dissenting:
I agree that section 3 — 108(a) of the Tort Immunity Act (745 ILCS 10/3 — 108(a) (West 1994)) contains no exception for willful and wanton misconduct. In my view, however, the majority’s discussion of the relationship between section 3 — 108(a) and section 24 — 24 of the School Code (105 ILCS 5/24 — 24 (West 1994)) is fundamentally flawed. Section 24 — 24 is the controlling provision in this case, not section 3 — 108(a), and under section 24 — 24, count I of plaintiffs complaint asserts a viable claim against the school district for willful and wanton misconduct.
In count I plaintiff seeks to hold the school district vicariously liable for the conduct of one of its employees. Where, as here, a school district’s liability is vicarious rather than direct, the district is subject to the immunity rules established pursuant to section 24 — 24 of the School Code if the employee is also subject to those rules. See Sidwell v. Griggsville Community Unit School District No. 4, 146 Ill. 2d 467, 473 (1992). Not every school employee, however, falls within the ambit of the statute. By its terms, section 24 — 24 applies only to “teachers and other certificated educational employees.” 105 ILCS 5/24 — 24 (West 1994).
In the case before us today, plaintiffs complaint alleges that the school employee whose conduct is at issue was an agent or employee of the school district, but “not a teacher or certified educational employee.” If that were true, disposition of this case woiild be straightforward. Where an employee is not a teacher or other certified educational employee, section 24 — 24 is inapplicable. Accordingly, the statute could not be invoked vicariously with respect to the school district. The question of immunity would be governed instead by the Tort Immunity Act. See, e.g., Montag v. Board of Education, School District No. 40, 112 Ill. App. 3d 1039, 1043 (1983) (non-certified school employees subject to section 3 — 108 of the Tort Immunity Act rather than section 24 — 24); Jackson v. Chicago Board of Education, 192 Ill. App. 3d 1093, 1099 (1989) (employee who was not a teacher performing the function of classroom instruction was protected by provisions of Tort Immunity Act, not section 24 — 24 of the School Code). Under section 3 — 108(a) of the Tort Immunity Act, the district would plainly be immune under count I of plaintiffs complaint.
The reason this case is more difficult is that plaintiffs characterization of the employee has proven to be inaccurate. Contrary to plaintiffs allegations, the school employee whose conduct is at issue here was indeed a “teacher[ ]” or “other certificated educational employee[ ]” within the meaning of section 24 — 24. 105 ILCS 5/24 — 24 (West 1994). In support of their motion to dismiss under section 2 — 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 — 619(a)(9) (West 1994)), defendants submitted affidavits from the school employee and the school superintendent specifically stating that the employee was “a certificated teacher with the State of Illinois” under a current and valid high school teaching certificate issued by the State Teacher Certification Board. A copy of the employee’s actual teaching certificate was attached to the employee’s affidavit and confirmed his status.
Because the employee fell within the category of employees governed by section 24 — 24, that statute, as well as section 3 — 108(a) of the Tort Immunity Act, was applicable to the allegations contained in count I of plaintiffs complaint. To understand the relationship between these two provisions, it is important to understand the scope of section 24 — 24.
Section 24 — 24 confers immunity on teachers and other certificated educational employees for “matters relating to the discipline in and conduct of the schools and the school children.” 105 ILCS 5/24 — 24 (West 1994). Unlike section 3 — 108(a), however, section 24 — 24’s immunity extends only to ordinary negligence. The statute does not confer immunity for willful and wanton misconduct. O’Brien v. Township High School District 214, 83 Ill. 2d 462, 467 (1980). Accordingly, our court has long interpreted the statute to mean that a public school student may bring an action to recover damages for injuries he sustained as a result of conduct by teachers or coaches who exhibited a reckless disregard for his welfare. O’Brien, 83 Ill. 2d at 469; Kobylanski v. Chicago Board of Education, 63 Ill. 2d 165, 173 (1976); see Palmer v. Mt. Vernon Township High School District 201, 169 Ill. 2d 551, 562 (1996).
