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FIRST DIVISION
June 30, 2000

Nos. 1-96-3134, 1-96-3360 (Consolidated)

PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Plaintiff, Elgia (Lee) Trotter, Jr., brought this wrongful death action against defendants, SchoolDistrict 218 (District 218) and Dale Janssen (Janssen) following the drowning death of his 14-year-old son,Nathaniel, during freshmen swimming class at Richards High School. Plaintiff's amended complaint containedthree counts. Counts I and II of plaintiff's amended complaint sought damages for willful and wanton conductpursuant to the Wrongful Death Act, (740 ILCS 180/1 et seq. (West 1996)). Count III sought damages forfuneral expenses. Defendants claimed immunity from any liability under section 3-108 of the LocalGovernmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) ( 745 ILCS 10/1-101et seq. (West 1996)). Defendants also argued for summary judgment in that plaintiff failed to show willful andwanton conduct and that defendants were entitled to discretionary public official immunity.

The trial court made two separate rulings. The trial court first found that defendants were not entitledto immunity under section 3-108(a) of the Tort Immunity Act for the alleged willful and wanton supervisionof Nathaniel during swimming class. 745 ILCS 10/3-108(a) (West 1996). The trial court, however, certifiedthe following questions for interlocutory appeal under Supreme Court Rule 308 (155 Ill. 2d R. 308):

"(1) Whether section 3-108 immunity can be used by defendants to immunize what is allegedto be willful and wanton conduct by a certified teacher in the supervision of a requiredphysical education swimming class in light of the [S]chool [C]ode and doctrine of in locoparentis immunity;

(2) Are the actions of non-certified student guard, under the supervision of a certified teacher,entitled to section 3-108 immunity[?]"

We allowed leave to appeal these certified questions under Supreme Court Rule 308. 155 Ill. 2d R. 308.

The trial court's second set of orders subject to this appeal granted defendants' summary judgmentmotion in part as to six allegations within plaintiff's amended complaint and denied plaintiff's motion to file asecond amended complaint. The court found that plaintiff failed to present evidence of willful and wantonconduct as a matter of law on three of those allegations and that defendants were entitled to"discretionary/public official immunity" on the remaining three allegations. 745 ILCS 10/2-201 (West 1996). The trial court made its order granting partial summary judgment to defendants final and appealable underSupreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). The court also denied plaintiff's motion to file a secondamended complaint and found no just reason to delay appeal of this order. Plaintiff therefore appeals from theorders granting partial summary judgment in favor of defendants and denying his motion to file a secondamended complaint. We have jurisdiction under Supreme Court Rule 304(a). 155 Ill. 2d R. 304(a).

We answer both certified questions in the affirmative and, accordingly, reverse the trial court's denialof summary judgment for the defendants on the issue of defendants' immunity under preamended section 3-108of the Tort Immunity Act. We find defendants are entitled to immunity under preamended section 3-108 forthe allegations in plaintiff's amended complaint of willful and wanton misconduct in the supervision of aphysical education swimming class under the preamended Tort Immunity Act which applies to this case. Wealso affirm the trial court's grant of summary judgment to the defendants on paragraphs 10(f),(g),(i), (j) and(k) of plaintiff's amended complaint. We reverse the trial court's grant of summary judgment under section 2-201 of the Tort Immunity Act but find the conduct alleged in paragraph 10(l) is entitled to immunity underpreamended section 3-108.

A. Background of Swimming Instructor and Student Guards

Ron Kyler, School District 218's curriculum director of physical education, health and driver'seducation, hired Dale Janssen to teach "Swim I" or freshman swimming class at Richards High School for the1991-92 school year. Kyler knew that Janssen lacked certifications in water safety and life guarding throughthe American Red Cross. No other swimming instructors lacked these certifications. Kyler believed Janssenwas qualified to teach Swim I because he had a physical education teaching certificate, had taken a class incardiopulmonary resuscitation (CPR) , and was motivated and intelligent.

In August 1991, Janssen suffered an injury to his knee and had surgery. He was released from hisdoctor's care in October of 1991 and completed physical therapy in October of 1991. Janssen further testifiedthat he resumed normal walking in October of 1991 and went swimming in November of 1991.

