Arteman v. Clinton Community Unit School District No. 15

Case Date: 11/22/2000
Court: 4th District Appellate
Docket No: 4-00-0383 Rel

NO. 4-00-0383

22 November 2000
IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JEREMY ARTEMAN and STEVE ARTEMAN,
                        Plaintiffs-Appellants,
                        v.
CLINTON COMMUNITY UNIT SCHOOL
DISTRICT NO. 15, a Municipal
Corporation,
                        Defendant-Appellee.
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Appeal from
Circuit Court of
De Witt County
No.  99L4

Honorable
Dan L. Flannell,
Judge Presiding.

JUSTICE STEIGMANN delivered the opinion of the court:

In March 1999, plaintiffs, Jeremy Arteman and hisfather, Steve Arteman (collectively, the Artemans), sued defendant, Clinton Community Unit School District No. 15 (SchoolDistrict), for injuries Jeremy sustained while roller bladingduring a high school physical education class. In April 1999,the School District filed a motion to dismiss the complaint,pursuant to section 2-619(a)(9) of the Code of Civil Procedure(Code) (735 ILCS 5/2-619(a)(9) (West 1998)). In July 1999, thetrial court determined that the School District was immune fromliability under section 3-108(a) of the Local Governmental andGovernmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-108(a) (West 1996)) and dismissed the complaint with prejudice. The Artemans appeal, and we reverse and remand.

I. BACKGROUND

In March 1999, the Artemans filed a complaint allegingthat on March 20, 1998, Jeremy (then 17 years old) was a studentat Clinton Community High School. On that date, students inJeremy's physical education class were required to participate ineither a running exercise or a roller blading session. Thecomplaint also alleged that students who chose to roller bladewere provided with roller blades that "were of an experimentaldesign with the brake mechanism located at the toe of the bootinstead of the heel." The students were not offered any otherroller blading equipment. As Jeremy attempted to roller bladearound the wooden gym floor, he fell, breaking two bones in hisright leg. Count I of the complaint alleged negligence on thepart of the School District for failing to provide (1) "thenecessary safety equipment for rollarblading [sic] such as[,] butnot limited to[,] helmets, shinguards, kneeguards, [and] elbowpads"; or (2) "rollarblades [sic] that were suitable for theirintended use." Count III of the complaint alleged that theSchool District's failure to provide necessary roller bladingequipment constituted willful and wanton misconduct. Counts IIand IV sought reimbursement of medical expenses pursuant to theRights of Married Persons Act, commonly referred to as the FamilyExpenses Act (750 ILCS 65/15 (West 1996)).

In April 1999, the School District moved to dismiss thecomplaint pursuant to section 2-619(a)(9) of the Code (735 ILCS5/2-619(a)(9) (West 1998)). The School District claimed that itwas immune from liability under several sections of the Act,including sections 2-201 and 3-108(a) (745 ILCS 10/2-201, 3-108(a) (West 1996)).

In July 1999, after hearing arguments on the SchoolDistrict's motion, the trial court granted the motion to dismissthe complaint with prejudice on the ground that section 3-108(a)of the Act immunized the School District from liability. Thecourt specifically found that the complaint essentially allegedthat the School District failed to supervise Jeremy's physicaleducation class. The court later denied the Artemans' motion toreconsider, and this appeal followed.

II. ANALYSIS

A. Standard of Review

Section 2-619 motions to dismiss provide a means fordisposing of issues of law or easily proved issues of fact. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112,115, 619 N.E.2d 732, 735 (1993). In the present case, the groundadvanced for dismissing the complaint is that the claims assertedtherein are barred by a defense that completely negates theasserted causes of action. See Payne v. Lake Forest CommunityHigh School District 115, 268 Ill. App. 3d 783, 784-85, 644N.E.2d 835, 836 (1994); 735 ILCS 5/2-619(a)(9) (West 1998). Thetrial court should grant the motion and dismiss the complaint if,after construing the allegations in the light most favorable tothe plaintiff, no set of facts can be proved that would entitlethe plaintiff to recover. We review the trial court's ruling ona defendant's section 2-619 motion de novo. Henrich v.Libertyville High School, 186 Ill. 2d 381, 386, 712 N.E.2d 298,301 (1998).

 

B. Immunity Under the Act

The Artemans argue that the trial court erred bydismissing their complaint with prejudice. Specifically, theycontend that neither section 3-108(a) nor section 2-201 of theAct provides the School District with immunity.

1. Section 3-108(a) Immunity

The Artemans contend that section 3-108(a) of the Actdoes not bar their claims against the School District because (1)that section is specifically limited to situations in which afailure to supervise an activity on or use of public propertyresults in injury (see 745 ILCS 10/3-108(a) (West 1996)); and (2)they are not alleging that the School District failed tosupervise Jeremy's physical education class but instead arealleging that the School District failed to provide appropriateequipment.

