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No. 2--01--0940

Plaintiffs, Jill Repede and Lois Repede, appeal the circuitcourt's order that dismissed their complaint alleging negligenceagainst defendants, Community Unit School District No. 300, Dundee-Crown High School, and Jacqueline Gilly. The trial court ruledthat defendants were immune from suit. On appeal, plaintiffscontend that defendants are not immune because (1) they voluntarilyassumed a duty; (2) Gilly was not acting in a discretionarycapacity when the accident occurred; and (3) defendants were notacting in a governmental capacity when the injury occurred.

Plaintiffs' complaint alleges that in September 1997,plaintiff Jill Repede (hereafter plaintiff) was a member of thefreshman cheerleading squad at Dundee-Crown High School. Gilly wasthe cheerleading coach. While practicing a pyramid routine,plaintiff fell, breaking her arm.

The complaint further alleges that the freshmen cheerleaderswere inexperienced in performing such routines. Althoughdefendants knew this, they provided no coaching supervision and no"spotters" for the routine. A spotter is someone who observes aroutine and is available to assist anyone who falls.

Pursuant to section 2--619(a)(9) of the Code of CivilProcedure (735 ILCS 5/2--619(a)(9) (West 2000)), defendants movedto dismiss the complaint. Defendants argued that they were immunefrom suit for failing to supervise an activity on public property. The trial court agreed and dismissed the action. Plaintiff timelyappeals.

Where a cause of action has been dismissed pursuant to asection 2--619 motion, the questions on appeal are whether agenuine issue of material fact exists and whether the moving partyis entitled to a judgment as a matter of law. Brown v. King, 328Ill. App. 3d 717, 721 (2001). We review de novo the dismissal ofan action pursuant to section 2--619. Brown, 328 Ill. App. 3d at721.

When plaintiff's accident occurred, section 3--108(a) of theLocal Governmental and Governmental Employees Tort Immunity Act(the Act) provided that "neither a local public entity nor a publicemployee is liable for an injury caused by a failure to supervisean activity on or the use of any public property." 745 ILCS 10/3--108(a) (West 1996). Defendants contend, as they did in the trialcourt, that plaintiff's complaint alleges a failure to supervise anactivity--cheerleading practice--on public property. Plaintiffdoes not dispute this, but nonetheless argues that immunity doesnot apply for several reasons.

Plaintiff first contends that defendants voluntarily assumeda duty. She argues that by joining the Illinois High SchoolAssociation (IHSA) and adopting its "spirit rules" governingcheerleading, defendants assumed a duty to supervise thecheerleaders' activities.

One who voluntarily undertakes to provide services to anotheris liable for an injury caused by the failure to exercise due carein doing so. Vesey v. Chicago Housing Authority, 145 Ill. 2d 404,415 (1991). However, the existence of a duty and the existence ofimmunity are separate issues. Blankenship v. Peoria Park District,269 Ill. App. 3d 416, 421 (1994). Morever, failing to comply withself-imposed regulations does not generally impose a legal duty ona governmental defendant. Geimer v. Chicago Park District, 272Ill. App. 3d 629, 636 (1995); Blankenship, 269 Ill. App. 3d at 422-23.

In Geimer, the court held that defendant had no duty toenforce its own officiating rules during a touch football game. Geimer, 272 Ill. App. 3d at 637. Here, the defendants did notundertake an additional duty to protect plaintiff merely by joiningthe IHSA and adopting its rules. Thus, the trial court correctlyheld that defendants here were not liable for failing to enforcethe spirit rules they voluntarily adopted.

Plaintiff next contends that immunity does not apply becausein conducting cheerleading practice, Gilly was performing aministerial, rather than discretionary, duty. Plaintiff appears toconfuse the "discretionary" immunity embodied in sections 2--109and 2--201 of the Act (745 ILCS 10/2--109, 2-201 (West 2000)) withsupervisory immunity under section 3--108. These immunities areseparate and, while the Act expressly adopts the distinctionbetween discretionary and ministerial duties in sections 2--109 and2--201, the distinction is simply irrelevant to the existence ofsupervisory immunity under section 3--108. Epstein v. ChicagoBoard of Education, 178 Ill. 2d 370, 381 (1997). Thus, it does notmatter whether Gilly was performing a discretionary or ministerialfunction when plaintiff was injured and plaintiff may not avoiddefendants' immunity on this basis.

Plaintiff finally contends that defendants are not immunebecause they were not engaged in a governmental function whenplaintiff was injured. Plaintiff cites cases holding that agovernmental unit is not necessarily immune from liability whenengaging in a "proprietary" rather than a "governmental" function. See Comastro v. Village of Rosemont, 122 Ill. App. 3d 405 (1984). Plaintiff argues that the School Code (105 ILCS 5/1--1 et seq.(West 2000)) expressly requires or authorizes school districts toprovide certain programs, but nowhere mentions varsity athletics orcheerleading teams. Plaintiff posits that because the School Codedoes not expressly authorize a district to sponsor athletic teams, such activities are ultra vires and not a "governmental" function.

The supreme court has rejected the distinction betweengovernmental and proprietary activities in deciding whether agovernmental body is immune under the Act. See Epstein, 178 Ill.2d at 379; Barnett v. Zion Park District, 171 Ill. 2d 378, 388(1996). Even if the governmental/proprietary distinction appliedhere, we would find that defendants' cheerleading squad was agovernmental activity. Plaintiff cites no authority for hercontention that an activity must be specifically authorized by astatute to be considered a governmental function.

In a slightly different context, a court observed that"[v]arsity athletics are an integral part of virtually all schoolprograms at every level." Thomas v. Chicago Board of Education, 60Ill. App. 3d 729, 736 (1978), rev'd on other grounds, 77 Ill. 2d165 (1979). In Payne v. Lake Forest Community High School District115, 268 Ill. App. 3d 783 (1994), this court held that defendantwas not liable for injuries plaintiffs suffered while working onthe set and lighting for a school talent show. In Koh v. VillageGreens of Woodridge, 158 Ill. App. 3d 226, 228-29 (1987), we heldthat a municipal golf course was a governmental, rather than aproprietary, function. Defendants' cheerleading squad is notanalytically different from a school talent show or a municipalgolf course. Plaintiff cannot avoid defendants' immunity on thisbasis.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

GROMETER and CALLUM, JJ., concur.