Swimming coach and teacher Tom Newton sponsored a student guard club that consisted ofexperienced student swimmers. Newton assigned student guards to various freshman swimming classes. Thestudent guards were not lifeguards but acted as an extra set of eyes. They helped oversee swimming class andwere required to alert the teacher if a problem arose. Newton assigned Lauren Krastin and Jill Styx to guardthe class that Nathaniel attended and to assist Janssen. While both Krastin and Styx were freshman and on thefreshman swimming team, neither had any training in life guarding or water safety. Janssen did not knowwhether Krastin and Styx had any training or water safety certifications before they became students guardsin his freshman swimming class.

B. The Drowning

Before Nathaniel's death, he had completed exercises in floating and swimming. The day before hisdrowning, Nathaniel completed a 25-yard freestyle swim of the pool. Janssen then found Nathaniel qualifiedto swim in the deep end of the pool and use the diving board during free swim. Janssen, however, gaveNathaniel a poor grade for his freestyle swim and noticed that Nathaniel was slow and appeared tired from thefreestyle swim.

On January 8, 1992, during swimming class, while Janssen was testing the girls of the swimming class,the boys were assigned to free swim. Janssen first learned of trouble when a student stated that "Nate is introuble." Janssen looked toward the deep end and observed Nathaniel facedown below the surface. Jansseninitially thought that Nathaniel may be performing a front float, but the student insisted that Nathaniel was introuble. Janssen then began to walk to the deep end and saw Krastin jump into the pool.

Krastin testified at her deposition that she first believed that Nathaniel was in trouble when she sawhim at the bottom of the pool in the deep end. She attempted to get a life buoy or flotation device but it wastangled and then, to avoid any further delay, jumped into the pool without any flotation devises. Styx sawNathaniel bob up and down three times before she believed that Nathaniel was in trouble. A student attemptedto get a "shepherd's crook" over to Nathaniel but he was unable to grab it, and he began to submerge into thewater. Styx saw Krastin jump into the pool first and when she was having trouble retrieving Nathaniel, shejumped in to help pull Nathaniel out of the water. Once Nathaniel was brought to the surface, Janssen, standingat the deck, also assisted in getting Nathaniel out of the water. Janssen then administered CPR.

C. Condition of Pool Safety Equipment

The record reflects that the pool was equipped with the following safety equipment: two buoys, tworings, and two shepherd's crooks. As stated above, a student attempted to get one of the shepherd's crooks toNathaniel but Nathaniel was unable to grab it. Krastin testified that the ring and buoy were tangled togetherand she did not have time to untangle them before attempting to rescue Nathaniel. Tom Newton testified thatthe flotation device would not have been tangled the day before the drowning accident because he routinelychecked the equipment, and, if anything were tangled, he would have untangled it. School District 218 did notmaintain rafts in the pool area.

D. Rulings of the Trial Court

Defendants moved for summary judgment, claiming immunity from liability under sections 3-108, 1-202, 2-109, 2-201, 3-106 of the Tort Immunity Act. 745 ILCS 10/3-108; 1-202; 2-109; 2-201; 3-106 (West1996). Defendants also asserted that, for any of plaintiff's allegations not subject to the Tort Immunity Act,plaintiff failed to present evidence of willful and wanton conduct. On July 1, 1996, the trial court denieddefendants' motion for summary judgment based on preamended section 3-108. Relying on Kobylanski v.Chicago Board of Education, 63 Ill. 2d 165 (1976), the trial court determined that sections 24-24 and 34-84aof the School Code (105 ILCS 5/24-24; 34-84a (West 1996)) did not immunize physical education instructorsfor willful and wanton misconduct in the supervision of students and preamended section 3-108 of the TortImmunity Act did not alter this lack of immunity.

On July 12, 1996, the defendants moved for reconsideration of the trial court's denial of their motionfor summary judgment based on preamended section 3-108(a) and additionally moved for a ruling ondefendants' other grounds for summary judgment in their original motion. On August 13, 1996, the trial courtdenied defendants' motion for reconsideration, but granted defendants' motion for summary judgment in part. The court found that plaintiff did not present evidence of material facts to support his allegations of willful andwanton conduct in paragraphs 10(f), 10(i), and 10(j) of his amended complaint and accordingly enteredjudgment in favor of defendants regarding these allegations. The court further found that section 2-201 of theTort Immunity Act provided defendants with immunity from the allegations in paragraphs 10(g), 10(k), and10(l) of plaintiff's amended complaint and entitled defendants to summary judgment regarding these allegationsas well. 745 ILCS 10/2-201 (West 1996).

