The opinion
Docket No. 99457.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
RYAN MURRAY et al., Appellants, v. CHICAGO YOUTH
CENTER et al., Appellees.
Opinion filed February 16, 2007.
JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Plaintiffs, Ryan Murray and his mother, Joyce Mayers, brought an
action against defendants, the Chicago Board of Education (the
Board), Chicago Youth Centers (CYC), and CYC employee James
Collins (Collins) to recover for serious injuries suffered by Ryan and
for medical expenses incurred as a result of a mini-trampoline
accident. The circuit court of Cook County first denied, but ultimately
granted defendants’ motions for summary judgment, holding
defendants immune from liability pursuant to sections 2–201 and
3–108(a) of the Local Governmental and Governmental Employees
Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2–201,
3–108(a) (West 1992)).
The appellate court affirmed the circuit court’s grant of summary
judgment, on the separate grounds alleged in CYC and Collins’s
motion for summary judgment. 352 Ill. App. 3d 95. The appellate
court held section 3–109(c)(2) of the Tort Immunity Act (745 ILCS
10/3–109(c)(2) (West 1992)) was applicable and, accordingly, the
immunity afforded defendants by the Tort Immunity Act did not
extend to willful and wanton acts. 352 Ill. App. 3d at 105. However,
the appellate court also held, 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.
We allowed plaintiffs’ petition for leave to appeal. 177 Ill. 2d R.
315. On July 5, 2006, we issued an opinion affirming the judgment of
the appellate court, but subsequently allowed plaintiff’s petition for
rehearing. 210 Ill. 2d R. 367. We now reverse the judgments of the
appellate and circuit courts, and remand for further proceedings.
BACKGROUND
On December 14, 1992, Ryan Murray was a 13-year-old student
at Byrn Mawr School, operated by defendant, the Chicago Board of
Education (Board). On that day, Ryan was participating in an
extracurricular lunch period tumbling class sponsored by the Board
and conducted by defendants, Chicago Youth Center (CYC) and its
employee, James Collins. Ryan apparently attempted to perform a
forward flip off a mini-trampoline and landed on his neck or shoulders.
As a result of the accident, Ryan is now a quadriplegic.
Ryan and his mother, Joyce Mayer, brought suit against
defendants. Plaintiffs’ second amended complaint alleged that
defendants, “with an utter indifference and conscious disregard for the
safety of Ryan Murray, were willful and wanton.” Plaintiffs further
alleged, inter alia, that defendants knowingly and intentionally or with
reckless disregard, failed to supply appropriate safety and protective
equipment, failed to supply a spotter, failed to warn Ryan of the risk
of spinal cord injury, and failed to stop the class from using the
trampoline unsafely. Plaintiffs further alleged the Board was willful
and wanton in failing to supply a harness and safety belt, and
supplying inadequate gymnastic floor mats rather than proper
trampolining “landing mats.” Plaintiffs’ complaint also included claims
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of negligence against defendants, and product liability claims against
Sports Supply Group, identified in earlier pleadings as BSN Sports,
Inc., and GSC Sports. Those claims are not subjects of this appeal.
In his discovery deposition, James Collins testified that CYC
offered the tumbling class at Bryn Mawr with the permission of the
Board. Beginning in the spring 1992 semester, Collins, a CYC
employee, began instructing the tumbling class. Collins had a degree
in physical education and limited experience with tumbling,
gymnastics, and the mini-trampoline. Collins had no license or
certificate qualifying him as a trampoline instructor or teacher. Collins
had never taught the mini-trampoline to anyone prior to instructing the
tumbling class at Bryn Mawr, but had acted as a “spotter” under the
supervision of an instructor.
According to Collins, Ryan began taking the extracurricular
tumbling class offered by CYC at Bryn Mawr in the spring 1992 term,
when he was in the seventh grade. The tumbling class was held two
days each week and lasted about 50 minutes. Between 16 and 20
students participated in the tumbling class on a given day. No other
teachers or instructors supervised the tumbling class.
Typically, the students would come to the gym and sign in before
class. Students were permitted to wear loose-fitting clothes and socks
while tumbling. Class would always begin with stretching exercises.