Today the majority has taken an altogether different view. Under its new approach, the student’s action would be barred by section 3 — 108(a) of the Tort Immunity Act even if it would otherwise be proper under section 24 — 24 of the School Code. My colleagues believe this view is compelled by the plain language of section 3 — 108(a) “without resorting to other aids for construction.” 186 Ill. 2d at 391. The flaw in their analysis is that we are not dealing with section 3 — 108(a) alone. We have two separate statutes here, and if both apply by their terms, the “plain language” rule settles nothing.
In attempting to reconcile section 3 — 108(a) with section 24 — 24, we must be guided by the principle that, whenever possible, a court must construe statutes which are in conflict or which appear repugnant so as to give effect to both. See People ex rel. Moore v. Chicago, Burlington & Quincy R.R. Co., 414 Ill. 419, 425 (1953). The majority’s analysis violates this rule. Under my colleagues’ approach, section 24 — 24 has been reduced to a nullity. For all practical purposes, it will no longer serve any function.
The majority tries to save section 24 — 24 by asserting that it will continue to apply to private schools. This argument has no basis in the law and no support in the precedent of our court. Except in specific and limited circumstances not present here, the School Code is, by its terms, limited in application to public schools. Similarly, the provisions of section 24 — 24 govern only conduct of teachers and other educational employees who are certified by the state. The state certification requirements do not apply to private schools.
Private schools may, of course, voluntarily adopt the standards imposed by the School Code. In addition, the School Code may provide an appropriate model for formulating common law standards of care owed by teachers and other personnel employed by private schools. It is important to keep in mind, however, that the usefulness of the School Code in making that type of policy determination is independent of the law’s actual purpose, meaning and effect. With respect to private schools, the School Code has absolutely no legal force except in narrowly delineated, incidental and indirect ways. See, e.g., Chady v. Solomon Schechter Day Schools, 269 Ill. App. 3d 31, 35 (1995) (because plaintiff’s employer was a private school, the School Code did not apply to give her any statutory rights to employment). As a result, when the majority suggests that section 24 — 24 was intended by the legislature to apply to private schools but not to public schools, they have gotten things completely backwards.
Contrary to what my colleagues may believe, section 24 — 24 of the School Code can be reconciled with section 3 — 108 of the Tort Immunity Act, and it can be reconciled in a very straightforward way. Where there are two statutory provisions relating to the same subject, either in the same act or in separate acts, the specific provision controls and should be applied. People v. Villarreal, 152 Ill. 2d 368, 379 (1992). Section 24 — 24 is plainly more specific in its application than section 3 — 108. Section 3 — 108 pertains generally to the liability of public entities or public employees for failure to supervise an activity on or the use of public property. Section 24 — 24 of the School Code, by contrast, applies to a narrowly defined group of public employees, “teachers and other certificated educational employees,” in a narrowly defined context, namely, when they are engaged in “activities connected with the school program, including all athletic and extracurricular programs.” 105 ILCS 5/24 — 24 (West 1994). Accordingly, where, as here, section 24 — 24 applies, it controls over section 3 — 108(a) and permits a claim for willful and wanton misconduct.
There is nothing the slightest bit novel or controversial about this conclusion. As my previous discussion has indicated, our court has long recognized the viability of damage actions against school districts based on the willful and wanton misconduct of teachers and other certified educational employees. I cannot fathom why my colleagues have suddenly decided to disavow that precedent and leave the children of this state completely unprotected from even the most reckless and irresponsible conduct of those charged with their care at school. Perhaps it is simply another example of the majority’s utter disregard for children. See, e.g., Barnett v. Zion Park District, 171 Ill. 2d 378 (1996); Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110 (1995). In any case, it is an outrage.
My colleagues cannot escape responsibility for their actions by placing blame on the legislature. The legislature is presumed to know our prior construction of the law, and although section 24 — 24 has been amended repeatedly, the legislature has made no changes that would alter our view that willful and wanton misconduct is actionable. Under these circumstances, we must assume that the legislature intended the law to have the meaning we previously ascribed to it. Cripe v. Leiter, 184 Ill. 2d 185, 197-98 (1998); People v. Agnew, 105 Ill. 2d 275, 280 (1985). Accordingly, it is not the legislature that will be to blame for the awful consequences of today’s decision. It is the members of this court.