The opinion
2025 IL 131420
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 131420)
KEVIN HAASE et al., Appellees, v. KANKAKEE SCHOOL
DISTRICT 111 et al., Appellants.
Opinion filed November 20, 2025.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
Chief Justice Neville and Justices Theis, Overstreet, Holder White, Rochford,
and O’Brien concurred in the judgment and opinion.
OPINION
¶1 At issue in this appeal is whether a school district and its employee were entitled
to immunity under the Local Governmental and Governmental Employees Tort
Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2016)) in an
action filed by a student who was injured during gym class. The circuit court of
Kankakee County entered an order granting summary judgment to the defendants,
Kankakee School District 111 (District) and its employee, Darren Wilbur Dayhoff.
The court concluded that the defendants were immune from liability pursuant to
sections 2-109, 2-201, and 3-108 of the Tort Immunity Act (id. §§ 2-109, 2-201, 3-
108). The appellate court reversed the circuit court’s judgment. 2024 IL App (3d)
230369-U. For the reasons that follow, we reverse the appellate court’s judgment
and affirm the circuit court’s grant of summary judgment for the defendants.
¶2 BACKGROUND
¶3 On February 16, 2018, Kevin Haase (Kevin), individually and as parent and
next friend of Riley Haase (Riley), a student of Kankakee School District 111, filed
a complaint in the circuit court of Kankakee County against the District and
Dayhoff. Dayhoff was a teacher working in the District. On September 12, 2022,
Kevin and Riley, who had reached the age of majority by that date and was now
also a named plaintiff, filed a two-count, second amended complaint against the
District and Dayhoff. Count I alleged willful and wanton conduct. It alleged that on
March 13, 2017, Riley was a student in seventh grade at Kankakee Junior High
School. On that date, at approximately 10:45 a.m., Riley was in his gym class
playing soccer with other students. Dayhoff was a physical education teacher whose
job was to teach and supervise the students during gym class.
¶4 Count I alleged that, shortly after the class began, Dayhoff “provided soccer
balls to the students, went to a seat in the corner of the gym, put his feet up, and
began using his cellphone and/or a computer.” It alleged that Dayhoff knew that
another student in the class, referred to in the complaint as “Student A,” “had a
history of physically violent behavior towards other students and required an
increased amount of supervision for the benefit and safety of other students.” The
second amended complaint alleged that Student A “had been disciplined in the past
for physically violent behavior, including fighting, battery, and unwanted physical
aggression with other students.”
¶5 Count I further alleged that, during the soccer game, Student A “began to
initiate unwanted physical contact between himself and other students playing
soccer, committing prohibited battery and physical aggression, in a manner that had
no connection to otherwise incidental contact between students playing the game.”
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It alleged that Student A “tackled [Riley], causing him to fall and severely injure
his arm, resulting in paralysis of the arm and permanent injury.”
¶6 Count I alleged that the District was liable for the actions or omissions of its
employee and/or agent, Dayhoff. Nowhere in the second amended complaint did it
allege that the District’s own actions or omissions breached its duty of care.
¶7 Paragraph 22 of count I alleged that the District, through its employee and/or
agent Dayhoff, and Dayhoff, individually, breached their duty of reasonable care,
were utterly indifferent, and/or consciously disregarded the safety of the students,
including Riley, in the following manner:
“a. Defendant, DAYHOFF, failed to stop or remove ‘STUDENT A’ from
the aforesaid soccer game when it was clear the student was engaged in a
dangerous course of conduct of physical aggression and battery towards other
students that would cause foreseeable harm if not stopped;
b. Defendant, DAYHOFF, failed to engage in supervision of his class and,
specifically, ‘STUDENT A,’ when he knew or should have known that his
failure to supervise the students and intervene and/or prevent a course of
conduct of battery and physical aggression would cause harm to other students;
c. Defendant, DAYHOFF, knew or should have reasonably known that
‘STUDENT A’ was engaged in a course of conduct of physical aggression and
battery towards other students and did nothing to stop it when it would
foreseeably cause harm;
d. Defendant, DAYHOFF, knew of a course of conduct by ‘STUDENT A’
but consciously disregarded it and continued to use his phone and/or computer
and sit in the corner and failed to take any steps to stop the aforementioned
conduct when it was foreseeably likely to lead to injury of another student.”