We agree that the trial court erred by determining thatthe School District was immune from liability pursuant to section3-108(a) of the Act. In making that determination, the courtrelied upon Johnson v. Decatur Park District, 301 Ill. App. 3d798, 808, 704 N.E.2d 416, 423 (1998). In that case, theplaintiffs alleged that during tumbling maneuvers, the parkdistrict failed to (1) provide a safety harness or belt, (2) warnof the dangers associated with using a minitrampoline and mats,(3) provide adequate spotters, (4) warn and instruct participantsconcerning the dangers associated with using a minitrampoline andmats and of the known serious risk of severe spinal cord injury,(5) properly position the mats to prevent gaps, and (6) provide asafe coach. This court held that the gist of those allegationswas that the park district, through its employee coach, failed toadequately supervise activities on the minitrampoline and failedto warn of the dangers of spinal cord injury attendant to use ofthe minitrampoline. Johnson, 301 Ill. App. 3d at 807-08, 704N.E.2d at 423. In this case, however, the gist of theallegations set forth in the complaint is not a failure tosupervise an activity. Instead, the gist of the Artemans'complaint is that the School District failed to provideappropriate equipment.

2. Section 2-201 Immunity

The Artemans also contend that section 2-201 of the Act (745 ILCS 10/2-201 (West 1996)) does not bar their claims againstthe School District. Specifically, they contend that section 2-201 does not abrogate a school district's affirmative duty toprovide safety equipment, which was expressly recognized inGerrity v. Beatty, 71 Ill. 2d 47, 52-53, 373 N.E.2d 1323, 1325(1978). We agree.

Sections 2-109 and 2-201 of the Act grant immunity topublic entities for the performance of discretionary functions. Section 2-109 provides that "[a] local public entity is notliable for an injury resulting from an act or omission of itsemployee where the employee is not liable." 745 ILCS 10/2-109(West 1996). Section 2-201 provides as follows:

"Except as otherwise provided by[s]tatute, a public employee serving in aposition involving the determination ofpolicy or the exercise of discretion is notliable for an injury resulting from his actor omission in determining policy when actingin the exercise of such discretion eventhough abused." 745 ILCS 10/2-201 (West1996).

That section affords immunity to a public employee only if hisalleged wrongful act or omission was both a determination ofpolicy and an exercise of discretion. Harinek v. 161 North ClarkStreet Ltd. Partnership, 181 Ill. 2d 335, 341, 692 N.E.2d 1177,1181 (1998). Because the Act does not define the terms "policy"and "discretion," courts have employed common-law definitions ininterpreting section 2-201 of the Act. See Snyder v. CurranTownship, 167 Ill. 2d 466, 473, 657 N.E.2d 988, 992 (1995). Adetermination of policy is one that requires (1) balancing ofcompeting interests and (2) making judgments as to what solutionwill best serve those interests. West v. Kirkham, 147 Ill. 2d 1,11, 588 N.E.2d 1104, 1109 (1992).

In Harinek, for example, the plaintiff alleged thatduring a fire drill, a city fire marshal negligently directed herto stand near a heavy door without warning her of the possibilityof injury. As a result, the plaintiff alleged, she was hit andinjured by the door during the fire drill. Harinek, 181 Ill. 2dat 338, 692 N.E.2d at 1179. The supreme court ruled that thefire marshal's decisions about where individuals should be placedand what warnings should be given were made through a balancingof "various interests which may compete for the time andresources of the [fire] department, including the interests ofefficiency and safety." Harinek, 181 Ill. 2d at 342, 692 N.E.2dat 1182. The supreme court therefore concluded that the publicemployee made a determination of policy within the meaning ofsection 2-201 of the Act. Harinek, 181 Ill. 2d at 343, 692N.E.2d at 1182; see also Johnson, 301 Ill. App. 3d at 809, 704N.E.2d at 424 (in which this court concluded that a park districtcoach's decisions regarding what equipment and safety precautionswere needed during tumbling maneuvers qualified "as the making ofpolicy under the Harinek test").

Similarly, the School District's decision regarding theprovision of roller blading equipment during a physical educationclass, including the type of roller blades to be used, involves adetermination of policy within the meaning of section 2-201 ofthe Act. The School District must consider a variety of factors,including (1) the cost and availability of various types ofroller blading equipment; (2) the number of students who maychoose to participate in the activity; and (3) the students'varying skill levels. The School District must then balancethose interests against its resources and reach a decision thataccomplishes seemingly incompatible objectives--student safetyand cost effectiveness. This is a complex decision-makingprocess that requires the balancing of competing interests andthe making of a judgment that will satisfy those interests mostefficiently.

We further conclude that the School District's decisionregarding the provision of roller blading equipment was anexercise of discretion within the meaning of section 2-201 of theAct (745 ILCS 10/2-201 (West 1996)).

"[D]iscretionary acts are those which areunique to a particular public office, whileministerial acts are those which a personperforms on a given state of facts in aprescribed manner, in obedience to themandate of legal authority, and withoutreference to the official's discretion as tothe propriety of the act." Snyder, 167 Ill.2d at 474, 657 N.E.2d at 993.

