also dissenting:
I disagree with and reject the first sentence in Justice Harrison’s dissenting opinion in this case. In all other respects, I agree with and join in that opinion. I further dissent, as follows.
The majority has voted to affirm dismissal of plaintiffs claim grounded in willful and wanton misconduct, despite the fact that this result immunizes public schools from civil liability for even deliberate injuries to students. See 745 ILCS 10/1 — 210 (West 1996). I find this result untenable.
The majority opinion unfortunately perpetuates and extends erroneous interpretations of section 3 — 108 of the Local Governmental and Governmental Employees Tort Immunity Act previously published by the court. In Barnett v. Zion Park District, 171 Ill. 2d 378 (1996), this court ruled that section 3 — 108 blanketed the Zion Park District with immunity, despite allegations by the plaintiff that lifeguards at a Zion Park District swimming pool knowingly and willfully disregarded pleas to help the plaintiffs drowning decedent, thereby causing the decedent’s death. I dissented in Barnett (Barnett, 171 Ill. 2d at 399 (McMorrow, J., dissenting)), and attempted to demonstrate the fallacy of the majority’s conclusions. I argued, inter alia, that the absence of an explicit exemption in section 3 — 108 for willful and wanton conduct does not lead ineluctably to the conclusion that the legislature meant to include willful and wanton behavior within the scope of immunized conduct. I noted as well that reasons sustaining governmental immunity for simple negligence do not necessarily apply to willful and wanton conduct, and therefore a legislative purpose to extend immunity to willful and wanton conduct demands an express statement of that intent. I observed that the majority’s expansive reading of section 3 — 108 defied our constitutional duty (Ill. Const. 1970, art. XIII, § 4) to find only those immunities expressly granted by statute and to assume that any immunity not specifically enacted did not exist.
My conviction that this court reads a willful and wanton exception into an enactment where none exists remains as strong today as when I stated it in Barnett, and later stated it in In re Chicago Flood Litigation, 176 Ill. 2d 179, 213 (1997) (McMorrow, J., concurring in part and dissenting in part), and Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 354 (1998) (McMorrow, J., concurring in part and dissenting in part). For the reasons stated in those separate opinions, I would reverse the decisions of the circuit and appellate courts in the case at bar and reinstate count I of plaintiffs complaint.
SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING
CHIEF JUSTICE FREEMANdelivered the opinion of the court:
In his petition for rehearing, plaintiff notes that the General Assembly has recently exercised its legislative responsibility in this area. The legislature rewrote section 3 — 108; it now reads as follows:
“§ 3 — 108. (a) Except as otherwise provided in this Act, neither a local public entity nor a public employee who undertakes to supervise an activity on or the use of any public property is liable for an injury unless the local public entity or public employee is guilty of willful and wanton conduct in its supervision proximately causing such injury.
(b) Except as otherwise provided in this Act, neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property unless the employee or the local public entity has a duty to provide supervision imposed by common law, statute, ordinance, code or regulation and the local public entity or public employee is guilty of willful and wanton conduct in its failure to provide supervision proximately causing such injury.” (Emphasis added.) Pub. Act 90 — 805, § 5, eff. December 2, 1998 (amending 745 ILCS 10/3 — 108 (West 1994)).
The amended section 3 — 108 expressly allows claims of willful and wanton misconduct against local public entities and employees such as contained in count I of plaintiffs complaint. Plaintiff notes that the new section 3 — 108 took effect on December 2, 1998, and that this court issued its original judgment the next day, December 3. Plaintiff contends that the new version of section 3 — 108 applies to his case. He asks us to reverse the dismissal of count I and to remand this cause to the circuit court for further proceedings relating thereto. We cannot accept plaintiffs contention, and we decline to reverse the dismissal of count I.
Plaintiff argues that the legislative debates surrounding the amended section 3 — 108, coupled with the fact of its enactment, demonstrate that the legislature never intended to immunize willful and wanton misconduct. Thus, according to plaintiff, since the unamended section 3 — 108 never immunized willful and wanton misconduct, then plaintiff should be allowed to pursue count I. We disagree. Illinois courts ascertained the legislative intent of the unamended section 3 — 108 from its plain language. Barnett, 171 Ill. 2d at 391-92; Payne v. Lake Forest Community High School District 115, 268 Ill. App. 3d 783, 785-87 (1994). That intent must prevail and be given effect without resort to other interpretive aids. See Envirite Corp. v. Illinois Environmental Protection Agency, 158 Ill. 2d 210, 216-17 (1994).