¶8 Count II of the second amended complaint incorporated the allegations pled in
count I and alleged that Kevin was obligated to pay the medical expenses of his
minor son, Riley. Count II sought damages under the family expense provision of
the Rights of Married Persons Act (750 ILCS 65/0.01 (West 2016)), a provision
commonly referred to as the Family Expense Act (see id. § 15(a)(1)).
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¶9 The defendants filed a motion for summary judgment. In their motion, they
asserted that they were entitled to complete immunity for both negligence and
willful and wanton conduct under sections 2-109 and 2-201 of the Tort Immunity
Act. See 745 ILCS 10/2-109 (West 2016) (immunizing a local public entity from
liability for an injury resulting from an act or omission of its employee where the
employee is not liable); id. § 2-201 (immunizing a public employee from liability
for an injury resulting from the employee’s act or omission in determining policy
when acting in the exercise of discretion). Alternatively, the defendants asserted
that they were entitled to immunity from liability for negligent supervision because
the plaintiffs failed to allege willful and wanton conduct. See id. § 3-108 (providing
immunity for negligent supervision of an activity on public property unless the
conduct amounts to willful and wanton conduct). The defendants also asserted that
count II of the second amended complaint failed to state a valid cause of action
under the Family Expense Act.
¶ 10 The following facts are taken from the evidentiary materials attached to the
defendants’ summary judgment motion and the plaintiffs’ response. In his
deposition, Riley testified that during the gym class on March 13, 2017, after
Dayhoff took attendance and the students completed their warmup exercises,
Dayhoff provided soccer balls and basketballs to the students. Dayhoff then sat in
a chair in a corner of the gym, put his feet up on a wheeled cart, and opened his
laptop. According to Riley, Dayhoff would sit in a chair and look at his laptop or
his phone “every day” during gym class.
¶ 11 Riley testified that he chose to play soccer with approximately 8 to 10 other
students, while the rest of the class played basketball on the other side of the gym.
The corner where Dayhoff was sitting was closer to the basketball game than the
soccer game. According to Riley’s testimony, the students chose the teams for the
soccer game, and Student A was not on either team. About four minutes into the
game, Student A began “running in and trying to grab the ball” from the students
who were playing soccer. Riley explained that “whoever was kicking the ball to
score a goal for the game, [Student A] would run up and try to push them for the
ball.” This happened “probably” three times. Riley also remembered seeing Student
A “messing around” with students who were not dressed for gym class and were
sitting against the wall.
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¶ 12 Toward the end of class, Riley went to pick up a soccer ball that had been kicked
out of bounds. Riley had no memory of what occurred immediately after picking
up the ball. He next remembered his friend, Jacob Gilreath, helping him walk over
to Dayhoff. Riley was crying, and his head and arm were hurting. Jacob told
Dayhoff that Student A had tackled Riley into a wall. Prior to March 13, Riley had
not had problems with Student A in gym class or in school. Riley testified that he
did not think Student A “personally targeted” him. He thought that Student A was
“messing around too much.” Riley testified that he sustained severe injuries from
the incident and continued to suffer from pain and other symptoms that prevented
him from playing sports.
¶ 13 Jacob testified that during the gym class on March 13, 2017, Student A was
running in and out of the soccer game. He stated that Student A was playing soccer
aggressively and being “unnecessarily rough.” Jacob observed Student A pushing
other students with his body and kicking the soccer ball “unnecessarily hard.” Jacob
testified that he did not report Student A’s behavior because he “didn’t really think
much of it” and it “didn’t harm me in any way.” Jacob gave the following answers
in his deposition:
“Q. Prior to Riley hitting the wall, did you see him make contact with Riley
at all?
A. Other than trying to get the ball from him or, like, something like that.
Q. In a way that you would typically expect when someone’s playing
soccer?