Put another way, the making of a decision about whether or how toperform an act is generally discretionary, whereas the actualmechanical performance of the act is ministerial. See D.M. v.National School Bus Service, Inc., 305 Ill. App. 3d 735, 739, 713N.E.2d 196, 200 (1999) (although the school was statutorilymandated to provide transportation to certain students, theschool's ultimate decision regarding how to provide suchtransportation was an exercise of discretion).

Because the School District's decision regarding theprovision of roller blading equipment for a physical educationclass was both a determination of policy and an exercise ofdiscretion, we conclude that section 2-201 of the Act--standingalone--would provide immunity to the School District in this case(745 ILCS 10/2-201 (West 1996)). However, as the Artemanscorrectly point out, in Gerrity, 71 Ill. 2d at 52, 373 N.E.2d at1325, the supreme court expressly recognized a school district'saffirmative duty to provide safety equipment that is necessary toprotect students from serious injury during school athleticactivities. In that case, a high school student who was severelyinjured during a school football game sued the school district,alleging that it had provided him with a defective footballhelmet. The school district responded that it was immune fromliability pursuant to provisions of the School Code that shield aschool teacher from liability for negligent acts undertakenduring supervision or discipline of students. Gerrity, 71 Ill.2d at 48-50, 373 N.E.2d at 1324-25.

The Gerrity court rejected the school district'sargument, reasoning that a school district cannot vicariouslyclaim the immunity of a school teacher where it is alleged thatthe school district itself has an independent duty to provideadequate equipment to students. The court further explained thatthe "public policy considerations in authorizing, and indeedencouraging, teachers to have broad discretion and latitude inthe former situation quite clearly do not apply" where the issueis the school district's duty to furnish adequate safetyequipment to students. Gerrity, 71 Ill. 2d at 52, 373 N.E.2d at1326. The court also observed that "public policy considerationsargue rather strongly against any interpretation which wouldrelax a school district's obligation to insure that equipmentprovided for students in connection with activities of this typeis fit for the purpose." Gerrity, 71 Ill. 2d at 52, 373 N.E.2dat 1326. "To hold school districts to the duty of ordinary carein such matters would not be unduly burdensome, nor does itappear to us to be inconsistent with the intended purposes of ***the School Code [regarding immunity of teachers for supervisionor discipline of students]." Gerrity, 71 Ill. 2d at 52-53, 373N.E.2d at 1326.

The supreme court also recognized a school district'sduty to furnish proper safety equipment to students in Lynch v.Board of Education of Collinsville Community Unit District No.10, 82 Ill. 2d 415, 412 N.E.2d 447 (1980). In that case,students had engaged in a football game on school propertywithout the express approval of the school principal. However,the school administration was aware that the game was planned andthat several teachers were coaching students for the game. Basedon this evidence, the court concluded that the school districtwas negligent for its failure to provide safety equipment forstudents' use during the football game. Lynch, 82 Ill. 2d at434-35, 412 N.E.2d at 459-60. Thus, the school district could beheld liable for head injuries sustained by a student who was notwearing a helmet when she was tackled by another player. Lynch,82 Ill. 2d at 434-35, 412 N.E.2d at 459-60. In so concluding,the court wrote:

"[A] school district has an affirmative duty,where students are engaging in schoolactivities, whether they are extracurricular,or formally authorized as part of the schoolprogram, to furnish equipment to preventserious injuries. At the least, a schooldistrict should furnish helmets and faceguards for a game such as football, wherehead injuries are common and severe." Lynch,82 Ill. 2d at 434-35, 412 N.E.2d at 459.

In Palmer v. Mt. Vernon Township High School District 201, 169Ill. 2d 551, 560, 662 N.E.2d 1260, 1264 (1996), the supreme courtreaffirmed a school district's duty to exercise ordinary care:

"The school district had an obligation to provide to all students*** the safety equipment that was reasonably necessary in orderto protect players from reasonably foreseeable, serious bodilyinjury."

If it were not for Gerrity and its progeny, section 2-201 of the Act would provide the School District with immunityfor both negligent and willful and wanton misconduct. However, in Gerrity, and again in Lynch and Palmer, the supreme court hasrecognized a cause of action for a school district's failure tofulfill its independent duty to provide appropriate safetyequipment to students. We recognize that Gerrity, Lynch, andPalmer addressed the immunity and duties of school districtsunder the School Code. However, the policy considerationsstated in Gerrity are as applicable to the Act as they were tothe School Code. As earlier discussed, the Gerrity court notedthat (1) public policy considerations "argue rather strongly"against relaxing a school district's obligation to provideappropriate safety equipment, and (2) to hold a school districtto the duty of ordinary care would not be unreasonablyburdensome or inconsistent with the School Code. Gerrity, 71Ill. 2d at 52-53, 373 N.E.2d at 1326. Moreover, holding thatimmunity is available under the Act would effectively immunizeschool districts from the liability that the supreme courtrecognized in Gerrity and its progeny.

One of the perplexing aspects of this case is thatsection 2-201 of the Act was in existence when the supreme courtreached its decisions in Gerrity, Lynch, and Palmer (see 1965Ill. Laws 2983, 2985-86 (