully performed a forward flip off a mini-trampoline on at least five or six occasions before the accident. Ryan used a mini-trampoline for the first time during the D.A.R.E. program.
The tumbling class at Bryn Mawr was held two days each week and lasted about 50 minutes. Between 18 and 22 students participated in the tumbling class on a given day. Typically, the students would come to the gym, sign in, and then change into loose-fitting clothing. Class would always begin with stretching exercises, after which the students would work on whatever gymnastic maneuver Collins planned to practice that day. For the most part, tumbling class consisted of learning and practicing floor maneuvers such as rolls, somersaults, cartwheels and forward or backward flips from a standing position. Collins used the mini-trampoline as part of his regular class on only a few occasions. However, at the end of each class, once the planned instruction was finished, Collins would give the students the last 10 to 15 minutes of the class period to "freelance" and practice any maneuver they wanted to work on. Generally, the mini-trampoline would be made available to the students during this time. The students would bring the mini-trampoline onto the gym floor and set it up. Collins would then make sure the trampoline was locked in position and that a double layer of floor mats was placed around the device.
Once the mini-trampoline was set up, the students would form a line and take turns using it. Some of the students would simply jump off the mini-trampoline, while other students who were more advanced might do a flip or somersault off the mini-trampoline. On occasion, Collins would "spot" the students. He also taught the students how to "spot" each other. However, Collins did not require that spotters be used every time a student jumped off the mini-trampoline but, rather, only if the student requested one.
In gymnastics, "spotting" is defined as a means of assisting a gymnast in the safe execution of a skill. Spotting can involve a range of behavior — from simply standing ready to assist to actually carrying the gymnast through the motion. When spotting, a safety belt or harness may also be used, with or without safety rigging (ropes or cables attached to pulleys connected to the ceiling).
On December 14, 1992, the tumbling class proceeded as usual. After regular class instruction was finished, the mini-trampoline was set up and the students were allowed to freelance. Ryan got in line and, when it was his turn, made a running approach to the mini-trampoline, jumped off the mini-trampoline into the air, rotated in a forward flip. He then landed on the mats on his upper chest and neck, sustaining injuries which rendered him a quadriplegic. Collins was in the gymnasium at the time of the accident, but was standing a few yards away, talking with other students. He had not been spotting the students using the mini-trampoline, nor had he assigned other students to act as spotters. Collins said that he saw Ryan's approach to the mini-trampoline before the accident and it appeared to him that Ryan was going to attempt a double forward flip. However, Collins was too far away from the mini-trampoline to intervene or take any action. After Ryan's accident, Collins immediately sent some students to the office to call 911 for assistance. Collins stayed with Ryan until emergency services arrived and Ryan was taken by ambulance to the hospital.
Ryan and his mother, Joyce Mayer, brought suit against the Board, CYC, and Collins. In their second amended complaint, plaintiffs alleged in count I that the use of a mini-trampoline was a hazardous recreational activity and that CYC and Collins acted willfully and wantonly in that they: failed to supply safety equipment, including a safety belt or harness and/or adequate mats; failed to provide proper instruction to Ryan; failed to evaluate Ryan's ability before allowing him to perform a somersault off the trampoline; failed to advise Ryan not to perform a somersault off the trampoline without a spotter; allowed Ryan to perform a somersault off the trampoline without a spotter; failed to guard against spinal-cord injury by using spotters and proper safety equipment; failed to warn Ryan of the substantial risk of severe spinal-cord injury knowing that he did not know of this risk; and failed to stop class when it was apparent that students were using the trampoline unsafely, i.e., without spotters and proper safety equipment. In count II, plaintiffs alleged that the Board was negligent in that it failed to provide proper safety equipment to the students taking the tumbling class, including a safety belt, harness or proper landing mats for trampolining. In count III, plaintiffs alleged that the Board was willful and wanton for the same reasons that it was alleged the Board was negligent in count II. In count IV, plaintiffs alleged that the Board allowed Ryan to participate in a hazardous recreational activity and that Collins, who was an agent or apparent agent of the Board, was unqualified to instruct students on the use of the mini-trampoline and did not supervise Ryan's use of the mini-trampoline. It was further alleged that the Board was willful and wanton for all of the reasons that CYC and Collins were alleged to be willful and wanton in count I. Counts V through VIII mirrored counts I through IV, except that in counts V through VIII recovery was sought under the Rights of Married Persons Act ( 750 ILCS 65/15 (West 1992)) for medical expenses Joyce Mayers incurred as a result of Ryan's injury.
Claims were also made against Sports Supply Group (SSG), which was identified in earlier pleadings as BSN Sports, Inc., and GSC Sports. It was alleged that SSG failed to provide adequate warnings on the mini-trampoline. The appellate court affirmed the trial court's grant of summary judgment to SSG and that ruling is not being challenged in this court.
Defendants moved for summary judgment, arguing that all of the allegations in plaintiffs' second amended complaint could be distilled down to two general claims-the failure to provide proper safety equipment and the failure to properly supervise, in particular, the failure to provide a "spotter," and that sections 2-201 and 3-108(a) of the Tort Immunity Act provided them with blanket immunity with regard to these claims. At the time of Ryan's accident in 1992, sections 2-201 and 3-108(a) of the Tort Immunity Act provided:
In the trial court, this matter was, initially, before Judge Varga when motions for summary judgement were filed by the Board and by CYC and Collins. The Board sought summary judgment solely on the basis that it was absolutely immune under the provisions of the Tort Immunity Act. CYC and Collins made the same argument as the Board, but in addition, argued that they were entitled to summary judgment because there was no disputed issue of material fact that they did not engage in willful and wanton conduct. The trial court denied the defendants' summary judgment motions, rejecting all of the defendants' arguments and allowed the matter to proceed.
More than a year later, the case was reassigned to Judge Agran. Also, during the interim, this court decided Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475 (2002). Based on that decision, the Board moved, once again, for summary judgment. CYC and Collins asked Judge Agran to reconsider their previous requests for summary judgment. Judge Agran then issued an order granting all of the defendants summary judgment, finding that they were immune from liability under sections 2-201 and 3-108(a) of the Act.
The question of whether the defendants' conduct was willful and wanton was raised in the circuit court and ruled on by Judge Varga. That ruling still stands as a part of this case. Because we, as a reviewing court, may affirm based on any grounds of record (see People v. Johnson, 208 Ill. 2d 118, 128-29 (2003)), it is clear that the willful and wanton issue is not "forfeited * * * for purposes of this appeal" as stated in Justice Kilbride's dissent.
"§ 2-201. 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 1992).
"§ 3-108. (a) Except as otherwise provided by this Act and subject to subdivision (b) 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 1992).
In response, plaintiffs argued that section 3-109, the immunity provision in relation to hazardous recreational activities, applied in this case and that, pursuant to section 3-109(c)(2), acts of willful and wanton conduct were not immunized. In 1992, section 3-109 of the Tort Immunity Act provided:
"§ 3-109. (a) Neither a local public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity.
(b) As used in this Section, `hazardous recreational activity' means a recreational activity conducted on property of a local public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator.