The students would then work on whatever gymnastic maneuver
Collins planned to practice that day. For the most part, tumbling class
consisted of learning and practicing floor maneuvers, including
forward rolls, dive rolls, and cartwheels. 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 20 minutes of
the class period to “freelance” and to “show out” or try to impress
someone. 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 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
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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. Collins did
not always provide spotters when students performed maneuvers
outside of those he was teaching or beyond the student’s skill level.
On December 14, 1992, the tumbling class proceeded as usual.
Collins was the only instructor for 18 to 22 students. 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, and rotated in a forward flip. He then
landed on the mats on his upper body, sustaining injuries and
rendering him a quadraplegic. Collins was in the gymnasium at the
time of the accident, but was standing a few yards away, talking with
a female student. He had not spotted the students using the mini-
trampoline, nor had he assigned other students to act as spotters on
the day of Ryan’s accident. Collins saw Ryan approach 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. 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 Murray testified during his discovery deposition that he
never saw Collins “spot” anyone off of the mini-trampoline and that
his injury occurred during the “freelance” part of the class. Ryan had
only done a forward flip 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 a forward flip could cause him to be seriously
injured or paralyzed. The worst injury he imagined was probably a
broken leg or arm. Ryan testified that when he was injured, his body
landed partially on the mat and partially on the floor. Ryan stated that
he felt a lot of pain in his neck and could not get up.
The only expert opinion offered by the parties in this case was
plaintiffs’ retained expert, Marc Rabinoff, a doctor of education and
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a tenured professor of human performance sport and leisure studies at
Metropolitan State College of Denver in Colorado. He reviewed the
statements of witnesses, depositions, photographs, and exhibits
provided by plaintiffs’ attorneys and rendered a series of opinions on
issues of liability in this case. The opinions were furnished to
defendants in response to interrogatories, and he was deposed by
defendant’s attorneys. Dr. Rabinoff had more than 30 years of
experience in his field and has testified in several cases as a gymnastics
expert.
Dr. Rabinoff 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 those maneuvers require considerable skill,
spotting, and appropriate landing mats. The minimum mat requirement
was not met, and there were absolutely no spotters. According to Dr.
Rabinoff, the tumbling program was one of the worst environments he
had ever seen and violated every single safety standard. In his opinion,
Ryan Murray’s injury would have been prevented had more than two
inches of mat been used on the landing surface.
Dr. Rabinoff testified it was Collins’ job, as the tumbling
instructor, to know the maneuver each gymnast intended to execute
and that Collins’ supervision and instruction were 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. In Dr. Rabinoff’s opinion, Collins was 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 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
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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 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 not enough mats were 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. The report indicates that in expressing his
opinions on the issues of liability and probable cause, he relied on his
education, training and experience, the other materials furnished to
him, and guidelines and warnings on use of mini-trampolines and
trampolines issued by the United States Gymnastics Federation
(USGF), the American Alliance for Health, Physical Education,
Recreation and Dance, the National Collegiate Athletic Association
(NCAA), the American Academy of Pediatrics (AAP), the United
States Product Safety Commission, and the American Society for
Testing and Materials. Dr. Rabinoff’s report quotes extensively from
the USGF safety manuals in effect at the time of Ryan’s injury:
“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
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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 wrestling 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.G.F. 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.
***
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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.”
Dr. Rabinoff’s opinions and deposition were submitted to the
court in response to CYC and Collins’ motion for summary judgment
alleging that the pleaded facts did not constitute willful and wanton
conduct as a matter of law, in addition to contending immunity
applied. The Board’s motion for summary judgment was limited to the
issue of immunity and did not address the willful and wanton conduct
issue.
The circuit court ultimately granted defendants’ motions for
summary judgment. The circuit court held, pursuant to sections 2–201
and 3–108(a) of the Tort Immunity Act (745 ILCS 10/2–201,
3–108(a) (West 1992)), Collins, CYC, and the Board were entitled to
immunity from all of plaintiffs’ claims. The circuit 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 court did not revisit the earlier
denial of CYC and Collins’ motion on the willful and wanton conduct
issue.
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The appellate court affirmed the circuit court’s grant of summary
judgment, but held, because trampolining is a hazardous recreational
activity, section 3–109 of the Tort Immunity Act is the provision that
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 plaintiff’s injury resulted from defendants’
willful and wanton conduct. 352 Ill. App. 3d at 105. Nevertheless, the
appellate court held, based on the facts drawn from plaintiffs’ 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.
