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Docket No. 92887-Agenda 29-September 2002.

KELLY JEAN BRUGGER et al., Appellees, v. JOSEPH
ACADEMY, INC., Appellant.

Opinion filed November 21, 2002.

JUSTICE KILBRIDE delivered the opinion of the court:

The defendant, Joseph Academy, Inc. (the academy), is aprivate, not-for-profit corporation serving special educationstudents pursuant to contracts with various local public schooldistricts. In this appeal, the academy requests that we reconsiderthe criteria this court recently adopted in Carroll v. Paddock, 199Ill. 2d 16 (2002), for identifying local public entities under section1-206 of the Local Governmental and Governmental EmployeesTort Immunity Act (the Act) (745 ILCS 10/1-206 (West 2000)).Alternatively, the academy argues that it qualifies for immunityunder the Carroll criteria.

The trial court granted summary judgment in favor of theacademy, finding that it met the definition of a local public entityunder the Act. The appellate court reversed and remanded thecause, holding that section 1-206 of the Act was not applicable tothe academy. 326 Ill. App. 3d 328, 334-35. We adhere to ourdecision in Carroll and affirm the appellate court's judgment,remanding the cause for further proceedings.

I. BACKGROUND

In January 1997, plaintiff Kelly Brugger, then a minor,seriously injured her knee while playing a game of"bombardment" during a physical education class at the academy.Brugger's doctor had previously sent a note to the academy barringher from participation in any activity involving side-to-sidemovement due to a knee injury, but Brugger alleges that she wasordered to play bombardment or risk receiving a failing grade forthe class and being unable to graduate.

The academy is a not-for-profit corporation operating as a"private school for educating emotionally handicapped youth."Brugger's former public school district, Leyden Community HighSchool District 212 (the school district), contracted with theacademy for Brugger's education because it was unable to providean appropriate education for her in its own facilities.

Brugger filed a personal injury complaint against both theacademy and the school district, alleging that her injury wascaused by willful and wanton misconduct in that she was requiredto participate in the game of bombardment contrary to herphysician's orders. The circuit court of Cook County granted theschool district's motion to dismiss it as a party; that ruling is notchallenged on appeal. The academy filed a motion for summaryjudgment, and the trial court granted the motion, finding that thefacility had immunity as a "[l]ocal public entity" under section1-206 of the Act (745 ILCS 10/1-206 (West 2000)). The appellatecourt reversed, finding that this court's decision in Cooney v.Society of Mt. Carmel, 75 Ill. 2d 430 (1979), precluded grantingimmunity to the academy as a "local public entity" under section1-206. 326 Ill. App. 3d at 333.

This court granted the academy's petition for leave to appealon February 6, 2002 (Brugger v. Joseph Academy, Inc., 198 Ill. 2d588 (2002)), pursuant to Supreme Court Rule 315(a) (177 Ill. 2dR. 315(a)). On February 7, 2002, we filed our decision in Carroll.The lower courts in this case did not have the benefit of theCarroll decision, and the academy now raises important questionsconcerning the practical application of the Carroll test in thecontext of a new set of facts.

II. ANALYSIS

The academy raises two issues before this court. First, itargues Carroll v. Paddock, 199 Ill. 2d 16 (2002), was wronglydecided. It contends that the test recently adopted in Carroll toidentify local public entities qualifying for immunity under the Actis overly restrictive and does not comport with either the plainlanguage of the Act (745 ILCS 10/1-206 (West 2000)) or theintent of the legislature. In the alternative, the academy contendsthat, even if the Carroll test is applied in this case, it qualifies asa local public entity under section 1-206 of the Act (745 ILCS10/1-206 (West 2000)). Thus, the academy maintains that the trialcourt properly granted summary judgment in its favor. We beginour examination of these issues with the academy's challenge toour recent decision in Carroll.

A

The Act grants covered entities immunity from tort liabilityfor injuries "arising from the operation of government." 745 ILCS10/1-101.1 (West 2000); Carroll, 199 Ill. 2d at 23. The entitiesprotected by the Act include the bodies specified in section 1-206"as well as any not-for-profit corporation organized for thepurpose of conducting public business." 745 ILCS 10/1-206 (West2000).

In Carroll, this court considered whether a not-for-profithospital was a local public entity within the meaning of section1-206 and, thus, entitled to immunity. Carroll, 199 Ill. 2d at 22.We concluded that the undefined term "public business" requiresthe pursuit of " ' "an activity that benefits the entire communitywithout limitation. In addition, the phrase 'public business' is alsotoday commonly understood to mean the business of thegovernment." ' " Carroll, 199 Ill. 2d at 25-26, quoting Carroll v.Paddock, 317 Ill. App. 3d 985, 992 (2000), quoting O'Melia v.Lake Forest Symphony Ass'n, 303 Ill. App. 3d 825, 828 (1999).Furthermore, since "[p]ublic business is the business ofgovernment," a not-for-profit organization seeking immunityunder section 1-206 must establish that it is "tightly enmeshedwith government either through direct governmental ownership oroperational control by a unit of local government." Carroll, 199Ill. 2d at 27. The academy's challenge to our construction of theAct in Carroll presents a question of law. Accordingly, we willreview this issue de novo. In re C.N., 196 Ill. 2d 181, 208 (2001).

1

The academy first argues that Carroll adopted an erroneousdefinition of "public business" for purposes of the Act. It contendsthat, based on our misconstruction of this term, Carroll establishedan overly restrictive test for determining whether an entityqualifies for tort immunity under the Act. Indeed, the academyclaims that our test effectively renders the entire phrase "as wellas any not-for-profit corporation organized for the purpose ofconducting public business" mere surplusage because therequirement of government ownership or control eliminates allnongovernmental agencies.

The academy's contention that a not-for-profit corporation cannever qualify for immunity under our test in Carroll is belied bya case cited in its own brief, Barnes v. Chicago Housing Authority,326 Ill. App. 3d 710 (2001). In that case, the plaintiffs filed a tortcomplaint seeking, in part, recovery for serious personal injuriesallegedly caused by the failure of a resident managementcorporation to provide adequate security at a public housingdevelopment in Chicago. Barnes, 326 Ill. App. 3d at 716.

Resident management corporations are not-for-profitorganizations recognized under a program of the United StatesDepartment of Housing and Urban Development, designed topromote tenant management of public housing developments. See24 C.F.R.