`Hazardous recreational activity' also means:
* * *
(3) Animal racing, including equestrian competition, archery, bicycle racing or jumping, boat racing, cross-country and downhill skiing, hang gliding, kayaking, motorized vehicle racing, off-road motorcycling or four-wheel driving of any kind, orienteering, pistol and rifle shooting, rock climbing, rocketeering, rodeo, spelunking, sky diving, sport parachuting, body contact sports (i.e., sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants), surfing, trampolining, tree climbing, tree rope swinging where the person or persons furnished their own rope, water skiing, white water rafting, and wind surfing.
(c) Notwithstanding the provisions of subsection (a), this Section does not limit liability which would otherwise exist for any of the following:
(1) Failure of the local public entity or public employee to guard or warn of a dangerous condition of which it has actual or constructive notice and of which the participant does not have nor can be reasonably expected to have had notice.
(2) An act of willful and wanton conduct by a public entity or a public employee which is a proximate cause of the injury.
Nothing in this subsection creates a duty of care or basis of liability for personal injury or for damage to personal property." (Emphasis added.) 745 ILCS 10/3-109 (West 1992).
Ruling on defendants' motions for summary judgment, the trial court held that, pursuant to sections 2-201 and 3-108(a) of the Tort Immunity Act, Collins, CYC, and the Board were entitled to blanket immunity from all of plaintiffs' claims, whether negligence or willful and wanton misconduct was alleged. The trial court, relying on a Fourth District appellate court opinion, Johnson v. Decatur Park District, 301 Ill. App. 3d 798 (1998), ruled that section 3-109 of the Act did not serve to "trump" the blanket immunity provided by sections 2-201 and 3-108(a). The trial court granted defendants' motions for summary judgment in their favor.
On appeal, the appellate court affirmed the trial court's grant of summary judgment, but held that, because trampolining is a hazardous recreational activity, section 3-109 of the Tort Immunity Act is the provision which determines the scope of defendants' immunity. 352 Ill. App. 3d at 105. Accordingly, defendants were immune from all negligence claims, but pursuant to section 3-109(c)(2) of the Act, defendants would not be immune if plaintiffs' injury resulted from defendants' willful and wanton misconduct. Nevertheless, the appellate court held that, based on the uncontested facts drawn from plaintiff's second amended complaint and the affidavits, depositions, and documents on file, "defendants' actions do not approach the degree of blameworthiness necessary to maintain an action for willful and wanton behavior." 352 Ill. App. 3d at 106. For this reason, the appellate court affirmed the grant of summary judgment to the Board, CYC, and Collins.
ANALYSIS
Plaintiffs do not deny that, in relation to local governmental entities and employees, the failure to provide safety equipment comes under the rubric of a "discretionary policy determination," which is immunized pursuant to section 2-201 of the Act, and that, pursuant to section 3-108(a), such defendants are generally immune against allegations that they failed to provide proper supervision. See Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475 (2002); Barnett v. Zion Park District, 171 Ill. 2d 378 (1996). Thus, plaintiffs do not dispute that, under ordinary circumstances, sections 2-201 and 3-108(a) of the Tort Immunity Act would provide defendants in the case at bar with absolute immunity for their discretionary and supervisory conduct. Plaintiffs maintain, however, that reading the Act as a whole, particularly in light of the prefatory language, i.e., "[e]xcept as otherwise provided by Statute" found in section 2-201 and "except as otherwise provided by this Act" found in section 3-108(a), the appellate court correctly determined that section 3-109 of the Tort Immunity Act, which sets forth the scope of immunity afforded local governmental entities and their employees in relation to hazardous recreational activities, applies in this case. Accordingly, plaintiffs maintain that the immunity afforded the defendants here is limited by the exceptions found in section 3-109(c)(2).
Plaintiffs contend, however, that the appellate court erred when it determined that there were no genuine issues of material fact as to whether any of the defendants' acts or omissions amounted to willful and wanton misconduct. Plaintiffs seek reversal and a remand for trial on their claims that defendants acted willfully and wantonly.
As an additional basis for reversal, plaintiffs contend that their second amended complaint contains allegations that defendants failed to guard or warn Ryan of the risks of using a mini-trampoline, bringing these claims within the section 3-109(c)(1) exception to the general grant of immunity. Plaintiffs contend that the appellate court erred because it failed to consider whether these allegations survived summary dismissal.
Defendants, on the other hand, argue that the appellate court erred when it ruled that the limited immunity afforded by section 3-109 of the Act supercedes the blanket immunity that would otherwise be provided by sections 2-201 and 3-108(a) of the Act. Defendants ask us to affirm the grant of summary judgment to them, but on the same grounds as the trial court, that is, by ruling that sections 2-201 and 3-108(a) of the Act provide defendants with absolute immunity from all claims which challenge their discretionary and supervisory decisions, whether negligence or willful and wanton conduct is alleged. In the alternative, defendants argue that, if section 3-109 applies to limit their immunity to only negligent acts, we should affirm the appellate court's ruling that, based on the undisputed facts, defendants could not be shown to have acted willfully or wantonly.
The parties agree that, because this case arises from the circuit court's grant of summary judgment, our review is de novo. Morris v. Margulis, 197 Ill. 2d 28, 35 (2001). Summary judgment is appropriate whenever the pleadings, depositions, admissions, and affidavits on file, viewed in the light most favorable to the nonmoving party, show that there are no disputed material facts between the parties and that the moving party is entitled to judgment as a matter of law. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004). We note, too, that in granting summary judgment, the courts below were required to interpret the Tort Immunity Act to determine what provisions, if any, were applicable in this case. The proper construction of the Act and its provisions presents a question of law, resolvable by summary judgment and subject to de novo review. Barnett v. Zion Park District, 171 Ill. 2d 378, 385 (1996). Our main goal in construing the Act is to ascertain and give effect to the intent of the legislature. Henrich v. Libertyville High School, 186 Ill. 2d 381, 387 (1998).
The Tort Immunity Act
In 1965, the General Assembly enacted the Local Governmental and Governmental Employees Tort Immunity Act to take the place of sovereign immunity, which this court abolished in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959). Thereafter, both Molitor and the Act were validated by the 1970 Illinois Constitution (see Ill. Const. 1970, art. XIII, § 4 ("Except as the General Assembly may provide by law, sovereign immunity in this State is abolished")) and, today, the Act continues to protect local public entities and public employees from liability arising from the operation of government. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368 (2003). The Act's purpose is to prevent the dissipation of public funds on damage awards in tort cases. 745 ILCS 10/1-101.1(a) (West 1998); Van Meter, 207 Ill. 2d at 368.
The Act imposes no duties, but "merely codifies those duties existing at common law, to which the subsequently delineated immunities apply." Barnett v. Zion Park District, 171 Ill. 2d 378, 386 (1996); see also Moore v. Green, 219 Ill. 2d 470 (2006). Since the Act stands in derogation of the common law, it must be strictly construed. Snyder v. Curran Township, 167 Ill. 2d 466, 477 (1995). Unless an immunity provision applies, municipalities are liable in tort to the same extent as private parties. See Barnett, 171 Ill. 2d at 386.
