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Henrich v. Libertyville High School6/1/1999
Agenda 18-May 1998.
Opinion filed December 3, 1998.
Sections 24-24 and 34-84a of the School Code (105 ILCS 5/24-24, 34-84a (West 1994)) immunize teachers and certain other educational employees from liability for injuries caused by their negligent supervision of school activities. To recover for such an injury, a plaintiff student must plead and prove that the teacher committed willful and wanton misconduct by such supervision. Kobylanski v. Chicago Board of Education, 63 Ill. 2d 165, 171-73 (1976). Those sections apply equally to public and private schools. See, e.g., Hilgendorf v. First Baptist Church, 157 Ill. App. 3d 428, 429 (1987).
Also, when properly raised, the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) provides an extensive list of immunities to local governmental units, specifically including school districts. 745 ILCS 10/2-106 (West 1994). Section 3-108(a) of the Act immunizes a local public entity or a public employee from liability for an injury caused by a failure to supervise an activity on, or a failure to supervise the use of, any public property. 745 ILCS 10/3-108(a) (West 1994). Section 3-108(a) immunizes local public entities and employees from liability based on both ordinary negligence and willful and wanton misconduct. Barnett v. Zion Park District, 171 Ill. 2d 378, 391-92 (1996). The Tort Immunity Act does not apply to private schools. Cooney v. Society of Mt. Carmel, 75 Ill. 2d 430, 434 (1979).
The question presented for review is which statute's immunity controls in a case involving the failure to supervise public school activities: the immunity provided by the School Code, or the immunity provided by the Tort Immunity Act when properly raised? We hold that in such a case the immunity provided by the Tort Immunity Act controls.
BACKGROUND
This cause is before us following a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1994)). The motion admits all well-pled allegations in the complaint and reasonable inferences to be drawn from the facts. Fireman's Fund Insurance Co. v. SEC Donahue, Inc., 176 Ill. 2d 160, 161 (1997).
The complaint alleges as follows. On February 14, 1994, plaintiff, Joshua A. Henrich, underwent spine fusion surgery for a lower back medical condition. On September 2, 1994, plaintiff's surgeon advised plaintiff in a letter that he was permanently restricted from participating in "contact sports, such as wrestling and football in gym class at school." On or before January 25, 1995, defendant Libertyville High School District 128 (district) had received a copy of the letter and also had actual knowledge of plaintiff's lower back condition and the permanent restrictions on his activities in physical education class.
On February 2, 1995, plaintiff was a 17-year-old student at Libertyville High School. On that date, a substitute physical education instructor supervised the physical education class at the high school's pool area. The instructor required plaintiff to participate in a game of water basketball. The district knew or should have known that water basketball involved physical contact between the players. While participating in the water basketball game, plaintiff was severely and permanently injured.
Plaintiff brought a personal injury action in the circuit court of Lake County against the district, the high school (collectively, the district), and Justin Burg, a fellow student. Count I of the three-count complaint alleged that the district required, allowed, or failed to prohibit plaintiff's participation in the water basketball game. Th
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