On August 23, 1996, the trial court granted defendants' motion under Supreme Court Rule 308 (155Ill. 2d R. 308) and certified, for interlocutory review, the two questions as previously noted, which involve thescope of immunity under preamended section 3-108(a) of the Tort Immunity Act (745 ILCS 10/3-108(a) (West1996)) in relationship to sections 24-24 and 34-84a of the School Code (105 ILCS 5/24-24, 34-84a (West1996)). The trial court also denied plaintiff's motion for leave to file a second amended complaint thatattempted to add a fourth count under the special duty doctrine. This appeal then followed.

We first address the two certified questions for interlocutory review pursuant to Supreme Court Rule

308 (155 Ill. 2d R. 308). The interpretation of the Tort Immunity Act is a question of law and our review isde novo. Barnett v. Zion Park District, 171 Ill. 2d 378, 385 (1995). When interpreting the Tort ImmunityAct, the supreme court has directed courts to "seek the legislative intent primarily from the language used inthe Tort Immunity Act. * * * If [the court] can ascertain the legislative intent from the plain language of the[Tort Immunity] Act itself, that intent must prevail * * *." In re Chicago Flood Litigation, 176 Ill. 2d 179,193 (1997).

Section 3-108(a) of the preamended Tort Immunity Act provides:

"(a) Except as otherwise provided by this Act and subject to subdivision (b) neither a localpublic entity nor a public employee is liable for an injury caused by the failure to supervise an activityon or the use of any public property." 745 ILCS 10/3-108(a) (West 1996).

The trial court found and plaintiff now argues that the School Code and not the Tort Immunity Actgoverns the immunity of public school districts and public school teachers. 105 ILCS 5/24-24, 34-84a. SchoolCode section 24-24 applies to cities with populations over 500,000, and section 34-84a applies to cities withpopulations under 500,000. Both sections provide that teachers or other educational employees enjoy the sameimmunity from suits by their students as a parent or guardian enjoys against suits by a child. 105 ILCS 5/24-24, 34-84a (West 1996). Thus, based on the School Code, educators are not liable to their students forordinary negligent conduct but are liable for willful and wanton conduct. Kobylanski, 63 Ill. 2d at 170-73. Defendants, however, contend that the immunity of preamended section 3-108 of the Tort Immunity Act prevails over sections 24-24 and 34-84a of the School Code and that they are immune from student suitsalleging willful and wanton misconduct in the supervision of a physical education class.

Our supreme court recently resolved the issue of the relationship between sections 24-24 and 34-84aof the School Code and section 3-108(a) of the Tort Immunity Act and the apparent conflict between these twostatutes. Henrich v. Libertyville High School, 186 Ill. 2d 381 (1998), supplemental opinion filed after denialof rehearing (1999). In Henrich, a student sued the school district for negligent and willful and wanton conductinvolving supervision during a mandatory physical education class. The student had recently undergone backsurgery and provided the school district a copy of a letter from a surgeon that advised the student to avoid"contact sports." The student alleged that, despite his medical condition, a substitute physical instructorrequired him to play in a game of water basketball, and during the contact sport, the student was seriouslyinjured. Henrich, 186 Ill. 2d at 384-85.