In the case at bar, the overarching issue is whether the general grant of immunity and exceptions thereto found in section 3-109 of the Tort Immunity Act apply in this case and, if so, whether this provision takes precedence over sections 2-201 and 3-108(a) of the Act. We find that it does.
Section 2-201 of the Act provides: "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." (Emphasis added.) 745 ILCS 10/2-201 (West 1992). This section, in conjunction with section 2-109 ( 745 ILCS 10/2-109 (West 1992)) ("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"), provides both a public employee and his employer with immunity against allegations which challenge discretionary policy determinations, such as the provision of safety equipment. Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d at 487; McGurk v. Lincolnway Community School District No. 210, 287 Ill. App. 3d 1059 (1997). Allegations of a failure to supervise are immunized by section 3-108(a), which provides: " Except as otherwise provided by this Act and subject to subdivision (b) 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." (Emphasis added.) 745 ILCS 10/3-108(a) (West 1992). This court has held that these provisions, when applicable, provide immunity from both negligent, as well as willful and wanton conduct. See DeSmet v. County of Rock Island, 219 Ill. 2d 497, 515 (2006); Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d at 487; Henrich v. Libertyville High School, 186 Ill. 2d 381, 383 (1998); Epstein v. Chicago Board of Education, 178 Ill. 2d 370 (1997).
This court's determinations regarding the scope of the immunities provided by sections 2-201 and 3-109(a) was based on the fact that neither provision contained an explicit exception for willful and wanton misconduct. It should be noted that section 3-108(a) has been amended and now contains an exception for willful and wanton conduct. See Pub. Act 90-805 § 5, eff. December 2, 1998.
This court has never had the occasion to consider the interplay between the immunities which sections 2-201 and 3-108(a) provide and the limited immunity provided by section 3-109. Our appellate court, however, has considered this issue. In McGurk v. Lincolnway Community School District No. 210, 287 Ill. App. 3d 1059 (1997), a student received head injuries while playing football. The student and his guardian brought suit against the school district, alleging that the school district was negligent in its provision and modification of the football helmet used by the student. The court held that the selection and modification of the school equipment was a discretionary determination immunized under section 2-201 of the Tort Immunity Act. However, the court went on to hold:
"Section 2-201 of the Tort Immunity Act does not provide an absolute blanket of immunity to all public entities; rather, it provides immunity for public employees involved in determination of public policy or the exercise of discretion, `[e]xcept as otherwise provided by Statute.' [Citation.]
One such exception is found in section 3-109 of the Tort Immunity Act. [Citation.] Section 3-109 provides that public entities and employees are not liable to persons participating in hazardous recreational activities, including body contact sports; however, immunity does not extend to willful and wanton acts that are the proximate causes of injury. [Citation]. Football is unquestionably a body contact sport, i.e., a sport in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants. [Citation.] Thus, under the plain language of section 3-109, the legislature exempted willful and wanton conduct from the immunity extended to cases involving body contact sports such as football." (Emphasis omitted.) McGurk, 287 Ill. App. 3d at 1062.
In Johnson v. Decatur Park District, 301 Ill. App. 3d 798 (1998), the court came to an opposite conclusion. In Johnson, similar to the case at bar, the plaintiff was seriously injured when he overrotated while performing a forward flip off a mini-trampoline in a recreational tumbling class. The court held that the park district was immune from liability against allegations of improper or inadequate supervision pursuant to section 3-108(a) of the Act and that section 3-109(c)(1) was not an exception to this immunity because a condition of the mini-trampoline was not at issue. Johnson, 301 Ill. App. 3d at 807. The court then noted:
"Plaintiffs argue that section 3-109(c)(2) of the Act is a limitation on the absolute immunity granted by section 3-108(a). Their argument is that use of a mini trampoline is a hazardous recreational activity and that wilful and wanton conduct is not immunized when it occurs in connection with such activities. They cite no case so holding. They argue that the plain language of section 3-109 compels this conclusion." Johnson, 301 Ill. App. 3d at 807.
Resolving this issue, the Johnson court held:
"[P]laintiffs have misconstrued the import of section 3-109(c)(2) of the Act. That subsection does not itself create an exception to the absolute immunity granted by section 3-108(a) of the Act. It simply states that nothing in section 3-109(a) of the Act limits liability `which would otherwise exist' for an act of wilful and wanton conduct by a public entity or employee that is a proximate cause of injury. Thus, if section 3-108 of the Act does not itself contain an exception for wilful and wanton conduct in connection with supervisory activities, section 3-109(c)(2) of the Act does not apply to provide such an exception, simply because the activity involved may be a hazardous recreational activity." Johnson, 301 Ill. App. 3d at 808.
In the case at bar, the appellate court specifically rejected the reasoning in Johnson, stating its belief that the Johnson court had not given sufficient consideration to the "[e]xcept as otherwise provided by this Act" language prefacing the section 3-108(a) immunity provision. We agree with the appellate court below.
We find it clear from the prefatory language found in both section 3-108(a) and section 2-201 of the Act that the legislature did not intend for the immunities afforded public entities and employees by these provisions to be absolute and applicable in all instances. In section 3-108(a) the legislature included the conditional language "[e]xcept as otherwise provided by this Act," indicating that the immunity provided by this provision would not apply if other exceptions or limitations found within the Act itself were applicable. In section 2-201 of the Act the legislature included the prefatory language "except as otherwise provided by Statute," indicating that the immunity provided by section 2-201 is contingent upon whether other provisions, either within the Act or within some other statute, creates exceptions to or limitations on that immunity.
Though we were not called upon to decide this exact issue in Epstein, our comments in Epstein lend support for our determination here. In Epstein we said:
"Section 3-108(a) grants immunity `[e]xcept as otherwise provided by this Act.' Ill. Rev. Stat. 1987, ch. 85, par. 3-108(a). Accordingly, section 3-108(a) by its own terms provides that the only exceptions to its grant of immunity are those set forth elsewhere in the Tort Immunity Act. Our review of the entire Tort Immunity Act reveals that it provides exceptions for liability under the Workers' Compensation Act and the Workers' Occupational Diseases Act (Ill. Rev. Stat. 1987, ch. 85, pars. 2-101(c), (d)), among other things." (Emphases added.) Epstein, 178 Ill. 2d at 377.
We note, also, that even where an immunity provision does not contain conditional language such as that found in sections 2-201 and 3-108(a), this court has not hesitated to consider whether the immunity afforded by one provision might be negated or otherwise limited by some other more directly applicable provision. See Moore, 219 Ill. 2d at 470; DeSmet, 219 Ill. 2d at 521 (exception to the application of section 4-102 immunity may be found "where a legislative enactment [such as the Illinois Domestic Violence Act] identifies a specially protected class of individuals to whom statutorily mandated duties are owed"). "It is a well-settled rule of statutory construction that `"[w]here there are two statutory provisions, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one subject, the particular provision must prevail."'" Henrich v. Libertyville High School, 186 Ill. 2d at 390, quoting Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 195 (1992), quoting Bowes v. City of Chicago, 3 Ill. 2d 175, 205 (1954). For example, in Doe v. Calumet City, 161 Ill. 2d 374 (1994), we reconciled section 4-102 of the Act, which provides a general immunity to municipalities and police officers regarding the provision of police services, with section 2-202 of the Act and held that an officer's acts or omission in executing or enforcing the law will not be immune if they constitute willful and wanton conduct.
