In a recent case, the appellate court overturned the lower court’s dismissal of a personal injury claim against a school district and its employee, holding that the district and its employee were not entitled to immunity under Sections 2-201 and 3-108 of the Local Governmental and Governmental Employees Tort Immunity Act (“Act”).
In Barr v. Cunningham, the First District of the Illinois Appellate Court concluded that the district was not entitled to immunity under the Act and that the plaintiff’s personal injury claim against the school district should be heard on the merits. On June 3, 2010, plaintiff participated in a floor hockey game with eleven other students in a physical education class. During the game, the plaintiff was hit in the eye when the hockey ball bounced off another player’s hockey stick, causing the plaintiff injury. The plaintiff filed suit against the P.E. teacher and the high school district, alleging that the P.E. teacher’s failure to provide protective eyewear during the floor hockey game constituted willful and wanton conduct for which the district was also liable as the employer. The district denied these allegations and raised affirmative defenses under Sections 2-201 and 3-108(a) of the Act, specifically arguing that pursuant to Section 2-201, it was absolutely immune from liability since the teacher’s acts were discretionary, and, alternatively, that pursuant to Section 3-108(a), it was immune from supervisory liability since its conduct was neither willful nor wanton. The trial court disagreed that the district had discretionary immunity under Section 2-201, but agreed that the plaintiff had failed to prove willful and wanton conduct as a matter of law, and, therefore, the district was immune from liability under Section 3-108(a) of the Act. Based on this finding, the trial court granted a directed verdict in favor of the district, which the plaintiff timely appealed.
Section 3-108 of the Act immunizes local public entities and their employees from liability for injury caused by a failure to supervise an activity on public property unless their failure to provide supervision rises to the level of willful and wanton conduct. 745 ILCS 10/3-108(a). The Act defines willful and wanton conduct, in relevant part, as a course of action that demonstrated “an utter indifference to or conscious disregard for the safety of others or their property.” 745 ILCS 10/1-210. In this case, the appellate court held that a jury could conclude that the P.E. teacher’s decision not to provide protective eyewear, which were readily available, could rise to the standard of willful and wanton conduct and that the trial court erred in granting the district’s motion for directed verdict on this issue. Specifically, the appellate court found that the plaintiff presented sufficient evidence, albeit not the most compelling or dramatic evidence, of a conscious disregard for the safety of the students playing floor hockey.
Under Section 2-201 of the Act, “a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.” 745 ILCS 10/2-201. The appellate court found that the evidence did not demonstrate that the P.E. teacher’s omission to provide safety protective eyewear to students resulted from a policy determination, and, thus, the district was not immune from the plaintiff’s claim under Section 2-201. Based on these findings, the appellate court reversed the trial court’s ruling and remanded for a new trial on the merits of the plaintiff’s claim.
For school districts, this decision effectively limits the defense of immunity under Sections 2-201 and 3-108 of the Local Governmental and Governmental Employees Tort Immunity Act. Please contact Vanessa Clohessy with any questions about how this ruling or the Tort Immunity Act may affect current or future litigation in your district.