Both the trial and appellate courts dismissed the student's count for willful and wanton conduct againstthe school district based on the absolute immunity of section 3-108(a). 745 ILCS 10/3-108(a) (West 1996). The supreme court affirmed. The court noted that the plain language of section 3-108(a) does not contain anexception for willful and wanton conduct and therefore section 3-108 immunizes "willful and wantonmisconduct." Henrich, 186 Ill. 2d at 388. Although section 24-24 of the School Code does not immunizewillful and wanton misconduct, the court held that this provision does not conflict with section 3-108(a). Thecourt further noted, that while section 24-24 of the School Code applies equally to private and public schools,section 3-108(a) applies only to public schools. The court thus concluded that, "[b]y the plain language ofsection 3-108(a) of the Tort Immunity Act, the legislature has chosen to grant public school teachers and publicschool districts greater immunity than private school teachers and private schools." Henrich, 186 Ill. 2d at392. The court also rejected the argument that section 3-108(a) did not apply to a school district. The courtnoted that section 3-108(a) immunizes "a local public entity's failure to supervise an activity on or the use ofpublic property (745 ILCS 10/3-108(a)(West 1994)), and a 'local public entity' expressly includes a schooldistrict (745 ILCS 10/1-206 (West 1994))." Henrich, 186 Ill. 2d at 391.

We, however, note that the legislature amended section 3-108 in 1998. The amended section 3-108no longer provides immunity for a local entity or public employee's willful and wanton misconduct in its failureto supervise an activity on or the use of public property. Pub. Act 90-805, eff. December 2, 1998 (amending745 ILCS 10/3-108 (West 1996)). However, in Henrich, the supreme court held that a school district has avested right to the absolute immunity in the preamended section 3-108(a) and that "[t]he amended section 3-108cannot reach back and take that vested right away, impose a new duty on the school district, and breathe lifeinto this previously barred claim." Henrich, 186 Ill. 2d at 405. Pursuant to Henrich, the preamended section3-108(a) governs the immunity to the certified teacher and school district in this case because the absoluteimmunity of preamended section 3-108(a) vested at the time this cause of action accrued. Henrich, 186 Ill.2d at 404. We conclude, based on Henrich, that preamended section 3-108(a) provides immunity to defendantsfor what is alleged to be willful and wanton conduct of a certificated teacher in the supervision of a requiredphysical education swimming class, and we answer the first certified question in the affirmative.

Plaintiff next argues that even if section 3-108 applies, defendants did not provide "qualified"supervision and defendants should not be able to rely on the immunity of section 3-108(a) but should begoverned by section 3-108(b). 745 ILCS 5/3-108(a)(b) (West 1996). Section 3-108(b) provides an exceptionto the absolute immunity of section 3-108(a). It states:

"Where a local public entity or public employee designates a part of a public property to beused for purposes of swimming and establishes and designates by notice posted upon the premises thehours for such use, the entity or public employee is liable for an injury proximately caused by itsfailure to provide supervision during the said hours posted." 745 ILCS 10/3-108(b) (West 1996).

For the section 3-108(b) exception to the immunity of section 3-108(a) to apply, there needs to be hours postedand the alleged failure to provide supervision must have occurred during the posted hours. In this case, section3-108(b) does not apply because the supervision occurred during a required physical education class. No hourswere posted at the swimming pool. Plaintiff does not even allege that the failure to supervise occurred duringa time frame when the school district posted hours for use of the pool for purposes of swimming, as requiredfor section 3-108(b) to apply. During the freshman swimming class, the pool was only available to the studentsand employees of Richards High School and was not open to the public. The section 3-108(b) exception doesnot apply and defendants are therefore entitled to the immunity of preamended section 3-108(a). Dixon v.Chicago Board of Education, 304 Ill. App. 3d 744, 748 (1999).

The second certified question asks us to determine if preamended section 3-108(a) immunity appliesto the conduct of the volunteer student guards. We find that it does. Section 1-202 of the Tort Immunity Actdefines an "employee" under the Tort Immunity Act. It states that an "'[e]mployee' includes a present or formerofficer, member of the board, commission or committee, agent, volunteer, servant or employee, whether or notcompensated, but does not include an independent contractor." 745 ILCS 10/1-202 (West 1996). Preamendedsection 3-108(a) grants absolute immunity to a public entity or a public employee. 745 ILCS 10/3-108(a)(West 1996).

An unpaid student manager has been found to fall within the definition of section 1-202 because of thevolunteer status of the student. Sunderland v. Tri-City Community Unit School District No. 1, 193 Ill. App.3d 266, 269 (1990). In Sunderland, plaintiff sued a fellow student and manger of the school's volleyball teamfor injuries plaintiff sustained in the school gymnasium. The student asserted immunity under the TortImmunity Act and the appellate court agreed. It found that because the student manager was unpaid and underthe supervision of teachers and coaches, she was a volunteer. The court cited the unambiguous language ofsection 1-202 that includes volunteers within the definition of an employee under the Tort Immunity Act. Sunderland, 193 Ill. App. 3d at 269.