A. Yeah.”
Jacob testified that he looked over at Dayhoff “once or twice” while he was playing
soccer and he saw Dayhoff looking at his laptop.
¶ 14 Dayhoff testified that March 13, 2017, was a “recreational game day” for the
seventh grade boys’ class, which included about 30 students. The students changed
into their uniforms, did warmup exercises, and then split into two groups to play
soccer or basketball. Dayhoff denied the complaint’s allegation that he was sitting
down in the corner during the entire gym class. He stated that he was observing
both groups of students from a corner of the gym and periodically walking around
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the gym to supervise the games. Dayhoff did not recall whether he was using his
cell phone or computer during the class.
¶ 15 Dayhoff testified that he allowed Student A to play soccer, even though Student
A was not dressed in his gym uniform. Dayhoff stated that he did not see Student
A engaging in aggressive behavior or initiating unwanted physical conduct with
other students. He recalled that Student A was “playing soccer just like the rest of
them.” Dayhoff testified that, if he had observed Student A engaging in aggressive
or unwanted physical behavior, he would have removed him from the game and
possibly imposed other consequences.
¶ 16 Dayhoff testified that he saw the incident at issue “from a distance.” He
observed “three or four kids battling for the ball,” including Riley and Student A.
He testified that he did not see exactly what happened after that. However, he
testified that “Riley ended up on the floor and then that’s when they—that’s when
another student brought him to me because he was complaining that his arm hurt.”
Dayhoff testified as follows:
“Q. Am I correct then to your observation from what you saw this was a
normal scrum for a soccer ball and Riley fell down?
A. Yes.
Q. And you did not see Student A do anything out of the ordinary beyond
trying to get a soccer ball, correct?
A. No, I did not yet. Yes.”
¶ 17 Dayhoff testified that he did not recall sending Student A to the office for any
reason during the 2016-17 school year. He did not recall having any disciplinary
problems with Student A throughout the school year, other than Student A
sometimes “goofing around,” not dressing for class, or not participating in class.
Dayhoff expressly denied the complaint’s allegation that he “knew that [Student A]
had a history of physically violent behavior towards other students.” Dayhoff
testified that he had never received a warning, note, or letter from the school
administration or staff about Student A’s disciplinary history, and he had never
looked at Student A’s disciplinary history on the school’s computer system.
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¶ 18 Charles Hensley, the principal, testified that the incident on March 13, 2017,
was deemed an accident. Hensley did not remember whether the administration
considered Student A to be physically aggressive or a person who got into fights.
Hensley testified that there was no policy requiring teachers to review or monitor
the school computer system for a student’s behavioral reports or disciplinary
history.
¶ 19 Fiona Walz was the assistant principal who was responsible for student
discipline for the seventh grade. She explained the procedure for disciplinary
referrals. A teacher or staff member would write a referral for a student who
violated the school’s code of conduct, and Walz would determine the appropriate
disciplinary measures for that student. Walz testified that Student A had received
some referrals, but she did not remember the details. During the 2016-17 school
year, she communicated to the school staff that Student A needed increased
supervision for his wandering. Walz did not inform any school staff member that
Student A had a history of physical aggression because she did not believe he was
physically aggressive. According to Walz, there was no school policy requiring a
school administrator to inform teachers of a particular student’s behavior or
discipline; rather, that decision was made on an individual basis.
¶ 20 Sarah Lenfield, the school counselor, testified that she had worked with Student
A on his issues with peer relationships and socialization. She did not believe he was
physically aggressive. Lenfield testified that Student A was involved in some fights
but that he was not prone to initiating fights and was often the target. Lenfield
testified that she did not receive any notification or request from a teacher regarding
Student A’s physical aggression.
¶ 21 Student A’s disciplinary record for the 2016-17 school year indicated that he
received 29 referrals from August 2016 to March 2017. Of those referrals, three
were for physical aggression, and four were for fighting. The remaining referrals
were for cutting class, being in an unauthorized area, insubordination, and use of
profanity. Five of the seven referrals for physical aggression or fighting occurred
in the first half of the school year.