ANALYSIS
At the time of Ryan’s accident in 1992, sections 2–201 and
3–108(a) of the Tort Immunity Act provided:
“§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).
Plaintiffs do not dispute that, under ordinary circumstances,
sections 2–201 and 3–108(a) of the Tort Immunity Act would provide
defendants with absolute immunity for discretionary and supervisory
conduct. Plaintiffs maintain, however, the appellate court correctly
determined that section 3–109 of the Tort Immunity Act, that sets
forth the scope of immunity afforded local governmental entities and
their employees in relation to hazardous recreational activities, applies
in this case.
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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 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.
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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).
Accordingly, plaintiffs maintain that the immunity afforded defendants
is limited by the exceptions found in section 3–109.
Plaintiffs also contend, however, that the appellate court erred
when it determined there were no genuine issues of material fact on
whether any of defendants’ acts or omissions amounted to willful and
wanton conduct. 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 their claims within the section 3–109(c)(1) exception to the
general grant of immunity. Plaintiffs argue the appellate court erred
because it failed to consider whether these allegations survived
summary dismissal.
Defendants, on the other hand, argue the appellate court erred
when it ruled that the limited immunity afforded by section 3–109 of
the Act supercedes the blanket immunity otherwise provided by
sections 2–201 and 3–108(a) of the Act. Defendants ask this court to
affirm the grant of summary judgment in their favor, but on the
grounds that sections 2–201 and 3–108(a) of the Act provide
defendants with absolute immunity from all claims that 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 negligent acts,
the appellate court’s ruling that defendants could not be shown to
have acted willfully or wantonly should be affirmed.
This court’s review of a circuit court’s grant of summary judgment
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 there is no genuine issue of material
fact 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).
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In granting summary judgment, the circuit court was required to
interpret the Tort Immunity Act. The proper construction of a statute
is a question of law, subject to de novo review. Barnett v. Zion Park
District, 171 Ill. 2d 378, 385 (1996). The main goal in construing a
statute 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 replace sovereign
immunity, abolished by this court in Molitor v. Kaneland Community
Unit District No. 302, 18 Ill. 2d 11 (1959). 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”)). The Act protects
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 purpose of the Act is to prevent
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, 171 Ill. 2d at 386; see also Moore v.
Green, 219 Ill. 2d 470 (2006). Unless an immunity provision applies,
municipalities are liable in tort to the same extent as private parties.
See Barnett, 171 Ill. 2d at 386.
The overarching issue in this appeal is whether the general grant
of immunity and the exceptions for hazardous recreational activity
found in section 3–109 of the Act apply and, if so, whether section
3–109 takes precedence over sections 2–201 and 3–108(a) of the Act.
We find 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,
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together 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 public employees and the public employer with immunity against
allegations that challenge discretionary policy determinations.
Arteman v. Clinton Community Unit School District No. 15, 198 Ill.
2d 475, 487 (2002); 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): “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, 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). We note that this court’s prior determinations on
the scope of the immunities provided by sections 2–201 and 3–108(a)
were based on the fact that neither provision contained an explicit
exception for willful and wanton conduct. Section 3–108(a) was
subsequently 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 considered the interplay between the
immunities provided by sections 2–201 and 3–108(a) and the limited
immunity provided by section 3–109. Our appellate court, however,
has considered this issue. In McGurk, 287 Ill. App. 3d 1059, a student
received head injuries while playing football. The student and his
guardian brought suit against the school district, alleging the school
district was negligent in its provision and modification of the football
helmet used by the student. The appellate court held that the selection
or modification of the school equipment was a discretionary
determination immunized under section 2–201 of the Tort Immunity
Act. However, the appellate 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
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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
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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.
Here, the appellate court rejected the reasoning in Johnson, stating
its belief that the Johnson court did not give sufficient consideration
to the “[e]xcept as otherwise provided by this Act” language prefacing
the section 3–108(a) immunity provision. 352 Ill. App. 3d at 109. We
agree with the appellate court’s conclusion.
