No. 3--96--0563
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
BERENICE N. McGURK, Guardian of ) Appeal from the Circuit Court
MICHAEL T. McGURK, a Disabled ) for the 12th Judicial Circuit
Person, ) Will County, Illinois
)
Plaintiff-Appellee, )
) No. 96-L-1734
v. )
)
LINCOLNWAY COMMUNITY SCHOOL ) Honorable
DISTRICT #210, ) William McMenamin
) Judge, Presiding
Defendant-Appellant. )
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MODIFIED UPON DENIAL OF PETITIONS FOR REHEARING
JUSTICE LYTTON delivered the opinion of the court:
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Berenice N. McGurk, as guardian of her disabled son, Michael,
filed suit alleging that Lincolnway Community School District #210
was negligent in furnishing and modifying Michael's football
helmet. The school district filed a motion to dismiss, alleging
that it is immune from suit under the provisions of the Local
Governmental and Governmental Employees Tort Immunity Act (Tort
Immunity Act). 745 ILCS 10/2-101 et seq. (West 1992). The trial
judge denied the motion, but permitted the district to appeal
pursuant to Supreme Court Rule 308. 134 Ill. 2d R. 308.
Plaintiff's complaint alleged that the negligence of
Lincolnway Community High School District resulted in the severe
and permanent closed head injuries that Michael sustained during a
football game. Specifically, plaintiff alleged that the school
district breached its duty to exercise ordinary care when it
furnished Michael with an "All American MaxPro Model 2001" football
helmet, but subsequently modified the helmet by removing the
Shockblocker II safety system and replacing it with a static face
guard.
On appeal, the central issue is whether the Tort Immunity Act
(745 ILCS 10/1-101 et seq. (West 1994)) immunizes high school
districts from alleged acts of negligence pertaining to the
providing of athletic equipment to students. We hold that the Tort
Immunity Act provides such immunity.
In Gerrity v. Beatty, 71 Ill. 2d 47, 51-53, 373 N.E.2d 1323,
1325-26 (1978), the supreme court held that the in loco parentis
provision of sections 24-24 and 34-84a of the School Code (then
Ill.Rev.Stat.1973, ch. 122, pars. 24-24, 34-84a, now 105 ILCS 5/24-
24, 34-84a (West 1994)) did not immunize school districts from the
duty to exercise ordinary care in providing students with equipment
for athletic activities. In Lynch v. Board of Education of
Collinsville Community Unit District No. 10, 82 Ill. 2d 415, 412
N.E.2d 447 (1980), the supreme court clarified the nature of this
duty:
"* * * we think a school district has an affirmative
duty, where students are engaging in school activities,
whether they are extracurricular, or formally authorized
as part of the school program, to furnish equipment to
prevent serious injuries. At the least, a school
district should furnish helmets and face guards for a
game such as football, where head injuries are common and
severe." Lynch, 82 Ill. 2d at 434-35, 412 N.E.2d at 459.
Recently, in Palmer v. Mt. Vernon Township High School District
201, 169 Ill. 2d 551, 662 N.E.2d 1260 (1996), the supreme court
again reaffirmed the existence of a school district's duty to
exercise ordinary care; however, the court also noted the limits of
school districts' obligations:
"The school district had an obligation to provide to all
students, including [plaintiff], the safety equipment
that was reasonably necessary in order to protect players
from reasonably foreseeable, serious bodily injury. * *
* We decline [plaintiff's] invitation to impose upon the
school district a duty to warn students that they should
purchase and wear safety equipment * * *." Palmer, 169
Ill. 2d at 560, 662 N.E.2d at 1264.
It is important to note that Gerrity, Lynch and Palmer addressed
the immunity and duties of school districts under the School Code;
none of these cases pertained to the Tort Immunity Act.
Plaintiff contends that these decisions are antithetical to
the application of the Tort Immunity Act. Specifically, plaintiff
argues that if we were to hold that the Tort Immunity Act applies
in cases such as this, we would be effectively "killing off" the
duty recognized in Gerrity, Lynch and Palmer.
Section 2-109 of the Tort Immunity Act provides that a local
public entity is not liable for an injury resulting from an act or
omission of its employee where the employee is not liable. 745
ILCS 10/2-109 (West 1994). In turn, a public employee is not
liable for an injury resulting from an act or omission when
exercising discretion. 745 ILCS 10/2-201 (West 1994).
In Bowers v. Du Page County Board of School Trustees District
No. 4, 183 Ill. App. 3d 367, 539 N.E.2d 246 (1989), a school
district's motion to dismiss was granted on the basis of the Tort
Immunity Act. The appellate court held that "the School Code and
the Tort Immunity Act are to be interpreted independently of one
another." Bowers, 183 Ill. App. 3d at 377, 539 N.E.2d at 253.
