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No. 3-02-1040

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

Plaintiffs, Joshua Hill and his father, J.T. Hill, suedGalesburg Community Unit School District (school district),alleging that the school district violated the Eye Protection inSchool Act (Eye Protection Act), which requires that students weareye protection when participating in certain activities. 105 ILCS115/1 (West 2002). The school district filed a motion to dismissalleging that it did not violate the Eye Protection Act and that,in any case, it was immune from liability under the LocalGovernmental and Governmental Employees Tort Immunity Act. 745 ILCS10/1-101 et seq. (West 2002). The trial court determined that theschool district violated the Eye Protection Act, but that it wasimmune. We affirm in part, reverse in part and remand.

Joshua Hill was a student attending Galesburg Senior HighSchool. He was performing an experiment in chemistry class when aglass beaker exploded, causing an injury to his right eye. Joshuawas not wearing eye protection at the time of the explosion.

Plaintiffs filed a four count amended complaint. Counts I andIII alleged negligence by the school district, and counts II and IValleged willful and wanton conduct by the school district. Theschool district filed a combined motion to dismiss pursuant to 735ILCS 5/2-615 (West 2002) and 735 ILCS 5/2-619 (West 2002). Thetrial court initially dismissed the willful and wanton counts anddenied the motion to dismiss the negligence counts. Plaintiffsthen filed an amended complaint, and the school district renewedits motion to dismiss. The trial court granted the section 2-619motion, dismissing all four counts based on section 2-201 of theTort Immunity Act. 745 ILCS 10/2-201 (West 2002).

Our review of a section 2-619 dismissal is de novo. Arteman v.Clinton Community School District No. 15, 198 Ill. 2d 475, 479(2002).

I. The Eye Protection in School Act

We first consider whether the Eye Protection Act imposes aduty on (1) the school district to provide eye protection, and (2)the teacher to ensure that students are wearing eye protectionbefore proceeding with the experiment. The Eye Protection Actprovides in relevant part:

"Every student, teacher and visitor is required towear an industrial quality eye protective device whenparticipating in or observing any of the following coursesin schools, colleges and universities:

***

(b) chemical or combined chemical-physicallaboratories involving caustic or explosive chemicals orhot liquids or solids.

Such devices may be furnished for all students andteachers, and shall be furnished for all visitors to suchclassrooms and laboratories." 105 ILCS 115/1 (West 2002).

A. Duty to Provide Eye Protection

Our supreme court has held that school districts have a commonlaw duty to provide safety equipment to students when engaged inactivities that may be dangerous. Gerrity v. Beatty, 71 Ill. 2d 47,52 (1978); Lynch v. Board of Education of Collinsville CommunityUnit District No. 10, 82 Ill. 2d 415, 434 (1980); Palmer v. MountVernon Township High School District 201, 169 Ill. 2d 551, 557(1996). The Eye Protection Act, however, specifically states thateye protection "may be furnished for all students and teachers."(Emphasis added.) 105 ILCS 115/1 (West 2002).

The primary rule of statutory interpretation is to ascertainand give effect to the intent of the legislature. Heinrich v.Libertyville High Shcool, 186 Ill. 2d 381, 387 (1999). The bestindicator of legislative intent is the language that thelegislature used in the statute. In re Ben S., 331 Ill. App. 3d471, 472 (2002). Legislative use of the word "may" indicates apermissive or directory reading, while use of the word "shall"indicates a mandatory meaning. People v. Reed, 177 Ill. 2d 389, 393(1997).

The plain language of the statute says that eye protection"may" be furnished to all students, giving school districts theoption to furnish eye protection for students and teachers. Thispermissive language negates the common law duty to provide safetyequipment. See Miller v. Hill, 337 Ill. App. 3d 210, 221 (2003)(noting that, "the legislature maintains the inherent authority torepeal or modify the common law and may eliminate all or part ofit."). Under the Eye Protection Act, school districts have no dutyto provide eye protection to students and teachers.

B. Duty to Ensure Eye Protection is Worn

Nonetheless, plaintiffs contend that even if the schooldistrict is not required to provide eye protection, the EyeProtection Act creates a duty in the teacher to ensure thatstudents are wearing eye protection before proceeding withactivities covered by the Eye Protection Act. The school districtresponds that although the Eye Protection Act requires thatstudents wear eye protection, the responsibility is on the studentsthemselves to ensure that they are protected.