It is 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 their employees
to be absolute and applicable in all circumstances. In section 3–108(a)
the legislature included the conditional language “[e]xcept as
otherwise provided by this Act,” indicating that the immunity afforded
by this provision would not apply if other exceptions or limitations of
the Act were applicable. In section 2–201 of the Act the legislature
included the prefatory language “except as otherwise provided by
Statute,” indicating that section 2–201 immunity is contingent upon
whether other provisions, either within the Act or some other statute,
creates exceptions to or limitations on that immunity.
Although we were not called upon to decide this exact issue in
Epstein, our comments in Epstein lend support for our determination
here. In Epstein, this court examined the immunity afforded under
section 3–108(a) for failure to supervise an activity on public
property. We concluded:
“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
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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 did not examine the “except as otherwise provided by Statute”
provision of section 2–201 in Epstein.
Even when an immunity provision does not contain conditional
language as 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 applicable
provision. See Moore, 219 Ill. 2d 470; DeSmet, 219 Ill. 2d at 521
(exception to the application of section 4–102 immunity may be found
“where a legislative enactment 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 (providing 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.
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 plaintiffs, there is “otherwise
provided” in the Act a provision directly addressing the situation
giving rise to Ryan’s injury. Ryan was injured when he was
trampolining during an extracurricular tumbling class.
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
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voluntary participation in a] hazardous recreational activity” taking
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 the legislature intended
to hold local governmental entities and their employees to a higher
standard of care for hazardous recreational activities, like
trampolining. 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 now
address the applicability of those exceptions to this case.
The most fundamental rule in statutory construction is to give
effect to the legislative intent. U.S. Bank National Ass’n v. Clark, 216
Ill. 2d 334, 346 (2005). The language of the statute is the best
indication of the legislature’s intent. U.S. Bank National Ass’n, 216
Ill. 2d at 346. Statutory language must be given its plain and ordinary
meaning, and courts are not free to construe a statute in a manner that
alters the plain meaning of the language adopted by the legislature.
U.S. Bank National Ass’n, 216 Ill. 2d at 346. If the language of a
statute is clear, this court must give effect to its plain and ordinary
meaning without resort to other aids of statutory construction. U.S.
Bank National Ass’n, 216 Ill. 2d at 346, citing King v. First Capital
Financial Services Corp., 215 Ill. 2d 1, 26 (2005), quoting In re
Marriage of Beyer, 324 Ill. App. 3d 305, 310 (2001).
Section 1–210 of the Act was adopted in 1986. That section
provides: “ ‘[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.”
(Emphasis added.) 745 ILCS 10/1–210 (West 2002). The language of
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section 1–210 is clear and unambiguous. Applying fundamental rules
of statutory construction, the statutory definition of “willful and
wanton conduct” applies to every section of the Act containing that
term, including section 3–109(c). The term “willful and wanton”
includes a range of mental states from actual or deliberate intent to
cause harm, to utter indifference for the safety or property of others,
to conscious disregard for the safety of others or their property. In
addition, the plain meaning of section 1–210 is entirely consistent with
this court’s long-standing common law precedents.
Defendants argue that the 1986 amendments to the Tort Immunity
Act narrowed the definition of “willful and wanton conduct” to
deliberate or conscious conduct disregarding the safety of others and
that the pleadings and facts adduced in discovery do not meet that
narrow definition. According to defendants, the common law
definition of “willful and wanton” does not apply in Tort Immunity
Act cases. We disagree with defendants. A review of this court’s
precedent defining willful and wanton conduct is instructive.
In Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569
(1946), this court explained willful and wanton conduct as follows:
“A wilful and wanton injury must have been intentional or
the act must have been committed under circumstances
exhibiting a reckless disregard for the safety of others, such as
a failure, after knowledge of impending danger, to exercise
ordinary care to prevent it or a failure to discover the danger
through recklessness or carelessness when it could have been
discovered by the exercise of ordinary care. [Citations.] The
question whether a personal injury has been inflicted by wilful
or wanton conduct is a question of fact to be determined by
the jury.” Schneiderman, 394 Ill. at 583.
In Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429
(1992), this court was presented with the question of whether the
plaintiff’s alleged contributory negligence could be compared with the
particularly egregious willful and wanton conduct of the police
officers involved, thus entitling the municipality to a reduction in the
damages award reflecting the plaintiff’s percentage of fault. In
interpreting section 1–210 of the Tort Immunity Act, the court stated
it was evident “that the legislature did not intend to shield
municipalities whose conduct shows a deliberate intention to cause
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harm or a complete indifference to the safety of others.” (Emphasis
added.) Burke, 148 Ill. 2d at 443. 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.
In the confined context of the issue of comparative negligence, the
court initially noted that the Illinois Pattern Jury Instructions, Civil,
No. 14.01 (2d ed. 1971), definition of willful and wanton conduct was
“virtually identical” to the definition found in section 1–210 of the Act
and to the pleading requirements for willful and wanton conduct.
Burke, 148 Ill. 2d at 448, citing Adkins v. Sarah Bush Lincoln Health
Center, 129 Ill. 2d 497, 518 (1989). Citing earlier authority, the court
further noted that, in the context of punitive damages, 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.” ’ [Citation.]” Burke, 148 Ill. 2d at 448.
The court acknowledged that Illinois appellate court cases have
found willful and wanton conduct where the circumstances involved
a “ ‘ “conscious and deliberate disregard for the rights or safety of
others.” ’ ” Burke, 148 Ill. 2d at 449, quoting Bresland v. Ideal Roller
& Graphics Co., 150 Ill. App. 3d 445, 458 (1986), quoting Morrow
v. L.A. Goldschmidt Associates, Inc., 126 Ill. App. 3d 1089, 1095
(1984). The court termed this type of willful and wanton conduct
“quasi-intentional.” Burke, 148 Ill. 2d at 449.
The court then examined and adopted the Restatement (Second)
of Torts §500 (1965) view that “there is a qualitative difference
between negligence and willful and wanton conduct. Burke, 148 Ill.
2d at 450. The court noted that the Restatement uses the term
“reckless conduct,” rather than “willful and wanton conduct.” Burke,
148 Ill. 2d at 449.
After carefully considering Illinois precedent, federal decisions,
and cases from our sister states, as well as learned treatises and
relevant statutes, the court concluded that “[w]illful and wanton
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conduct is found where an act was done ‘ “with actual intention or
with a conscious disregard or indifference for the consequences when
the known safety of other persons was involved.” ’ ” (Emphasis
added.) 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). The court indicated that “[a] determination of willful and
wanton conduct will be based on the facts of any given case.” Burke,
148 Ill. 2d at 451. The court ultimately 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.
This court did not imply by its holding in Burke that cases subject
to tort immunity defenses require application of a more restrictive
definition of willful and wanton conduct than applicable at common
law. In Burke, a jury had already found the municipality liable for
willful and wanton conduct and that finding was not challenged on
appeal. Rather, Burke simply held that a defendant’s liability for willful
and wanton conduct could not be reduced by a plaintiff’s contributory
negligence.
In Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267 (1994), 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,
this court acknowledged legal commentary critical of Burke, and
determined 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., when there has been ‘a failure,
after knowledge of impending danger, to exercise ordinary care to
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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,
394 Ill. at 583. Accordingly, the court found that contribution
principles could be applied in cases when 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 willful and wanton
conduct. Poole v. City of Rolling Meadows, 167 Ill. 2d 41, 48 (1995).
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 the 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 the plaintiff’s award by his contributory negligence. The
trial court then granted the plaintiff’s motion to reinstate the jury
award, accepting the plaintiff’s argument that damages based on
willful and wanton misconduct would not be reduced by a plaintiff’s
contributory negligence. This court noted that the jury did not
characterize the defendants’ misconduct as either intentional or
reckless, and therefore concluded that the trial court erred in
reinstating the full verdict in favor of the plaintiff without reduction
for his claimed contributory fault. Poole, 167 Ill. 2d at 49-50.
In American National Bank & Trust Co. v. City of Chicago, 192
Ill. 2d 274 (2000), this court reversed a trial court’s determination that
a plaintiff’s complaint did not sufficiently allege willful and wanton
misconduct. The 11-count complaint sought recovery from the City
under the Wrongful Death and Survival Act, alleging negligence and
willful and wanton misconduct. The complaint also sought recovery
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 the paramedics acted willfully and wantonly in failing
to try the 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. The defendants claimed immunity
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from liability for the decedent’s death pursuant to the Emergency
Medical Services (EMS) Systems Act (210 ILCS 50/1 et seq. (West
1994)).