After reviewing the above-cited cases, we determine that, in the case at bar, although sections 2-201 and 3-108(a) of the Act would ordinarily provide immunity against the type of allegations advanced by the plaintiffs, there is "otherwise provided" in the Tort Immunity Act a provision which more directly addresses the situation which gave rise to plaintiffs' injury. Ryan was injured when he was trampolining during an extracurricular tumbling class in which he voluntarily participated. Trampolining is specifically listed in section 3-109(b)(3) of the Act as a hazardous recreational activity and section 3-109(a) establishes that a public entity or public employee will not be liable to any person who participates in a hazardous recreational activity "for any damage or injury to property or persons arising out of [a person's voluntary participation in a] hazardous recreational activity" which takes place on public property. 745 ILCS 10/3-109(a) (West 1992). This general grant of immunity is subject to two exceptions: (1) if the public entity fails "to guard or warn of a dangerous condition of which [the public entity] has actual or constructive notice and of which the participant does not have nor can be reasonably expected to have had notice," and (2) if an act of willful and wanton conduct by a public entity or a public employee proximately causes the injury. 745 ILCS 10/3-109(c) (West 1992). We conclude that when a hazardous recreational activity, such as trampolining, is involved, the legislature intended to hold local governmental entities and their employees to a higher standard of care. Thus, in the case at bar, defendants' immunity from liability is subject to the exceptions found in section 3-109(c) of the Act.
Section 3-109(c) Exceptions
Having decided that defendants' immunity from liability is subject to the two exceptions found in section 3-109(c) of the Act, we must now decide whether the allegations contained in plaintiffs' complaint raise material issues of fact with regard to the application of either of the two exceptions. We shall first address the willful and wanton exception found in section 3-109(c)(2).
Plaintiffs contend that the appellate court erred by granting defendants summary judgment in their favor. They maintain that the question of whether conduct is willful and wanton is almost always a question of fact for the jury. Calloway v. Kinkelaar, 168 Ill. 2d 312, 326 (1995). Moreover, they contend that the wealth of materials submitted in response to the defendant's motion for summary judgment clearly demonstrate that there exists in this case "a genuine and material triable issue of fact" with respect to the question of willful and wanton conduct by the defendants. Specifically, plaintiffs contends that one could find willful and wanton conduct based on the evidence which showed that defendants, though aware of the possibility of serious injury associated with trampolining, exhibited a reckless disregard for Ryan's safety; that defendants, either recklessly or carelessly, failed to take steps to discover the risks posed by the use of a mini-trampoline, and failed to exercise care to prevent Ryan's injury. Plaintiffs point to the fact that Collins was not licensed to teach trampolining and had limited experience with the device. They argue that Collins was reckless because he allowed the students to use the mini-trampoline to "free-lance" without instruction or supervision and to perform flips without spotters or safety harnesses and without appropriate trampolining mats.
We agree with plaintiffs that, in general, whether conduct is "willful and wanton" is a question of fact for the jury. However, a court must decide, in the first instance, whether the undisputed facts are sufficient, as a matter of law, to create a jury question concerning the willful and wanton nature of the alleged conduct. Doe v. Calumet City, 161 Ill. 2d at 390. Thus, in the case at bar, we must decide whether the undisputed facts, drawn from the allegations in the plaintiffs' complaint, as well as the affidavits, depositions and other documents, viewed in a light most favorable to the plaintiffs, present a prima facie showing that willful and wanton conduct by any of the defendants proximately caused Ryan's injuries. In making this determination, we look to the definition of the term "willful and wanton" provided in the Act.
The Tort Immunity Act provides in section 1-210 that "`[w]illful and wanton conduct' as used in this Act means a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1-210 (West 1992). In Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429, 443 (1992), we interpreted this "strongly worded" definition of willful and wanton and held that "[t]he statutory language [of section 1-210] indicates that the legislature views willful and wanton conduct as being different in nature from simple negligence.
The issue in Burke was whether a plaintiff's negligence could be compared to a governmental entity's willful and wanton conduct to reduce the amount of damages the plaintiff could recover. Since the Act did not address comparative negligence, we explored common law precedent. In so doing, we determined that, at common law, application of comparative negligence principles was dependent upon the interpretation of the term willful and wanton and that the term "is capable of various interpretations." Burke, 148 Ill. 2d at 448. We concluded, however, that when balancing the competing interests of comparative negligence with the legislative purpose of the Tort Immunity Act, a plaintiff's negligence could not be compared with a defendant's willful and wanton conduct because willful and wanton behavior was qualitatively different — "[w]illful and wanton conduct is found where an act [is] done `"with actual intention or with a conscious disregard or indifference for the consequences when the known safety of other persons was involved."'" Burke, 148 Ill. 2d at 451, quoting Lynch v. Board of Education of Collinsville Community Unit District No. 10, 82 Ill. 2d 415, 430 (1980), quoting Myers v. Krajefska, 8 Ill. 2d 322, 328-29 (1956). See also Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28 (2004).
Plaintiff argues that we should disregard Burke's interpretation of the term "willful and wanton" as defined in the Act in favor of the broader definition of "willful and wanton" utilized in the plurality decision Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267 (1994) and, later, in Poole v. City of Rolling Meadows, 167 Ill. 2d 41 (1995). We decline the invitation. In Ziarko, as in Burke, we interpreted the meaning of "willful and wanton" but in an entirely different context. In Ziarko, the question was whether "the Joint Tortfeasor Contribution Act * * * permit[ted] a defendant found guilty of willful and wanton conduct to seek contribution from a defendant found guilty of ordinary negligence, if the willful and wanton acts did not amount to intentionally tortious misconduct." (Emphasis added) Ziarko, 161 Ill. 2d at 268. We were not required in Ziarko to interpret the statutory definition of "willful and wanton" found in the Tort Immunity Act. Nor were we required to reconcile the legislative purpose of the Contribution Act with the competing interests of the Tort Immunity Act. Thus, we were free in Ziarko to reject Burke's statutory-based interpretation of "willful and wanton" in favor of a broader, common law interpretation of the term. In Poole, a divided court simply followed Ziarko without recognizing Burke's statutory basis for the different interpretation of the term.
In the case at bar, we must interpret section 1-210 of the Act. We conclude, as we did in Burke, that in the context of Tort Immunity cases, "willful and wanton" connotes "quasi-intentional" conduct. In other words, it does not encompass "`mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency'" but, rather, "`requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.'" Burke, 148 Ill. 2d at 449, quoting Restatement (Second) of Torts § 500, Comment g, at 590 (1965). The appellate court below held that the allegations in plaintiffs' complaint did not "approach the degree of blameworthiness necessary to maintain an action for willful and wanton behavior." 352 Ill. App. 3d at 106. We agree.