¶ 22 On July 24, 2023, the circuit court entered an order granting summary judgment
for the defendants. In a memorandum opinion, the circuit court held that the
defendants were immune from liability under sections 2-109 and 2-201 of the Tort
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Immunity Act. 745 ILCS 10/2-109, 2-201 (West 2016). The court held that
Dayhoff’s decisions with respect to his supervision of gym class on the date of the
incident, including his decisions to allow a recreational game day, to allow Student
A to participate in the soccer game, and to refrain from interceding in the soccer
game, involved both the exercise of his discretion and a determination of policy
within the meaning of section 2-201.
¶ 23 The circuit court also found that the allegations in the second amended
complaint were not sufficient to state a cause of action for willful and wanton
conduct. The court concluded that the facts established, at most, inadvertence and
inattentiveness by Dayhoff, which were insufficient to establish willful and wanton
conduct under Illinois law. Thus, even if section 2-201 immunity did not apply,
section 3-108 of the Tort Immunity Act immunized the defendants from liability
for injuries resulting from negligent supervision. Finally, the court found that the
Family Expense Act did not apply as a matter of law.
¶ 24 A divided appellate court panel reversed the circuit court’s judgment and
remanded the case to that court for further proceedings. 2024 IL App (3d) 230369-
U. The majority first held that section 2-201 of the Tort Immunity Act did not entitle
the defendants to summary judgment because there was a disputed issue of fact as
to whether Dayhoff made a conscious discretionary decision or policy
determination. Id. ¶¶ 26-27. With respect to section 3-108, the majority concluded
that the District’s knowledge of Student A’s disciplinary history and its failure to
inform teachers of that history were genuine issues of material fact that precluded
summary judgment. Id. ¶ 31. The majority reasoned as follows:
“We do not reach a decision whether section 3-108 applies instead of
section 2-201. We only find due to the disputed material facts, the court
improperly granted summary judgment. Here, there are numerous facts in
dispute regarding Student A and defendants’ actions or inactions. In particular,
Student A’s reputation and level of aggression are disputed. Riley and Jacob
both said they knew Student A was aggressive before this incident and he got
into fights. But Walz and Lenfield said he was not aggressive or the initiator,
but more so a target. The only communications about Student A that Walz sent
to teachers were about his tendencies to wander, and Lenfield never received
concerns from teachers that Student A exhibited aggressive behavior. However,
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Student A’s disciplinary record for part of the 2016-2017 school year shows
multiple referrals for insubordination and physical aggression. If Student A was
in fact physically aggressive and a danger to other students, and that information
was known to the District, the failure to disseminate such information to his
teachers may be willful and wanton. Knowledge of Student A’s aggression and
the lack of precautions to protect other students may demonstrate indifference
or conscious disregard for students’ safety. Genuine issues of fact exist on the
question of whether defendants’ conduct was willful and wanton. Thus,
summary judgment was improper.” Id.
¶ 25 Having held that summary judgment was improper on count I of the second
amended complaint, the appellate court held that the trial court also erred in
entering summary judgment on count II because count II was derivative of count I.
Id. ¶ 34.
¶ 26 In dissent, Justice Hettel argued that the conduct alleged in the complaint was
not willful and wanton as a matter of law, rendering the defendants immune from
liability under section 3-108. Id. ¶¶ 40, 46 (Hettel, J., dissenting). Justice Hettel
noted that courts in Illinois “have repeatedly held that allegations against school
staff for inadequate supervision are insufficient as a matter of law to establish
willful and wanton conduct.” Id. ¶ 42 (citing 25 cases). He argued, “[w]hile the
disputed facts may raise an issue as to whether Dayhoff was guilty of negligence,
they are insufficient to establish willful and wanton conduct.” Id. ¶ 44. In sum, the
undisputed evidence failed to establish “that Dayhoff ‘was aware or should have
known that the absence of supervision posed a high probability of serious harm or
an unreasonable risk of harm’ [citation] to Riley on the day of the incident.” Id.