This court rejected the defendants’ tort immunity 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 the
plaintiff’s complaint were sufficient to withstand a motion to dismiss
and whether the defendants’ conduct was wilful and wanton was a
question for the trier of fact American National Bank, 192 Ill. 2d at
285-86.
As plaintiffs note in their reply brief, when the General Assembly
added the definition of willful and wanton conduct to the Tort
Immunity Act by Public Act 84–1431, article I, section 2, effective
November 25, 1986, it copied the exact language of the applicable
jury instruction (Illinois Pattern Jury Instructions, Civil, No. 14.01 (3d
ed. 1993) (IPI Civil 3d No. 14.01)). We agree with plaintiffs that the
definition of willful and wanton had a settled judicial meaning at that
time. One of the primary principles of statutory construction
establishes the presumption that the legislature intended the statute to
be interpreted in accordance with prior case law:
“When a statute employs words having a well-known legal
significance, courts will, in the absence of any expression to
the contrary, assume that the legislature intended the words to
have that meaning.” Harris v. Manor Healthcare Corp., 111
Ill. 2d 350, 364 (1986).
This court has consistently applied the definition of willful and
wanton conduct stated in IPI Civil 3d No. 14.01 to all cases, whether
on a statutory immunity provision, or at common law. A comparison
of IPI Civil 3d No. 14.01 and the 1986 statutory language of section
1–210 of the Tort Immunity Act, compels the conclusion that the
statute, containing language virtually identical to IPI Civil 3d No.
14.01, is a codification of existing law. In fact, the comment to IPI
Civil 3d No. 14.01 specifically notes that “[a] similar definition of
willful and wanton conduct is found in §1–210 of the Local
Governmental and Governmental Employees Tort Immunity Act (745
ILCS 10/1–210).” IPI Civil 3d No. 14.01, Comment. We find nothing
in the Act indicating the General Assembly intended the definition of
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“willful and wanton” conduct to differ from its well-established legal
meaning.
We note that the legislative history of the 1986 amendment
supports our conclusion. During the legislative debates,
Representative Greiman stated that “the law was previously and
remains that you have to have willful and wanton for them to be liable
and that is, indeed, what it remains. It was the law and is the law still.”
84th Ill. Gen. Assem., House Proceedings, June 30, 1986, at 34
(statements of Representative Greiman).
Between 1986, when section 1–210 was enacted, and 1998, when
the legislature again amended this specific section, this court decided
Ziarko, 161 Ill. 2d 267, Poole, 167 Ill. 2d 41, and Pfister v. Shusta,
167 Ill. 2d 417 (1995). Each of these cases made clear that this court
drew no distinction between the Tort Immunity Act and common law
definitions of willful and wanton conduct. The legislature is deemed
to have known of those cases and acquiesced in them. R.D. Masonry,
Inc. v. Industrial Comm’n, 215 Ill. 2d 397, 403 (2005). Consequently,
we reject defendants’ argument that the 1986 amendments to the Tort
Immunity Act imposed a heightened willful and wanton standard. We
hold that the 1986 amendments to the Tort Immunity Act did not
change the definition as explained and interpreted by this court.
Defendants also argue that the 1998 amendment to the Tort
Immunity Act shows the General Assembly’s intent to replace the
common law definition of willful and wanton conduct with a
heightened definition more akin to intentional misconduct. The 1998
amendment to section 1–210 added the following language:
“This 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 1998).
Defendants acknowledge, however, that the 1998 amendments to the
Tort Immunity Act were not in effect at the time of Ryan’s accident.
Thus, the legislative intent of the 1998 amendments is not properly
before this court, and it would be inappropriate for this court to
consider the legislative intent in passing legislation that was not even
in effect at the time of Ryan’s accident. Accordingly, we express no
opinion on the effect, if any, of the 1998 amendment on willful and
wanton liability governed by the Tort Immunity Act.