Under the Tort Immunity Act, the analysis focuses upon whether the
alleged acts or omissions involve discretion. In Bowers, the court
concluded that the supply and use of particular equipment
constitutes discretionary acts. Bowers, 183 Ill. App. 3d at 379,
539 N.E.2d at 254. Accordingly, the court affirmed the dismissal
of the negligence count against the school district.
The distinction between the School Code and the Tort Immunity
Act is well established, predating all of the above-mentioned
cases. See Kobylanski v. Chicago Board of Education, 63 Ill. 2d
165, 174, 347 N.E.2d 705, 710 (1976) ("The immunity conferred upon
educators by sections 24-24 and 34-84a [of the School Code] * * *
is not derived from the Tort Immunity Act"). Further, the
selection and modification of specific athletic equipment involve
a degree of discretion. We hold that the circuit court erred in
ruling that the Tort Immunity Act did not immunize the school
district for alleged negligence.
Nonetheless, our holding should not be construed as "killing
off" the duty recognized in Gerrity, Lynch and Palmer. Section 2-
201 of the Tort Immunity Act does not provide an absolute blanket
of immunity to all public entities; rather, it provides immunity
for public employees involved in the determination of public policy
or the exercise of discretion, "[e]xcept as otherwise provided by
Statute." 745 ILCS 10/3-109 (West 1992).
One such exception is found in Section 3-109 of the Tort
Immunity Act. 745 ILCS 10/3-109 (West 1992). Section 3-109
provides that public entities and employees are not liable to
persons participating in hazardous recreational activities,
including body contact sports; however immunity does not extend to
willful and wanton acts that are the proximate causes of injury.
745 ILCS 10/3-109(a), (b) (West 1992). Football is unquestionably
a body contact sport, i.e., a sport in which it is reasonably
foreseeable that there will be rough bodily contact with one or
more participants. 745 ILCS 10/3-109(b)(3) (West 1992). Thus,
under the plain language of section 3-109, the legislature exempted
willful and wanton conduct from the immunity extended to cases
involving body contact sports such as football. See Barnett v.
Zion Park District, 171 Ill. 2d 378, 391, 655 N.E.2d 808, 814
(1996).
As noted above, we have reviewed this case pursuant to Supreme
Court Rule 308. 134 Ill. 2d R. 308. "Review by the appellate court
pursuant to Supreme Court Rule 308 is limited to those questions
certified by the trial court." Thompson v. Walters, 207 Ill. App.
3d 531, 533, 565 N.E.2d 1385, 1387 (1991). Since the question
before this court does not address the issue of willful and wanton
conduct, we decline to make any finding or enter any order
pertaining to that issue.
The certified question of the circuit court of Will County is
answered.
Certified question answered.
HOLDRIDGE, J., concur.
BRESLIN, J., dissenting.
JUSTICE BRESLIN, dissenting:
Because I believe that providing football helmets to students
is a ministerial act which must be carried out with ordinary care,
I respectfully dissent.
Lincolnway asserts that the Tort Immunity Act (745 ILCS 10/1-
1-1 et seq. (West 1994)) provides immunity in this case because,
although it had a duty to provide a helmet, whether or not to
provide a Shockblocker II was a discretionary act. It relies on
Bowers v. Dupage County Regional Board of School Trustees District
No. 4, 183 Ill. App. 3d 367, 539 N.E.2d 246 (1989). In Bowers, the
court held that the provision of equipment for physical education
classes was a discretionary act over which the School Board enjoys
immunity. The court reasoned that since the School Code did not
direct that the Board use or supply particular equipment, the
provision of equipment was a discretionary act to which the Tort
Immunity Act applied. I disagree.
School districts have long had the duty to provide safety
equipment for athletic activities, (Palmer v. Mt. Vernon Township
High School District 201, 169 Ill. 2d 551, 662 N.E.2d 1260 (1996)),
including football helmets and face guards for football games.
Lynch v. Board of Education of Collinsville Community Unit District
No. 10, 82 Ill. 2d 415, 412 N.E.2d 447 (1980). Acting pursuant to
that duty is acting ministerially. See Thomas v. Chicago Board of
Education, 60 Ill. App. 3d 729, 377 N.E.2d 55 (1978), rev'd on
other grounds, 77 Ill. 2d 165, 395 N.E.2d 55 (1979) (furnishing of
equipment is a function separate and apart from discretionary
authority). Although some elements of discretion may be present,
inherent in the performance of every ministerial act is an element
of discretion. See Bonnell v. Regional Board of School Trustees of
Madison County, 258 Ill. App. 3d 485, 630 N.E.2d 547 (1994). In my
opinion, since the Board was required to provide helmets to
students, doing so was a ministerial act which must be carried out
with ordinary care. Therefore, I would hold that the Board was not
granted immunity by the Tort Immunity Act.