¶ 45 (quoting Jackson v. Chicago Board of Education, 192 Ill. App. 3d 1093, 1100
(1989)).
¶ 27 This court granted the defendants’ petition for leave to appeal. Ill. S. Ct. R. 315
(eff. Dec. 7, 2023). We allowed the Illinois Association of School Boards and the
Park District Risk Management Agency to file briefs as amici curiae on behalf of
the defendants’ position. See Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). We also allowed
the Illinois Trial Lawyers Association to file an amicus curiae brief on behalf of
the plaintiffs’ position. Id.
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¶ 28 ANALYSIS
¶ 29 At issue is whether the trial court erred in entering summary judgment in favor
of the defendants based on sections 3-108, 2-109, and 2-201 of the Tort Immunity
Act. Summary judgment may be granted where the pleadings, depositions,
admissions, and affidavits on file, viewed in the light most favorable to the
nonmoving party, demonstrate that there is no genuine issue of any material fact
and the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-
1005(c) (West 2016); Pielet v. Pielet, 2012 IL 112064, ¶ 29. A genuine issue of
material fact exists where the material facts are disputed or reasonable people could
draw different inferences from the undisputed material facts. Mashal v. City of
Chicago, 2012 IL 112341, ¶ 49. This court will construe the record strictly against
the movant and liberally in favor of the nonmoving party. Carney v. Union Pacific
R.R. Co., 2016 IL 118984, ¶ 25. Disposing of litigation on a motion for summary
judgment is a “drastic measure”; as such, a motion “should only be granted if the
movant’s right to judgment is clear and free from doubt.” Seymour v. Collins, 2015
IL 118432, ¶ 42. We review the circuit court’s ruling on a motion for summary
judgment de novo. Id.
¶ 30 The Illinois legislature enacted the Tort Immunity Act in 1965 in response to a
decision of this court that abolished sovereign immunity for local governmental
entities. Andrews v. Metropolitan Water Reclamation District of Greater Chicago,
2019 IL 124283, ¶ 23 (citing Molitor v. Kaneland Community Unit District No.
302, 18 Ill. 2d 11, 24-25 (1959), and Zimmerman v. Village of Skokie, 183 Ill. 2d
30, 43 (1998)). “The Tort Immunity Act governs whether and under what
circumstances local governmental entities are immune from liability in civil
actions.” Id. “Unless a specific immunity provision applies, a public entity is liable
in tort to the same extent as a private party.” Id. The burden is on the public entity
or employee to prove its immunity under the Act, which “must be construed strictly
against the public entity seeking immunity.” Id.
¶ 31 Section 3-108 of the Tort Immunity Act immunizes a local public entity or
public employee for negligent supervision of, or negligent failure to supervise, an
activity on public property. 745 ILCS 10/3-108 (West 2016).
¶ 32 Section 3-108 states:
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“(a) Except as otherwise provided in this Act, neither a local public entity nor a
public employee who undertakes to supervise an activity on or the use of any
public property is liable for an injury unless the local public entity or public
employee is guilty of willful and wanton conduct in its supervision proximately
causing such injury.
(b) Except as otherwise provided in this Act, 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 unless the employee or the local
public entity has a duty to provide supervision imposed by common law, statute,
ordinance, code or regulation and the local public entity or public employee is
guilty of willful and wanton conduct in its failure to provide supervision
proximately causing such injury.” Id.
¶ 33 Willful and wanton conduct is an express exception to the immunities set forth
in section 3-108. The Tort Immunity Act defines “willful and wanton conduct” as
follows:
“ ‘Willful 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. This definition shall apply in any case where a
‘willful and wanton’ exception is incorporated into any immunity under this
Act.” Id. § 1-210.