We conclude that the amended section 3 — 108 does not apply to count I also because the school district in this case has a vested right to the total immunity provided by the unamended section 3 — 108. It is settled that where the legislature changes the law pending an appeal, “a reviewing court should simply apply the law as it exists at the time of the appeal, unless doing so would interfere with a vested right.” (Emphasis added.) First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 290 (1996). “Although not capable of precise definition, a vested right is a complete and unconditional demand or exemption that may be equated with a property interest.” First of America Trust, 171 Ill. 2d at 291. The due process clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 2) protects such vested rights from legislative interference. First of America Trust, 171 Ill. 2d at 289. Further, the property rights of local public entities “are protected by the same constitutional guaranties which shield the property of individuals from legislative aggression.” Board of Education of Normal School District v. Blodgett, 155 Ill. 441, 450 (1895).
This court has agreed with the view that “ ‘an exemption from a demand or an immunity from prosecution in a suit is as valuable to the one party as the right to the demand or to prosecute the suit is to the other.’ ” Blodgett, 155 Ill. at 449, quoting Campbell v. Holt, 115 U.S. 620, 630, 29 L. Ed. 483, 487, 6 S. Ct. 209, 214 (1885) (Bradley, J., dissenting, joined by Harlan, J.). Thus, it has long been recognized that “[a] vested ground of defense is as fully protected from being cut off or destroyed by an act of the legislature as is a vested cause of action.” 16A C.J.S. Constitutional Law § 260(b), at 91 (1984); accord 6 R.C.L. Constitutional Law § 306, at 319 (1915); see, e.g., Massa v. Nastri, 125 Conn. 144, 148-49, 3 A.2d 839, 841 (1939) (amended statute cannot retroactively impose on defendant liability for simple negligence when, under former statute, defendant was liable only for willful and wanton misconduct). Put simply, the legislature lacks the power to reach back and breathe life into a previously barred claim. See Sepmeyer v. Holman, 162 Ill. 2d 249, 254 (1994); Wilson v. All-Steel, Inc., 87 Ill. 2d 28, 40-41 (1981).
When this cause of action arose, the school district’s immunity under the unamended section 3 — 108 was “unconditional,” and “ ‘immediate, fixed and determinate’ ” (see First of America Trust, 171 Ill. 2d at 291, quoting City of Chicago v. Collin, 302 Ill. 270, 275 (1922)); it did not depend on the entry of a judgment. Thus, the school district’s right to the total immunity provided by the unamended section 3 — 108 vested when the cause of action accrued. See Harraz v. Snyder, 283 Ill. App. 3d 254, 263 (1996); Zielnik v. Loyal Order of Moose, Lodge No. 265, 174 Ill. App. 3d 409, 411 (1988); Massa, 125 Conn. at 148-49, 3 A.2d at 841. The amended section 3 — 108 cannot reach back and take that vested right away, impose a new duty on the school district, and breathe life into this previously barred claim.
We note that none of the cases cited by Justice Harrison in his supplemental dissent involves a local public entity as a tort defendant. It is true that a school district, in its capacity as a political subdivision of the state, has no due process rights. People ex rel. Dixon v. Community Unit School District No. 3, 2 Ill. 2d 454, 465-66 (1954); People ex rel. Taylor v. Camargo Community Consolidated School District No. 158, 313 Ill. 321, 324-25 (1924). However, the Tort Immunity Act places a school district, when in the role of a tort defendant, in a different position. Section 1 — 101.1(b) of the Tort Immunity Act provides that “[a]ny defense or immunity, common law or statutory, available to any private person shall likewise be available to local public entities and public employees.” 745 ILCS 10/1 — 101.1(b) (West 1994). In this case, since a private defendant has a vested right to the defense of an immunity, then so does the school district in its position as a private defendant.
DISSENTING OPINIONS UPON DENIAL OF REHEARING