Clearly there is no evidence that the defendants intended for Ryan to be injured in any way. Nor is there any evidence that defendants consciously disregarded an immediate and present danger which, if acted upon, would have prevented Ryan's injury. See, e.g., Hadley v. Witt Unit School District 66, 123 Ill. App. 3d 19, 23 (1984) (teacher observing students hammering metal into an anvil recognized an impending danger, but failed to direct the students to wear goggles); Hill v. Galesburg Community Unit School District 205, 346 Ill. App. 3d 515 (2004) ("reckless disregard" could be inferred from fact that the teacher, who had actual knowledge that student was performing chemistry experiment without eye protection, took no action). Trampolining is a hazardous activity and accidents can occur even when spotters are used and safety equipment is available.
We recognize that plaintiffs' expert believed that the tumbling class in which Ryan participated was run haphazardly, that Collins was not a qualified trampolining teacher, and that defendants failed to provide the level of supervision and equipment that would have made the class safer. However, these allegations, taken as true, do not rise to the level of willful and wanton misconduct. They charge nothing more than negligence.
We also reject plaintiffs' alternative claim, i.e., that the facts alleged bring this case within the "[f]ailure * * * to guard or warn of a dangerous condition" exception to the general grant of immunity, found in section 3-109(c)(1) of the Act ( 745 ILCS 10/3-109(c)(1) (West 1992)). Plaintiffs contend that the "dangerous condition" which Ryan did not know about, and which defendants should have guarded against or warned Ryan of, is the heightened risk of injury associated with mini-trampolining. However, trampoling is recognized as a hazardous recreational activity because it poses a heightened risk of injury. The very nature of the hazardous recreational activity cannot itself be the "dangerous condition" of which defendants must warn. If that were the case, the exception would devour the general grant of immunity. It is because hazardous recreational activities are inherently dangerous that the participant assumes a certain degree of risk. A "dangerous condition," therefore, must be something other than the activity. With regard to trampolining, a "dangerous condition" might be a latent defect in the equipment or some condition of the surroundings ( e.g., a lower section of ceiling or the presence of overhead pipes), which the defendants would have knowledge of and which might increase the risk of serious harm, but which might not be immediately recognizable by the participant. Since no allegations of this nature were made, we find that no material issue of fact was presented with regard to the "failure to guard or warn" exception found in section 3-109(c)(1) of the Act.
CONCLUSION
In the case at bar, Ryan was injured as a result of his voluntary participation in a hazardous recreational activity. As a consequence, the defendants are entitled to immunity from liability pursuant to section 3-109 of the Tort Immunity Act. This means that they are immune from liability for negligent conduct, but may be held liable if they (1) failed to guard or warn of a dangerous condition, or (2) Ryan's injury was proximately caused by defendants' willful and wanton conduct. We have reviewed the allegations made in plaintiffs' second amended complaint, which, along with the affidavits and depositions submitted, are taken as true. We find that the undisputed facts do not bring this case within either of the two exceptions found in section 3-109(c).
We affirm the judgment of the appellate court, which affirmed the grant of summary judgment in favor of the defendants.
Affirmed.
I agree with the majority's analysis of the relevant immunity provisions of the Tort Immunity Act and its holding that defendants' immunity is limited by the exceptions found in section 3-109(c) ( 745 ILCS 10/3-109(c) (West 2002)). I disagree, however, with the majority analyzing whether defendants engaged in willful and wanton conduct and in its agreeing with the appellate court's conclusion that "the allegations in plaintiffs' complaint did not `approach the degree of blameworthiness necessary to maintain an action for willful and wanton behavior.' 352 Ill. App. 3d at 106." Slip op. at 18-19. I must, therefore, respectfully dissent.
First of all, the order granting summary judgment that is the subject of this appeal did not consider whether defendants were entitled to summary judgment on the basis that their conduct was not willful and wanton. The Board has never advanced that argument in support of summary judgment. Similarly, CYC and Collins only made the argument that their conduct was not willful and wanton in a summary judgment heard before a different judge, and ruled upon in an order that is not the subject of this appeal. CYC and Collins unsuccessfully sought an interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308) and only asked for certification of the Tort Immunity Act questions, but did not seek an appeal of the adverse ruling on willful and wanton conduct. In their motion to reconsider the previous requests for summary judgment, CYC and Collins argued only that the Tort Immunity Act insulated them from liability. The majority's footnote (slip op. at 6 n. 5) implies that all issues previously decided were included in the motion to reconsider. The record belies that implication. The Board never raised the willful and wanton conduct issue at all, and CYC and Collins did not specifically raise it in the motion giving rise to this appeal.
The issue of whether defendants engaged in willful and wanton conduct was not argued by defendants in support of the order that is the subject of this appeal, and defendants have forfeited that issue for purposes of this appeal. Even the Board admits in its brief before this court that it took the position in its appellate court brief that since the trial court had not considered whether the plaintiffs had properly set forth allegations of willful and wanton misconduct, "it would be improper for this court to `originally' review issues not previously subject to an order of the trial court." In my view, the appellate court erroneously considered whether the conduct of defendants constituted willful and wanton misconduct when the order that is the subject of the appeal did not decide or consider that issue, and this court should reverse that part of the appellate court's holding.
Second, the issue of whether conduct was willful and wanton is a question of fact for the jury. Doe v. Calumet City, 161 Ill. 2d 374, 390 (1994); Calloway v. Kinkelaar, 168 Ill. 2d 312, 326 (1995).
In Doe, this court recognized that when a court decides as a matter of law that a complaint alleges sufficient facts to state a cause of action, "[w]hether conduct is `willful and wanton' is ultimately a question of fact for the jury." Doe, 161 Ill. 2d at 390, citing Glover v. City of Chicago, 106 Ill. App. 3d 1066, 1075 (1982). In Calloway, written by Justice McMorrow, author of today's opinion, this court reiterated, "[w]hether defendants breached this legal duty by willful and wanton misconduct that proximately caused plaintiff's injury is a question of fact for the jury to determine at trial." Calloway, 168 Ill. 2d at 326. A fact determination requires the trier of fact to resolve conflicts in evidence, determine what weight to apply to the evidence, and judge the credibility of the witnesses.
The majority, relying on our opinion in Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429 (1992), concludes that the Act's definition of "willful and wanton" conduct connotes "quasi-intentional" conduct, requiring a conscious choice of a course of action, "`"either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man."'" Slip op. at 18, quoting Burke, 148 Ill. 2d at 449, quoting Restatement (Second) of Torts § 500, Comment g, at 590 (1965). The majority then abruptly determines that no evidence indicates that defendants "consciously disregarded an immediate and present danger which, if acted upon, would have prevented Ryan's injury." Slip op. at 19. Although the majority refers to the testimony of plaintiffs' expert, who was critical of Collins' training and experience and believed defendants failed to provide the level of supervision and equipment that would have made the class safe, it concludes, without analysis, that "these allegations, taken as true, do not rise to the level of willful and wanton misconduct." Slip op. at 19.