In construing a statute to give effect to the intent of thelegislature, the court may consider the reason and necessity forthe statute and the evils it was intended to remedy. People v.McGee, 326 Ill. App. 3d 165, 169 (2001). This is especially truewhen the statutory language is capable of two or more reasonableinterpretations. Wal-Mart Stores, Inc. v. Industrial Commission,324 Ill. App. 3d 961, 967 (2001). The court will assume that thelegislature did not assume an absurd or unjust result. In re Beyerand Parkis, 324 Ill. App. 3d 305, 309 (2001).

In this case we believe that placing the burden on the studentto wear eye protection would create a result inimical to the intentof the statute. A teacher is responsible for conducting the classand is charged with maintaining control and supervision over themanner and method of the students' work. Knapp v. Hill, 276 Ill.App. 3d 376, 381 (1995). The interpretation urged by the schooldistrict shifts the teacher's responsibility onto the student andabsolves the teacher of any responsibility for conductingpotentially hazardous experiments with unprotected students in theroom.

The statute requires teachers to ensure that all students arewearing eye protection. The teacher may not start a dangerousactivity until the student either dons eye protection or is removedfrom the area. This construction gives effect to the intent of thelegislature, that is, to protect students, teachers and visitorsfrom eye injury. The responsibility for the management of theclassroom is on the teacher, not the student.

II. Tort Immunity Act

The school district argues that even if the teacher breachedhis duty to ensure eye protection was worn before proceeding withthe experiment, he and the district are immune under section 2-201and section 3-108 of the Tort Immunity Act. See also 745 ILCS10/2-109 (West 2002) (employee's immunity applies vicariously toemployer).

A. Section 2-201 Immunity

Section 2-201 of the Tort Immunity Act provides that:

"Except as otherwise provided by Statute, a public employeeserving in a position involving the determination of policyor the exercise of discretion is not liable for an injuryresulting from his act or omission in determining policywhen acting in the exercise of such discretion even thoughabused." 745 ILCS 10/2-201 (West 2002).

Immunity under section 2-201 does not apply if the employee'sact or omission that caused the plaintiff's injury is ministerialin nature. Trotter v. School District 218, 315 Ill. App. 3d 1, 13(2000). Ministerial acts are those that a person performs on agiven state of facts in a prescribed manner, in obedience to thelegal authority, and without reference to the employee's discretionas to the propriety of the act. Snyder v. Curran Township, 167 Ill.2d 466, 474 (1995).

Teachers have wide discretion in the conduct of their classes.Knapp, 276 Ill. App. 3d at 380. However, as we have noted above,teachers must comply with the requirements of the Eye ProtectionAct. When the students performed an experiment involving causticor explosive chemicals or hot liquids, the teacher's responsibilityunder the Eye Protection Act was triggered and his acts wereministerial in nature. He had no discretion to permit the class toproceed without the students wearing eye protection. Section 2-201does not provide immunity to the school district.

B. Section 3-108 Immunity

The school district also contends that it is immune becausethe teacher was acting in a supervisory role at the time of theexplosion. Section 3-108 of the Tort Immunity Act provides inpertinent part:

"Except as otherwise provided in this Act, neither a localpublic entity nor a public employee who undertakes tosupervise an activity on or the use of any public propertyis liable for an injury unless the *** public employee isguilty of willful and wanton conduct in its supervisionproximately causing such injury." 745 ILCS 10/3-108(a)(West 2002).

Plaintiffs argue that section 3-108 does not apply for tworeasons. First, plaintiffs contend that section 3-108 immunity isbarred in this case by our supreme court's decision in Arteman v.Clinton Community School District No. 15, 198 Ill. 2d 475 (2002). Arteman involved a school district's duty to provide safetyequipment. The court ruled that providing safety equipment wasseparate and distinct from supervising students, and thus section3-108 immunity did not apply. Arteman, 198 Ill. 2d at 484. Where,as here, the issue is the teacher's supervision of the class, notthe providing of safety equipment, Arteman does not apply.