In this case, Styx and Krastin were likewise student volunteers and the plain language of section 1-202controls our decision. Styx and Krastin applied for the position of student guard to assist the freshmanswimming class, were not compensated for their services, and were under the direct supervision of Janssen. InSunderland, the court noted that the legislature broadened the immunities of the Tort Immunity Act in 1986by including the words "agent" and "volunteer" in the language of section 1-202. Sutherland, 193 Ill. App. 3dat 270. Therefore, because of their status as volunteers, both Styx and Krastin qualify as public employees.Consistent with the language of the Tort Immunity Act and the clear intention of the legislature, we concludethat the actions of uncertified student guards under the supervision of a certified teacher are entitled toimmunity under preamended section 3-108 of the Tort Immunity Act. We answer the second certified questionin the affirmative. 745 ILCS 10/3-108(a) (West 1996). Thus, we answer both certified questions in theaffirmative. We therefore reverse the trial court's denial of defendant's motion for summary judgment regardingthe allegations within plaintiff's amended complaint of willful and wanton supervision. We find the defendantsare entitled to immunity under preamended section 3-108(a) for the allegations of willful and wantonsupervision.

We address plaintiff's appeal of the trial court's grant of summary judgment to defendants onparagraphs 10(f), (g), (i), (j), (k) and (l) of plaintiff's amended complaint and denial of plaintiff's request to filea second amended complaint. Summary judgment is appropriate if the record shows "that there is no genuineissue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS5/2-1005(c) (West 1996). We review a grant of summary judgment de novo. Ruane v. Amore, 287 Ill. App.3d 465, 473 (1997).

The trial court granted summary judgment to defendants on six specific sections of paragraph 10 ofplaintiff's amended complaint. In all six paragraphs plaintiff charged defendants with willful and wantonconduct. The court granted summary judgment as to paragraphs 10(f), (i) and (j) because the court found noevidence of willful or wanton conduct. The court granted summary judgment on paragraphs 10(g), (k) and (l)because the court found defendants were entitled to discretionary public official immunity as to the conductalleged in those subsections. We first consider application of discretionary public official immunity toparagraphs 10(g), (k) and (l).

A. Summary Judgment For Defendants Based On Discretionary Public Official Immunity

The trial court found defendants were entitled to discretionary public official immunity and grantedsummary judgment to defendants on the following allegations of willful and wanton misconduct in paragraph10 of plaintiff's amended complaint.

"g. delegated important duties to two, unqualified minor students instead of having those

duties performed by competent individuals;

k. failed to provide qualified instructors and educational personnel in the swimming pool area

during plaintiff's physical education (swimming) class;

l. failed to provide adequately trained instructors and/or other individuals with such degree and

skill necessary to respond to emergency situations."

In holding that defendants were entitled to discretionary immunity from the above allegations, the trial courtrelied on sections 2-109 and 2-201 of the Tort Immunity Act. 745 ILCS 10/2-201, 2-209 (West 1996). Section 2-201 states as follows:

"Except as otherwise provided by Statute, a public employee serving in a position involvingthe determination of policy or the exercise of discretion is not liable for an injury resulting from hisact or omission in determining policy when acting in the exercise of such discretion even thoughabused." 745 ILCS 10/2-201 (West 1996).

Section 2-109 extends immunity to a public entity for the acts or omissions of its employees where the"employee is not liable." 745 ILCS 10/2-109 (West 1996). Plaintiff argues that because he only alleges willfuland wanton misconduct, the immunity of section 2-201 does not apply. Our supreme court, however, recentlydetermined that only the plain language of the Tort Immunity Act can limit the scope of the immunity of aparticular section, and therefore the court concluded that section 2-201 immunizes both negligent and willfuland wanton misconduct. In re Chicago Flood Litigation, 176 Ill. 2d at 196. Therefore, if section 2-201immunity applies, then defendants would be immune from liability for both negligent as well as willful andwanton acts and omissions. 745 ILCS 10/2-201 (West 1996).