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CYC and Collins argue that in enacting section 3–109(c)(2) the
legislature declined to include “omissions” within the ambit of the
exception to tort immunity. CYC and Collins contrast this section with
the complete immunity granted in cases of a “failure to supervise an
activity” under section 3–108(a) and conclude that the phrase “act of
willful and wanton conduct” in section 3–109(c)(2) does not include
“failure to supervise” and it refers instead to overt activity. CYC and
Collins offer no authority for this proposition.
In providing for construction and application of the Tort Immunity
Act, the legislature specifically defined “willful and wanton conduct”
in section 1–210 as “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.” The language of showing an “utter indifference to
or conscious disregard for safety of others or their property”
unquestionably contemplates conduct by omission. Thus, there can be
no serious contention that this definition does not include the failure
to take action when that omission proximately causes injury.
In other contexts, the legislature had provided that the term “act”
is not limited to overt activity. For instance, the word “act” is
specifically defined in the Criminal Code to include “a failure or
omission to take action.” 720 ILCS 5/5–2 (West 1992). The Domestic
Violence Act provides that “Any act of omission or commission by
any law enforcement officer *** shall not impose civil liability upon
the law enforcement officer *** unless the act is a result of willful or
wanton misconduct.” 750 ILCS 60/305 (West 1992). The legislature
thus expressly provided a willful and wanton exception applicable to
acts of omission as well as overt conduct. We conclude that there is
no basis in the law for CYC and Collins’ restrictive definition of the
phrase “act of willful and wanton conduct” as used in section
3–109(c)(2) and we reject this argument.
Plaintiffs also claim that the facts alleged in their amended
complaint 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 acknowledge that the appellate court did not
expressly address the “failure to guard or warn” exception to
immunity. We find that this issue was not fully briefed and argued by
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the parties and, therefore, decline to address whether the section
3–109(c)(1) exception to immunity is applicable in this case.
We now consider whether the appellate court erred in affirming
the circuit court by finding that defendants’ conduct was not willful
and wanton. Plaintiffs contend the appellate court erred by granting
summary judgment in defendants’ favor. Plaintiffs maintain that the
question of whether defendants’ conduct was willful and wanton is a
question of fact for the jury. Calloway v. Kinkelaar, 168 Ill. 2d 312,
326 (1995). Plaintiffs assert that the wealth of materials submitted in
response to defendants’ motions for summary judgment demonstrates
“a genuine and material triable issue of fact” on the question of
defendants’ willful and wanton conduct. Specifically, plaintiffs argue
willful and wanton conduct is present based on the evidence 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 that
defendants failed to exercise care to prevent Ryan’s injury. Plaintiffs
note that Collins was not licensed or certified to teach trampolining
and that he had limited experience with the device. Plaintiffs 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.
As we have noted, in general, “[w]hether conduct is ‘willful and
wanton’ is ultimately a question of fact for the jury.” Doe v. Calumet
City, 161 Ill. 2d at 390; Calloway, 168 Ill. 2d at 326. In some
circumstances, it is necessary for the court to decide as a matter of
law whether the plaintiff’s complaint alleges sufficient facts of a
defendant’s willful and wanton conduct to create a jury question.
Calumet City, 161 Ill. 2d at 390.
Recently, in Doe v. Chicago Board of Education, 213 Ill. 2d 19
(2004), this court affirmed the 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 traveling
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
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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.
Summary judgment is appropriate only when the pleadings,
depositions and affidavits in the record show 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, because plaintiffs are not
required to prove their cases at the summary judgment stage. Jackson
v. TLC Associates, Inc., 185 Ill. 2d 418, 424 (1998). Applying these
principles to a review of the summary judgment pleadings in this case
establishes that a triable issue of material fact exists on whether
defendants are guilty of willful and wanton conduct.
The 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 quadraplegia, can result from an improperly executed
somersault. The evidence also indicates that 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 the risk of injury incorporated into the
teaching process. The evidence also indicated that trained spotters and
safety equipment were not provided at all times, and none of the
United States Gymnastic Federation Safety Manual guidelines were
followed. Hence, genuine and material triable issues of fact exist in
this case on the question of whether defendants are guilty of willful
and wanton conduct. Under the circumstances, it was error for the
appellate court to affirm summary judgment.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the
appellate court and the circuit court’s grant of summary judgment in
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favor of defendants and remand to the circuit court for further
proceedings consistent with this opinion.
Reversed and remanded.
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