Second, plaintiffs assert that since the Eye Protection Actrequired the teacher to ensure that Joshua was wearing eyeprotection, the teacher had no discretion to act. However, section3-108 is not predicated on the teacher exercising discretion. Itspeaks only of supervision. Supervision includes "direction,teaching, demonstration of techniques, and-to some degree-activeparticipation." Longfellow v. Corey, 286 Ill. App. 3d 366, 370(1997). Teachers supervise their classes whether or not theyexercise discretion. Repede ex rel Repede v. Community Unit SchoolDistrict No. 300, 335 Ill. App. 3d 140, 143 (2002); Kain v.Rockridge Community Unit School District, 117 Ill. App. 3d 681, 683(1983). Violating the Eye Protection Act may be inadequatesupervision, but under section 3-108 it is irrelevant whether theteacher properly supervised the class. The quality or level of theteacher's supervision of the class is irrelevant to a section 3-108analysis. See Barnett v. Zion Park District, 171 Ill. 2d 378, 392(1996).

Plaintiffs' amended complaint alleges that Joshua wasattending a laboratory chemistry class, that he was performing achemistry experiment as part of his course of study, that theteacher had actual knowledge that Joshua was not wearing eyeprotection, and that the teacher permitted him to perform theexperiment that led to the explosion. Joshua's teacher was presentwhile he was conducting an experiment as part of the classactivity. Under these facts, we must conclude that the teacher wassupervising the class. See Longfellow, 286 Ill. App. 3d at 370.Thus, section 3-108 provides immunity from the negligenceallegations in counts I and III of the amended complaint.

C. Willful and Wanton Conduct

Plaintiffs also argue that since counts II and IV allegewillful and wanton conduct, section 3-108 provides no immunity tothe school district on those counts. The school district repliesthat plaintiffs have insufficiently pled willful and wanton conductas a matter of law.

Section 3-108 immunity does not apply if the teacher's conductwas willful and wanton. 745 ILCS 10/3-108(a) (West 2002). In theTort Immunity Act, willful and wanton conduct is defined as "acourse of action which shows an actual or deliberate intention tocause harm or which, if not intentional, shows an utterindifference to or conscious disregard for the safety of others ortheir property." 745 ILCS 10/1-209 (West 2002). Willful and wantonconduct does not occupy a precise point on the continuum ofliability between negligence and intentional conduct. Pomaro v.Community Consolidated School District 21, 278 Ill. App. 3d 266,269 (1995). Willful and wanton conduct can be slightly more thannegligence, slightly less than intentional conduct, or anywhere inbetween, depending on the circumstances. Pomaro, 278 Ill. App. 3dat 269.

In Hadley v. Witt Unit School District 66, 123 Ill. App. 3d 19(1984), the teacher observed students hammering pieces of metalinto an anvil, knew or should have known that this activity wasdangerous, and failed to direct the students to wear goggles.Hadley, 123 Ill. App. 3d at 23. Based on these facts, the courtfound that a jury could infer a "reckless disregard for the safetyof others *** after knowledge of impending danger." Thus thecomplaint stated a cause of action.

The school district attempts to distinguish Hadley because theplaintiffs did not specifically allege that the teacher's actsknowingly constituted a reckless disregard for Joshua's safety.However, Hadley does not require that the complaint contain thislanguage. Hadley only requires that the allegations in thecomplaint support such an inference.

The relevant portions of the amended complaint allege that theteacher (1) had actual knowledge that Joshua was performing theexperiment without wearing eye protection, (2) had actual knowledgeof the dangers of performing the experiment, and (3) consciouslydisregarded Joshua's safety by permitting him to participate in theexperiment without eye protection. Under the Hadley analysis,these allegations are sufficient for a jury to infer a "recklessdisregard" for Joshua's safety "after knowledge of impendingdanger." Hadley, 123 Ill. App. 3d at 23. Counts II and IV ofplaintiffs' amended complaint sufficiently allege a cause of actionfor willful and wanton conduct.

CONCLUSION

The judgment of the circuit court of Knox County is affirmedin part, reversed in part and remanded.

Affirmed in part and reversed in part; cause remanded.

BARRY and SCHMIDT, JJ., concurring.