¶ 34 Generally, the issue of whether a defendant’s conduct is willful and wanton is
a question of fact for the jury. Cohen v. Chicago Park District, 2017 IL 121800,
¶ 27; Murray v. Chicago Youth Center, 224 Ill. 2d 213, 245 (2007). However, a
court may decide the issue as a matter of law on summary judgment if the
undisputed material facts, viewed in the light most favorable to the nonmoving
party, are insufficient to sustain an allegation of willful and wanton conduct. See
Barr v. Cunningham, 2017 IL 120751, ¶ 15; Murray, 224 Ill. 2d at 245; Barnett v.
Zion Park District, 171 Ill. 2d 378, 385 (1996).
¶ 35 In this court, the plaintiffs argue that the defendants were not entitled to
summary judgment under section 3-108 because there were disputed issues of
material fact as to whether the defendants’ conduct was willful and wanton. They
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contend that one disputed issue is whether the District’s failure to inform Dayhoff
of Student A’s history of fighting and physical aggression was willful and wanton.
The appellate court majority agreed with this point. The majority held, “[i]f Student
A was in fact physically aggressive and a danger to other students, and that
information was known to the District, the failure to disseminate such information
to his teachers may be willful and wanton.” 2024 IL App (3d) 230369-U, ¶ 31. The
problem with the plaintiffs’ argument and the appellate court’s holding is that the
plaintiffs never pled that the District had a duty to inform teachers about Student
A’s history and that the District breached such a duty. Count I of the second
amended complaint alleged only that the District, as Dayhoff’s employer, was
vicariously liable for Dayhoff’s willful and wanton conduct under principles of
respondeat superior. There were no allegations that the District was independently
liable for its own willful and wanton conduct. See Hills v. Bridgeview Little League
Ass’n, 195 Ill. 2d 210, 231-32 (2000) (distinguishing claims sounding in respondeat
superior from claims of “direct negligence” against a principal); see also Vancura
v. Katris, 238 Ill. 2d 352, 375 (2010).
¶ 36 It is well established that a plaintiff is bound by the allegations in the complaint
when arguing against a motion for summary judgment. See Caulkins v. Pritzker,
2023 IL 129453, ¶ 36 (“A summary judgment motion is confined to the issues
raised in the complaint, and a plaintiff may not raise new issues not pleaded in his
complaint to support or defeat a motion for summary judgment.” (citing 800 South
Wells Commercial LLC v. Cadden, 2018 IL App (1st) 162882, ¶ 43)); see also
Steadfast Insurance Co. v. Caremark Rx, Inc., 373 Ill. App. 3d 895, 900 (2007)
(“The issues in controversy and the theories upon which recovery is sought are
fixed in the complaint.”). Accordingly, whether the District acted willfully and
wantonly in failing to disseminate information about Student A’s history to his
teachers is not a genuine issue of material fact. Consequently, it cannot be the basis
for defeating summary judgment in this case.
¶ 37 The plaintiffs also argue that whether Dayhoff “knew or should have known”
about Student A’s “history of physical aggression and fighting” are disputed issues
of fact that preclude summary judgment on the issue of willful and wanton conduct.
We disagree. First, whether Dayhoff knew about Student A’s disciplinary history
is not in dispute because the plaintiffs failed to refute Dayhoff’s sworn deposition
testimony on this point. “When a deposition is used in support of a motion or
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response to a motion for summary judgment and is not contradicted by a counter-
affidavit or deposition, the sworn testimony in the deposition must be accepted as
true for purposes of the motion.” Cnota v. Palatine Area Football Ass’n, 227 Ill.
App. 3d 640, 652 (1992). If the nonmoving party fails to provide evidence to
counter the evidence submitted by the moving party, the nonmoving party cannot
rely on his pleadings alone to raise issues of material fact. Purtill v. Hess, 111 Ill.
2d 229, 240-41 (1986).