The majority acknowledges our plurality decision in Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267 (1994), and the majority decision in Poole v. City of Rolling Meadows, 167 Ill. 2d 41 (1995), but purports to distinguish them on the basis that Ziarko addressed the issue of willful and wanton conduct in a different context not requiring either interpretation of the statutory definition of the term in the Tort Immunity Act or reconciliation of the legislative purpose of the Contribution Act with the competing interests of the Tort Immunity Act. According to the majority, Poole "simply followed Ziarko without recognizing Burke's statutory basis for the different interpretation of the term." Slip op. at 18. In my view, there is no basis in the Burke opinion to support the idea that the legislative definition of willful and wanton conduct in the Tort Immunity Act somehow transforms and restricts its meaning in cases subject to the Act as opposed to its meaning in cases not involving legislatively created immunity.
In Burke, the court was presented with the question of whether the plaintiff's alleged contributory negligence could be compared with the particularly egregious conduct of police officers, thus entitling the municipality to a reduction in the damages award reflecting the plaintiff's percentage of fault. The court held that "[b]ecause of the qualitative difference between simple negligence and willful and wanton conduct, and because willful and wanton conduct carries a degree of opprobrium not found in merely negligent behavior," the contributory negligence of the plaintiff could not be compared with the willful and wanton conduct of the municipality. Burke, 148 Ill. 2d at 451-52. In determining that a qualitative difference existed, the court, citing earlier authority, noted that willful and wanton misconduct "`"approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it."' [Citations.]" Burke, 148 Ill. 2d at 448.
Nowhere in Burke did we expressly state that the legislative definition of willful and wanton conduct represented a change or modification of the concept as previously defined at common law. While we cited the legislative definition, noting that the language "indicates that the legislature views willful and wanton conduct as being different in nature from simple negligence" ( Burke, 148 Ill. 2d at 443), we also noted that the pattern jury instruction given at trial was identical to the statutory definition and to the pleading requirements for willful and wanton conduct under Illinois case law ( Burke, 148 Ill. 2d at 448, citing Illinois Pattern Jury Instructions, Civil, No. 14.01 (2d ed. 1971)).
Further, we did not imply by our holding in Burke that cases subject to tort immunity defenses require application of a more restrictive definition of willful and wanton conduct than that applicable at common law. In fact, the Burke court observed:
"We can find no indication in the Act that the legislature, balancing its dual interest in protecting municipalities and protecting the people, intended to reject the deterrent of placing willful and wanton conduct beyond the reach of comparison with mere negligence. However, as the legislature has not spoken definitively, we turn for guidance to common law precedents." (Emphasis added.) Burke, 148 Ill. 2d at 443.
The court then reviewed Illinois precedent, federal decisions and cases from our sister states, as well as learned treatises, before determining that there is a qualitative difference between negligence and willful and wanton conduct, not merely one of degree. Burke, 148 Ill. 2d at 444-50. It must be remembered, however, that the police officers' conduct in Burke, as established by testimony at trial, clearly was particularly egregious and, in fact, did approach the level of quasi-intentional conduct. The Burke court interpreted the term in that context.
No case decided by this court until now has ever held that willful and wanton conduct must be more restrictively defined in cases implicating the Tort Immunity Act than in cases arising in a purely common law context. The majority has not proffered any rational basis for its epiphany and I can discern none. Thus, the majority's rejection of Ziarko and Poole is unsupported, and unnecessarily undermines settled precedent of this court.
In Ziarko, this court considered the issue of whether a joint tortfeasor found guilty of willful and wanton conduct could seek contribution against another joint tortfeasor liable for only negligent conduct. In a plurality opinion written by Justice McMorrow, author of today's majority opinion, the court acknowledged legal commentary critical of Burke. Ziarko, 161 Ill. 2d at 278. This court agreed that "continued adherence to the full scope of the Burke decision could lead to harsh and unjust results supported by neither the clear terms of, nor underlying purposes for, our laws regarding comparative fault and contribution." Ziarko, 161 Ill. 2d at 278.
The Ziarko plurality noted that the willful and wanton conduct in Burke approached the degree of moral blame attached to intentional harm ( Ziarko, 161 Ill. 2d at 273) but nevertheless held that "conduct characterized as willful and wanton may be proven where the acts have been less than intentional — i.e., where there has been `a failure, after knowledge of impending danger, to exercise ordinary care to prevent' the danger, or a `failure to discover the danger through * * * carelessness when it could have been discovered by the exercise of ordinary care.'" Ziarko, 161 Ill. 2d at 274, quoting Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 583 (1946). The court further noted that "[u]nder the facts of one case, willful and wanton misconduct may be only degrees more than ordinary negligence, while under the facts of another case, willful and wanton acts may be only degrees less than intentional wrongdoing." Ziarko, 161 Ill. 2d at 275-76. Accordingly, the court found that contribution principles could be applied in cases where one defendant is found guilty of negligence and another of willful and wanton acts not rising to the level of intentional misconduct. Ziarko, 161 Ill. 2d at 280.
One year after the Ziarko decision, a majority of this court expressly adhered to the Ziarko analysis of the dual nature of willful and wanton conduct, and quoted that court's observation that in some instances, willful and wanton conduct may be only degrees more than ordinary negligence. Poole, 167 Ill. 2d at 48. Poole involved both a federal civil rights claim and a state claim against the City of Rolling Meadows, based on the allegedly willful and wanton misconduct of a police officer who shot the plaintiff by mistake while investigating a break-in at the home of plaintiff's mother. A jury found for the officer on the federal claim and for the plaintiff on the state willful and wanton misconduct claim, and the trial court reduced plaintiff's award by his percentage of contributory negligence. The trial court then granted plaintiff's motion to reinstate the jury award, accepting plaintiff's argument that damages based on willful and wanton misconduct could not be reduced by a plaintiff's contributory negligence. This court noted that the jury did not characterize defendants' misconduct as either intentional or reckless, and therefore concluded that the trial court erred in reinstating the full verdict in favor of plaintiff without reduction for his claimed contributory fault. Poole, 167 Ill. 2d at 49-50. Although the opinion does not reference any tort immunity defense, it is apparent that the conduct of the City and its police officer was subject to the provisions of the Act, just as were the defendants in the present case.
The majority asserts that in Ziarko, we were free to apply a broader common law definition of willful and wanton conduct, as that case did not implicate the Tort Immunity Act. The majority then blithely dismisses Poole on the ground that we did not recognize Burke's statutory basis for the different interpretation of the term. Slip op. 18. As noted, no statutory basis exists for a different interpretation, and the Poole court's lack of recognition is not surprising.
The Poole majority clearly was required to confront the continued applicability of the Burke standard because Justice Nickels's dissent directly addressed that issue. He argued that Ziarko was a plurality opinion and, thus, not a precedential holding. Accordingly, he concluded Burke controlled and that the majority's departure from it was ill-advised. Poole, 167 Ill. 2d at 51 (Nickels, J., dissenting, joined by Heiple and Harrison, JJ.).
