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Docket No. 90701-Agenda 25-September 2001.

JEREMY ARTEMAN et al., Appellees, v. CLINTONCOMMUNITY UNIT SCHOOL DISTRICT No. 15, Appellant.

Opinion filed January 25, 2002.

JUSTICE FITZGERALD delivered the opinion of the court:

The plaintiffs, Jeremy Arteman and his father Steve Arteman,filed a personal injury complaint against the Clinton CommunityUnit School District No. 15 (the School District), alleging, interalia, that the School District was negligent in failing to provideroller-blade safety equipment for Jeremy's physical educationclass. The School District moved to dismiss this complaint,asserting that it was entitled to immunity under sections 2-201 and3-108(a) of the Local Governmental and GovernmentalEmployees Tort Immunity Act (the Act) (745 ILCS 10/2-201,3-108(a) (West 2000)). The De Witt County circuit court grantedthe School District's motion to dismiss, but the appellate courtreversed (317 Ill. App. 3d 453).

The central issue in this case is whether the plaintiffs'allegations that the School District negligently failed to providesafety equipment fell within the protective scope of thediscretionary immunity provided by section 2-201 of the Act. Wereverse the appellate court and affirm the circuit court.

BACKGROUND

Count I of the plaintiffs' four-count complaint charged theSchool District with negligence. According to the plaintiffs, theSchool District required all high school students to take a physicaleducation class. On March 20, 1998, the students in Jeremy'sphysical education class were expected to run laps or use rollerblades on the wooden gym floor under the supervision of twoteachers. The students opting to roller blade paid $7, and theSchool District provided roller blades with a toe brake, which theplaintiffs characterized as an experimental design. The SchoolDistrict did not provide safety equipment such as shin guards,elbow guards, knee guards, helmets, or gloves. Jeremy chose toroller blade. During class, he fell and broke two bones in his rightleg. The plaintiffs asserted that the School District was negligentbecause it:

"a. Failed to provide the necessary safety equipment forrollarblading [sic] such as but not limited to helmets,shinguards, kneeguards, elbow pads;

b. Failed to provide rollarblades [sic] that were suitablefor their intended use."

According to the plaintiffs, this purported negligence causedJeremy's injury. The plaintiffs' complaint also included a "Wilfuland Wanton Misconduct" count which tracked the allegations ofthe negligence count, as well as two corresponding counts underthe Rights of Married Persons Act (750 ILCS 65/15 (West 2000)).

The School District filed a motion to dismiss, contending thatsections 2-201 and 3-108(a) of the Act defeated the plaintiffs'claims. The trial court dismissed the plaintiffs' complaint, holdingthat section 3-108(a), which provides immunity from claimsalleging a failure to supervise, applied and that the plaintiffs failedto allege sufficient facts to establish willful and wantonmisconduct, an exception to section 3-108(a) immunity.

The appellate court held that section 3-108(a) did not applybecause the plaintiffs' complaint did not involve allegations thatthe School District failed to supervise Jeremy. 317 Ill. App. 3d at456. Instead, the appellate court characterized the gist of theplaintiffs' complaint as negligent failure to provide appropriateequipment. 317 Ill. App. 3d at 456. The appellate court discusseddiscretionary immunity and observed that "section 2-201 of theAct-standing alone-would provide immunity to the SchoolDistrict in this case." 317 Ill. App. 3d at 458. However, theappellate court noted that in Gerrity v. Beatty, 71 Ill. 2d 47 (1978),Lynch v. Board of Education of Collinsville Community UnitDistrict No. 10, 82 Ill. 2d 415 (1980), and Palmer v. Mt. VernonTownship High School District 201, 169 Ill. 2d 551 (1996), thiscourt "recognized a cause of action for a school district's failureto fulfill its independent duty to provide appropriate safetyequipment to students." 317 Ill. App. 3d at 459-60. The appellatecourt reasoned that the policy considerations outlined in Gerrityand its progeny, which militated against immunity under theSchool Code, applied with equal force to immunity under the Act.317 Ill. App. 3d at 460. The appellate court hesitantly concludedthat section 2-201 did not defeat the plaintiffs' claims, reversingand remanding "in the hope that the supreme court, in this case orsome other, will address the immunities and duties of schooldistricts under the Act." 317 Ill. App. 3d at 460.

We granted the plaintiffs' petition for leave to appeal. See 177Ill. 2d R. 315.⁽¹⁾

ANALYSIS

Section 2-619(a)(9) of the Code of Civil Procedure permitsinvoluntary dismissal where "the claim asserted against defendantis barred by other affirmative matter avoiding the legal effect of ordefeating the claim." 735 ILCS 5/2-619(a)(9) (West 1998).Affirmative matter in this context means a defense which negatesthe plaintiff's cause of action. Illinois Graphics Co. v. Nickum,159 Ill. 2d 469, 486 (1994); see Kedzie & 103rd CurrencyExchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993). Immunityunder the Act is affirmative matter properly raised in a section2-619(a)(9) motion to dismiss. Bubb v. Springfield School District186, 167 Ill. 2d 372, 378 (1995). Our review of a section 2-619dismissal is de novo. Epstein v. Chicago Board of Education, 178Ill. 2d 370, 383 (1997).

We frequently have discussed the history of sovereignimmunity in Illinois, and we need not reiterate it at length here.The 1970 Illinois Constitution abolished sovereign immunity,except as the General Assembly may provide (see Ill. Const. 1970,art. XIII,