¶ 38 In their complaint, the plaintiffs alleged that “[a]t all relevant times, defendant,
[Dayhoff], knew that one of the students in his class, ‘STUDENT A,’ had a history
of physically violent behavior towards other students and required an increased
amount of supervision for the benefit and safety of other students.” In response to
that allegation, Dayhoff testified in his deposition that he did not know that Student
A had a history of physically violent behavior toward other students. Dayhoff
testified that he had never received any communications from school administration
or staff concerning Student A’s history, and he had never searched or accessed
Student A’s disciplinary history in the school’s computer system. Dayhoff also
testified that he did not recall having any disciplinary problems with Student A
throughout the school year, other than Student A sometimes “goofing around,” not
dressing for class, or not participating in class. The plaintiffs filed no counter-
affidavit or deposition testimony to refute Dayhoff’s sworn testimony that he did
not know about Student A’s history. 1
¶ 39 Dayhoff’s uncontradicted deposition testimony established that he was not
aware of Student A’s disciplinary history. Because the plaintiffs have not presented
any evidence to refute Dayhoff’s sworn deposition testimony and to support the
allegation in their complaint that Dayhoff knew that Student A “had a history of
1
Although the plaintiffs’ brief cites e-mails that were sent to Student A’s teachers, the
e-mails do not establish that Dayhoff knew about Student A’s history prior to March 13,
2017. In an e-mail dated August 26, 2016, the school counselor explained that Student A
had participated in the “moving forward process” before the start of the school year. She
described Student A’s goals for the year regarding grades, homework, and “need[ing] to
use the adults in the building when he becomes angry or has conflict with a peer.” There
were no references to Student A’s history of physical aggression toward other students.
The other e-mail cited by the plaintiffs is not relevant to the incident at issue, as it was
dated January 17, 2018.
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physically violent behavior towards other students and required an increased
amount of supervision,” it was proper for the trial court to find that Dayhoff was
not aware of a history of physically violent behavior by Student A.
¶ 40 The plaintiffs also assert that there is a genuine issue of material fact as to
whether Dayhoff “should have known” about Student A’s history of physically
violent behavior toward other students. No evidence in the record supports this
assertion. To the contrary, Hensley, the school principal, testified that there was no
policy requiring teachers to review or monitor the school computer system for a
student’s behavioral reports or disciplinary history. Walz, the assistant principal,
testified that there was no school policy requiring a school administrator to inform
teachers of a particular student’s behavior or discipline. She also testified that she
did not inform any school staff member that Student A had a history of physical
aggression because she did not believe he was physically aggressive. In the absence
of any contrary evidence, we reject the plaintiffs’ contention that there is a genuine
issue of material fact as to whether Dayhoff should have been aware of Student A’s
history. See Cincinnati Insurance Co. v. Argubright, 151 Ill. App. 3d 324, 329
(1986) (mere conclusions of fact unsupported by evidence cannot create a triable
issue of fact to preclude summary judgment).
¶ 41 Having determined that there are no genuine issues of material fact, we turn to
whether the defendants are entitled to a judgment as a matter of law on the issue of
willful and wanton conduct. The facts show that during the gym class on March 13,
2017, Student A was running in and out of the soccer game and pushing into other
players while attempting to get the ball. Jacob testified that Student A was playing
soccer aggressively and being “unnecessarily rough.” He observed Student A
pushing other students with his body and kicking the soccer ball “unnecessarily
hard.” He then saw Student A “hit Riley into the wall.” Both Riley and Jacob
testified that they saw Dayhoff sitting in a corner of the gym and looking at his
laptop at various times during the class. Dayhoff testified that he did not see Student
A engaging in aggressive behavior or initiating unwanted physical conduct with
other students. He recalled that Student A was “playing soccer just like the rest of
them.” Dayhoff described the incident that resulted in Riley being injured as “three
or four kids battling for the ball” and “a normal scrum for a soccer ball.” Riley
testified that he had no prior problems with Student A and that he did not think
Student A “personally targeted” him. Dayhoff testified that he did not have any
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disciplinary problems with Student A throughout the school year, other than
Student A sometimes “goofing around,” not dressing for class, or not participating
in class.