Plaintiff further argues that the alleged wrongful conduct constituted ministerial acts and not theexercise of discretion or determination of policy and therefore section 2-201 immunity does not apply todefendants. We must determine whether the trial court erred in finding that section 2-201 of the TortImmunity Act provided immunity for the conduct of defendants as described in paragraphs 10(g), (k) and (l)of plaintiff's complaint. The Illinois Supreme Court has interpreted section 2-201 of the Tort Immunity Actto mean that immunity will not attach unless the plaintiff's injury results from an act or omission by theemployee in determining policy when acting in the exercise of discretion. Harinek v. 161 North Clark StreetLtd. Partnership, 181 Ill. 2d 335, 341 (1998).

Section 2-201 provides discretionary immunity for acts undertaken in the determination of policy;however, it does not provide immunity if the acts are ministerial in nature. Moreover, there is no statutorydefinition for the terms "discretion," "policy" and "ministerial," and courts resort to common law definitions.Snyder v. Curran Township, 167 Ill. 2d 466, 473 (1995). Under common law, discretionary acts are those ofa public, legislative, or quasi-judicial character that are unique to a particular public office. Snyder, 167 Ill.2d at 474. Ministerial acts are those that a person performs on a given state of facts, in a prescribed manner,in obedience to legal authority, and without reference to the official's discretion as to the propriety of the act. Snyder, 167 Ill. 2d at 474.

In Snyder, the court found that the placement of a road warning sign was a ministerial act because a

statute directed the appropriate side of the road for placement of the sign. Snyder, 167 Ill. 2d at 471. InHarinek, plaintiff alleged that injury was proximately caused by the fire department's implementation of a firedrill at plaintiff's place of employment. Harinek, 181 Ill. 2d at 342. The court first found that the fireMarshall made a determination of policy as contemplated in section 2-201. The court defined policy decisionsas "those decisions which require the municipality to balance competing interests and to make a judgment callas to what solution will best serve each of those interests." Harinek, 181 Ill. 2d at 342, quoting West v.Kirkham, 147 Ill. 2d 1, 11 (1992). The court held that the fire marshall balanced several interests during theplanning and implementation of the fire drill such as time, efficiency, departmental resources, and safety. Harinek, 181 Ill. 2d at 342-43. In Harinek, the supreme court found that the fire marshall's decision to planand to execute a fire drill was an exercise of discretion. Unlike Snyder, the fire marshall was under no legalmandate, and no rule, law, or regulation required him to perform his duties in a prescribed manner. Themarshall had final responsibility for fire drills within the city, and how he chose to implement the drillconstituted an exercise of discretion, free from the requirements of any legal mandate, rule, law or regulation. Harinek, 181 Ill. 2d at 343.

Immunity under section 2-201 will not apply if the plaintiff's injury results from an act or omission bythe employee that is ministerial in nature. In re Chicago Flood Litigation, 176 Ill. 2d at 194. Ministerial actsare those that a person performs on a given state of facts, in a prescribed manner, in obedience to the legalauthority, and without reference to the official's discretion as to the propriety of the act. Snyder, 167 Ill. 2dat 474. For example, a municipal unit exercises discretion when it selects and adopts a plan in the making ofpublic improvements, but as soon as it begins to carry out that plan, it acts ministerially and is bound to seethat the work is carried out in a reasonably safe and skillful manner. In re Chicago Flood Litigation, 176 Ill.2d at 194.

Critical to the determination of whether section 2-201 immunity applies is whether the plaintiff''s injuryresults from an act or omission by the defendants that was ministerial or that was the result of the defendants'determining policy when acting in the exercise of discretion. If the injury results from a ministerial act oromission, then the defendants are not entitled to section 2-201 immunity. If the injury results from an act oromission of defendants in determining policy in the exercise of discretion, then the defendants are immune fromliability under section 2-201. In the plaintiff's amended complaint at paragraph 10(g) and (k), the plaintiffalleges that injury was the result of the fact that District 218: (g) delegated important duties to two unqualifiedminor students instead of having those duties performed by competent individuals; and (k) failed to provideunqualified instructors and educational personnel in the swimming pool area during plaintiff's physicaleducation (swimming) class.