Inexplicably, the majority has also failed to acknowledge our holding in American National Bank Trust Co. v. City of Chicago, 192 Ill. 2d 274 (2000), despite its citation and argument in plaintiffs' brief. In that case, this court reversed the trial court's determination that the plaintiff's complaint did not sufficiently allege willful and wanton misconduct. The 11-count complaint sought recovery from the City under the Survival and Wrongful Death Acts, alleging negligence and willful and wanton misconduct, and under a federal civil rights provision. The complaint alleged that a 911 operator acted willfully and wantonly in not keeping the decedent, an apparent heart attack victim, on the line while paramedics responded, and also claimed that the paramedics acted willfully and wantonly in failing to try decedent's unlocked door and enter her apartment, in violation of express instructions in their training materials. American National Bank, 192 Ill. 2d at 277.
This court rejected defendants' Tort Immunity Act defense ( American National Bank, 192 Ill. 2d at 280-81), and then addressed the sufficiency of the complaint. Citing the Ziarko explanation of willful and wanton conduct, the court held the allegations in plaintiff's complaint were sufficient to withstand a motion to dismiss, and created a question for the trier of fact to determine whether the defendants' conduct was willful and wanton. American National Bank, 192 Ill. 2d at 285-86.
Justice Heiple dissented, arguing, inter alia, that the conduct of the police officers was not "affirmative or willful" because there was no indication the paramedics made a conscious decision not to try the door to gain entry to the decedent's apartment. American National Bank, 192 Ill. 2d at 289-90 (Heiple, J., dissenting, joined by Bilandic and Rathje, JJ.). The majority cannot, in light of this dissent, dismiss the majority holding on the ground that we ignored or overlooked application of a stricter standard for establishing willful and wanton conduct. The majority obviously considered and rejected the dissenters' contention.
Today's opinion rejects and impliedly overrules Poole. It also, sub silentio, overrules American National Bank. If there are cogent reasons for this result, the majority has not addressed them. To avoid total confusion of both bench and bar, the majority should either distinguish Poole and American National Bank, or expressly overrule those cases. To do the latter would overturn decades of precedent, dating at least to 1946, when Schneiderman, the source of the Ziarko-Poole ruling, was announced. Accordingly, I believe we should continue to apply the Ziarko-Poole standard.
Most recently, in Doe v. Chicago Board of Education, 213 Ill. 2d 19 (2004), this court affirmed denial of a section 2-615 motion to dismiss a complaint seeking damages for a special needs bus passenger, injured in an assault by a fellow passenger while en route to school in a bus provided by the school board. The Board's immunity defense was rejected, and the complaint, alleging willful and wanton misconduct, was held sufficient to charge the Board with knowledge of both the special needs of the victim and the dangerous propensities of the assailant. The issue of willful and wanton conduct by the Board was thus deemed within the province of the jury. Doe, 213 Ill. 2d at 29. Nowhere in Doe did this court imply that the school board had engaged in "quasi-intentional" conduct, nor did we hold that such a finding was necessary to maintain a cause of action for willful and wanton conduct. Here, as in Doe, the record is sufficient to establish that the defendants knew, or should have known, of the likelihood that Ryan would be injured without adequate safety equipment or supervision.
In Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475 (2002), we accepted a tort immunity defense in a case alleging the failure of a school board to provide suitable roller-blades and roller-blade equipment. The complaint alleged that the failure amounted to negligence or, alternatively, willful and wanton conduct. In affirming the circuit court's allowance of the defendant's section 2-615 motion to dismiss based on the discretionary immunity provided by section 2-201 of the Act, we reasoned that the decision not to provide roller-blade safety equipment was a discretionary policy determination and thus immunity applied to plaintiff's allegations. Arteman, 198 Ill. 2d at 487. The majority did not discuss the issue of willful and wanton conduct as an exception to immunity.
Justice McMorrow, in a separate opinion, argued that the willful and wanton conduct counts should not have been dismissed and, instead, should be allowed to go forward. Arteman, 198 Ill. 2d at 490 (McMorrow, J., concurring in part and dissenting in part, joined by Harrison, C.J.). The allegations in the complaint at issue here are at least equally compelling in their description of the defendants' collective failure to provide adequate safety equipment, training, and supervision in compliance with recognized national safety standards.
The post- Burke decisions make it abundantly clear that willful and wanton conduct, even in cases involving the Tort Immunity Act, may be found by the trier of fact when the tortfeasor's level of fault is only degrees greater than ordinary negligence. Moreover, the allegations of the complaint and the materials supporting plaintiffs' response to the summary judgment motion raise a genuine issue of material fact on the issue of defendants' willful and wanton conduct.
Summary judgment is appropriate only when the pleadings, depositions and affidavits in the record show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Sollami v. Eaton, 201 Ill. 2d 1, 6 (2002). It is a drastic means of disposing of litigation and this court has a duty to construe the record strictly against the movant and liberally in favor of the nonmoving party. Majca v. Beekil, 183 Ill. 2d 407, 416 (1998). Summary judgment should not be allowed unless the moving party's right to judgment is clear from doubt. Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 424 (1998). Plaintiffs are not required to prove their cases at the summary judgment stage. Jackson, 185 Ill. 2d at 424. As I have noted, there is no movant or moving party here as to the willful and wanton conduct issue, because the issue was not raised by defendants in support of the motions for summary judgment that are the subject of this appeal. Nonetheless, applying these principles to a review of the summary judgment pleadings in this case establishes beyond doubt that a triable issue of material fact exists on whether defendants are guilty of willful and wanton conduct when measured by the Ziarko-Poole standard.
Plaintiff's expert, Dr. Marc Rabinoff, a gymnastics expert, whose deposition testimony was not rebutted in any way by defendants, unequivocally testified that it is well known that the mini-trampoline is associated with the risk of spinal cord injury from improperly executed somersaults. According to Dr. Rabinoff, the use of the mini-trampoline requires competent instruction and supervision, and competent spotters for safety and prevention of catastrophic injury. In Dr. Rabinoff's opinion, the tumbling environment was not appropriate for executing somersaults off of a competitive professional mini-trampoline because these maneuvers require considerable skill, spotting, and appropriate landing mats. The minimum mat requirement was not met, and there were absolutely no spotters. The tumbling program violated every single standard and was one of the worst environments Dr. Rabinoff had ever seen. Dr. Rabinoff opined that Ryan Murray's injury would have been prevented had more than two inches of mat been used on the landing surface.
Dr. Rabinoff testified that it was Collins' job, as the tumbling instructor, to know the maneuver each gymnast's intended to execute, and that Collins' supervision and instruction was inadequate. In fact, Dr. Rabinoff was shocked that Collins inappropriately rolled Ryan Murray over after the accident, when Ryan had a suspected head and neck injury. Collins was, in Dr. Rabinoff's opinion, not qualified to teach tumbling. Dr. Rabinoff indicated that school districts all over the country had banned trampolines from tumbling classes 10 to 15 years before Ryan Murray's accident, that the Chicago schools should not have purchased the trampoline and should not have permitted Collins to use the trampoline in tumbling classes.