¶ 42 Unlike other cases where courts found evidence of willful and wanton conduct
based on the activity at issue, there is no evidence in the record in this case that
playing indoor soccer is an inherently dangerous activity. Compare Murray, 224
Ill. 2d at 246 (allowing students to use a mini-trampoline without following safety
guidelines was “well known” to be associated with a risk of spinal cord injuries),
and Hadley v. Witt Unit School District 66, 123 Ill. App. 3d 19, 20, 23 (1984)
(teacher in industrial arts class failed to act when he saw students engaged in the
“dangerous activity” of hammering a piece of scrap metal through a hole in an
anvil), with Barr, 2017 IL 120751, ¶ 23 (“no evidence presented at trial that floor
hockey played with plastic hockey sticks and squishy balls is an obviously
dangerous activity”).
¶ 43 This record also lacks evidence that Dayhoff’s failure to supervise the students
playing soccer posed a specific threat of injuries to Riley. Compare Doe v. Chicago
Board of Education, 213 Ill. 2d 19, 22, 29 (2004) (finding evidence of willful and
wanton conduct, where students were left unsupervised on a school bus and a
student was sexually assaulted by another student who “had a deviant sexual
history” and was the subject of a protective plan requiring that he never be left
unsupervised with other children), and Gammon v. Edwardsville Community Unit
School District No. 7, 82 Ill. App. 3d 586, 589-90 (1980) (finding evidence of
willful and wanton conduct where a guidance counselor dismissed the plaintiff and
another student from her office following a confrontation, although the counselor
was previously warned of the offender’s threats to the plaintiff, and the offender
then punched the plaintiff in the eye), with Jackson, 192 Ill. App. 3d at 1100 (no
evidence of willful and wanton conduct where a teacher left a class unsupervised
for 20 minutes and a student threw a chalkboard clip that struck and injured another
student).
¶ 44 In this case, the plaintiffs alleged that Dayhoff should have paid attention to the
students playing soccer instead of looking at his laptop. They alleged that, if
Dayhoff had properly supervised the students, he would have seen Student A acting
aggressively and removed him from the soccer game, which would have prevented
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Riley from being injured. Construing the pleadings and evidentiary materials in the
light most favorable to the plaintiffs, we find that the facts support a claim of
negligent failure to supervise an activity on public property, for which section 3-
108 provides immunity, but they do not rise to the level of willful and wanton
conduct as set forth in the Tort Immunity Act.
¶ 45 The legislature provided a specific definition of “willful and wanton conduct”
in the Act, “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,” and stated that “[t]his definition
shall apply in any case where a ‘willful and wanton’ exception is incorporated into
any immunity under this Act.” 745 ILCS 10/1-210 (West 2016). “The language of
section 1-210 is clear and unambiguous.” Murray, 224 Ill. 2d at 235. This court
must follow the statute as written by the legislature and may not rewrite it to obtain
a particular result. See People v. Garner, 147 Ill. 2d 467, 475-76 (1992). We
acknowledge that, in an ideal school situation, it is reasonable to expect teachers,
such as Dayhoff, to be attentive to their students when they are participating in
physical activities during gym class. Dayhoff clearly was not. However, the
legislature unambiguously intended to immunize Illinois school districts from
liability for the type of negligent conduct alleged in this case. The undisputed
material facts, as set forth above, fall short of establishing either intentional conduct
or an “utter indifference to or conscious disregard for the safety of others,” as a
matter of law, as would be required for a finding of willful and wanton conduct by
Dayhoff. See 745 ILCS 10/1-210 (West 2016).
¶ 46 On this record, we conclude that the defendants established they were immune
from liability under section 3-108 of the Tort Immunity Act and, thus, were entitled
to summary judgment. Because we have found that section 3-108 applies, we need
not address whether sections 2-109 and 2-201 of the Tort Immunity Act also apply
to shield the defendants from liability. Furthermore, the circuit court correctly
determined that the defendants were entitled to summary judgment on count II of
the second amended complaint because count II is dependent on the defendants’
liability under count I.
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¶ 47 CONCLUSION
¶ 48 For the foregoing reasons, we reverse the judgment of the appellate court and
affirm the judgment of the circuit court of Kankakee County granting summary
judgment in favor of the defendants.
¶ 49 Appellate court judgment reversed.
¶ 50 Circuit court judgment affirmed.
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