In Johnson v. Mers, 279 Ill. App. 3d 372 (1996), summary judgment was granted for the defendantmunicipalities for their discretionary acts in hiring its police officers. The court stated that hiring a policeofficer "is inherently discretionary and is not performed on a given state of facts in a prescribed manner* * *.* * * [T]here are many factors which a police department must consider and evaluate. The hiring decision isnot one which is made when certain specific factors are present, with no regard to the hiring officials'discretion." Johnson, 279 Ill. App. 3d at 380.

The conduct alleged in paragraph 10(k), specifically, providing instructors for a physical educationclass, is like the hiring of the police officer in Johnson, the result of the School District or its personneldetermining policy when acting in the exercise of discretion. There are many factors that a school district mustconsider and evaluate in providing instructors for a physical education class. In providing a physical educationinstructor to teach a class, District 218 has to make decisions about the sufficiency of the instructor'sbackground and qualifications as well as physical condition in terms of teaching the class. District 218, inproviding a physical education instructor to conduct this particular swimming class, exercised its judgmentand made decisions as to what qualifications were required of the instructor for the swimming class. Thosedecisions required District 218 to balance competing interests and to make a judgment call as to what solutionwould best serve each of those interests and as such were discretionary in nature. Harinek, 181 Ill. 2d at 342.

The conduct alleged in paragraph 10(g), specifically, delegating duties to students during the courseof a class, is clearly subject to the discretion of the instructor conducting the class and District 218 and itspersonnel responsible for offering the class. The student guards were selected to act during the class as an"extra set of eyes" for the teacher. Delegating duties related to the class to the student guards is not conductof a ministerial nature as contemplated by the statutes and case law which have excluded ministerial conductfrom the immunity provided under section 2-201. Therefore, regarding the allegations in paragraph 10(g) and(k), under section 2-201 the defendants are entitled to immunity for the exercise of judgment and discretion intheir decision to provide Janssen as the physical education instructor for the swimming class and in theirdecision to delegate class related duties to students during the swimming class. The granting of summaryjudgment by the trial court judge, finding the defendants immune from liability under section 2-201 of the TortImmunity Act, is affirmed as to paragraphs 10(g) and (k) of plaintiff's amended complaint.

In the plaintiff's amended complaint at paragraph 10(1), the plaintiff alleges that injury was the resultof failure "... to provide adequately trained instructors and/or other individuals with such degree and skillnecessary to respond to emergency situations." We find the acts or omissions as alleged in subsection (1)against District 218 are ministerial in nature and therefore District 218 is not entitled to immunity under section2-201 as the allegations in paragraph 10(l). The allegations that are at issue here do not concern hiring orproviding an instructor for a particular class. The allegations raised in subsection (1) do not involve delegatingduties to students while the class is conducted. Rather, the allegations in paragraph 10(l) raise the questionof whether the instructor or individuals provided by District 218 were adequately skilled to respond toemergency situations during the swimming class. As noted in In re Chicago Flood Litigation, while discretionis exercised in the selection and adoption of a plan for the making of public improvements by a municipality,as soon as it begins to carry out that plan, it acts ministerially and is bound to see the work is carried out ina reasonably safe and skillful manner. In re Chicago Flood Litigation, 176 Ill. 2d at 194. Here, while thedefendants exercised discretion in the selection of Janssen for conducting the Swim I freshmen class, onceDistrict 218 began to carry out that class, its acts were ministerial and it was required to see that Janssenconducted that class in a reasonably safe and skillful manner. We reach this conclusion because the swimclass, unlike other classes, involve an activity, namely, "swimming," and an instrumentality, "the swimmingpool," that are regulated by law.

The Illinois legislature and the Illinois Department of Public Health (Department) have expressed theirconcern for the safety of swimmers under 17 years of age. As such the legislature and the Department haveexpressed their judgment that swimmers under 17 years of age are in need of the protection provided by eitherlifeguards or by a "responsible person 17 years of age or older." Blankenship v. Peoria Park District, 269 Ill.App. 3d 416, 422 (1994). A swimming class conducted in a swimming pool differs from a class conductedin a classroom. The Swimming Pool and Bathing Beach Act (Ill. Rev. Stat. 1991, ch 111