Dr. Rabinoff concluded that Collins demonstrated a reckless conduct or conscious disregard for the safety of Ryan Murray in that:
"He elected, made a decision, not to spot, he made a decision to use the mini-trampoline improperly; he made a decision to use mats that are inadequate; he made a decision to conduct that class the way it was conducted, that's reckless to me, and complete disregard for what could potentially happen if a participant, a student in that class doesn't make it all the way around off the mini-tramp."
Dr. Rabinoff also concluded that, in his opinion, the Board of Education demonstrated reckless conduct or a conscious disregard for the safety of Ryan Murray in the purchase and use of the mini-trampoline. It was also clear to Dr. Rabinoff that there were not enough mats used on the landing area because Ryan Murray landed partially on the mat and partially on the bare gymnasium floor.
Dr. Rabinoff's report was also attached to his deposition and made a part of the record. That report indicates that in expressing his opinions on the issues of liability and probable cause, he relied on his education, training and experience, witness statements and depositions, personnel records of James Collins, and guidelines and warnings on use of mini-trampolines and trampolines issued by the USGF, the American Alliance for Health, Physical Education, Recreation and Dance, the NCAA, the AAP, the United States Product Safety Commission, and the American Society for Testing and Materials. Dr. Rabinoff's report indicates, inter alia,
"The U.S.G.F. Gymnastics Safety Manual, Second Edition (1990) requires that spotting should be required for mini-tramp activities. The decision as to when and how spotting should be employed rests with the teacher. Skillful use of `hands-on spotting' and a safety rig are essential when teaching somersault activities. James Collins failed to adhere to the U.S.G.F. Gymnastics Safety Manual guidelines regarding spotting.
The U.S.G.F. Safety Manual, Second Edition (1990), requires the following landing surface:
A suitable landing surface can be established by placing a 4" landing mat (6' x 12') on top of a base mat (6' x 12'). This matting arrangement, positioned securely against the forward legs of the mini tramp, serves as a minimum recommendation for stand up jumping activities. For somersault activities, an additional 4" landing mat (6' x 12') placed on top of the above described landing surface or an 8" to 12" safety cushion placed on top of the base mat is recommended.
The Chicago Board of Education failed to supply the appropriate equipment for a landing surface. They further failed to supply a harness or safety belt to Ryan Murray while performing a somersault maneuver.
The wresting mats used by and set up by Mr. Collins for tumbling class were inappropriate and in clear violation of the U.S.G.F. Gymnastics Safety Manual guidelines.
The U.S.F.G. Gymnastics Safety Manual, Second Edition (1990), requires that use of the mini-tramp occur under the supervision of a trained and qualified instructor. Mr. Collins was not a trained and qualified instructor.
The U.S.G.F. Gymnastics Safety Manual, Second Edition (1990), requires that the instructor inform students about the potential risks associated with the use of the mini-trampoline and that the instructor be sure that the risks and rules are appreciated and understood. Mr. Collins did not inform students of the potential risks and Ryan Murray, a student in his class, did not appreciate and understand the risks of trampolining.
* * *
The U.S.G.F. Gymnastics Safety Manual, Second Edition (1990), clearly warns that improper execution of the somersault is one of the most common causes of serious, catastrophic spinal cord injury. This warning applies to both forward and backward somersaults as well as any of their related dive roll activities. Mr. Collins as a trampoline instructor knew or should have known of this risk.
The failure of Mr. Collins to adhere to the mini-trampoline guidelines enunciated in the U.S.G.F. Gymnastics Safety Manual, demonstrates reckless conduct or conscious disregard for the safety of Ryan Murray and the students in the tumbling class at Bryn Mawr School.
* * *
The Chicago Board of Education did not adequately determine Mr. Collins' qualifications to teach tumbling and mini-tramp.
Risk of serious injury, including quadriplegia, is known to occur from improper execution of a somersault when using a mini-trampoline.
Safety rules are a fundamental part of a safe trampoline program. The rules should be conspicuously and thoroughly understood by each participant in the class. Each student must understand and respect the hazards of the trampoline and the disastrous consequence including paralysis of an improper head and neck landing. Safety must be constantly reinforced. A student does not assume any risk of which he is not aware or does not appreciate. Responsibility rests on the instructor to communicate the risk. Knowledge of the risk is not enough. Appreciation of the risk of serious catastrophic injury, including paralysis, must be supplied to every student by the instructor. The instructor must ascertain that the student understands this risk."
Ryan Murray testified during his deposition that he never saw Collins spot anyone off the trampoline and that his injury occurred during the "freelance" part of the class. Ryan had only done forward flips two or three times and he did not imagine that he could land on his head or neck while doing a forward flip. Ryan imagined falling probably on his knees or incorrectly on his feet, but he did not know that a forward flip could cause him to be seriously injured or paralyzed. The worst injury he imagined was probably a broken leg or arm.
The uncontroverted evidence demonstrates that it is well known that use of a mini-trampoline is associated with the risk of spinal cord injury from improperly executed somersaults and that catastrophic injuries, including quadriplegia, can result from an improperly executed somersault. The tumbling/trampoline program was not supervised by an instructor with professional preparation in teaching trampolining, nor was it taught in a proper manner with reminders of injury incorporated into the teaching process. Trained spotters and safety equipment were not provided at all times, and none of the United States Gymnastic Federation Safety Manual guidelines were followed. In fact, when Collins observed from a distance of about 15 feet to 20 feet that Ryan was about to attempt the maneuver, Collins could arguably have prevented Ryan Murray's injury by simply yelling "stop!" Accordingly, genuine and material triable issues of fact exist in this case on the question of whether defendants are guilty of willful and wanton conduct, and a jury could reasonably conclude that defendants were guilty of willful and wanton conduct by their conscious disregard for Ryan Murray's safety.
Under the Ziarko-Poole standard, defendants act willfully and wantonly if they "`fail, after knowledge of impending danger, to exercise ordinary care to prevent' the danger," or if they fail "`to discover the danger through * * * carelessness when it could have been discovered by the exercise of ordinary care.' [Citation.]" (Emphases added.) Ziarko, 161 Ill. 2d at 274. Here, the Board should have known, had it exercised ordinary care, that students in the tumbling class, including 13-year-old Ryan Murray, were exposed to the impending danger of quadriplegia every time they attempted forward flips without proper instruction, spotters, or safety equipment. Nevertheless, the Board failed to provide proper mats and a properly trained trampoline instructor. CYC and its employee, Collins, actually knew of that impending danger, yet they did nothing at all to prevent injury, even though the simple prohibition of forward flips without spotters and proper mats could have prevented the injury. These failures meet the Ziarko-Poole test. Under the circumstances, it was clearly error for the appellate court to affirm summary judgment and the majority has compounded and magnified the error by its ruling today.
For the foregoing reasons, I respectfully dissent.
CHIEF JUSTICE THOMAS joins in this dissent.
I write separately because, unlike Justice Kilbride, I believe the question of whether defendant's conduct was willful and wanton was not "forfeited * * * for purposes of this appeal," as stated in Justice Kilbride's dissent. I otherwise agree with the substantive analysis of Justice Kilbride's dissent and join therein.