dissenting:
The law should be a haven for children. In the hands of my colleagues, it is becoming a place of despair. The majority has taken the plain and unambiguous language of section 3 — 108 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3 — 108 (West 1992)) and given it a meaning that the legislature could never have imagined. Under its analysis, any child patronizing a public pool during the posted hours of operation does so entirely at his own risk, for the lifeguards have no obligation to help him. Should he falter in the water, they are free to stand by and do nothing. They are free to let him drown.
One of the most perplexing experiences I have had as a member of this court is trying to understand why my colleagues refuse to reasonably interpret the law when a child of tender years is involved. There have been other examples (see, e.g., Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110 (1995)), but this is the most extreme. It is so extreme that one is tempted to see it as the product of a deliberate corruption of the statute. What possible justification my colleagues could have for such conduct eludes me. I, for one, can conceive of no legitimate policy reason that would excuse the kind of death suffered by Travis Barnett.
As the majority’s summary of the facts indicates, Travis lost his life in a tragic and completely avoidable accident at a swimming pool operated by the Zion Park District. In her complaint, Travis’ mother, Rebecca Barnett, alleged that the District should be held liable for his death because it
"(a) Failed to initiate lifesaving procedures to [rescue Travis] after being told by another patron of the pool that [he] had slipped, [fallen] and struck his head on a diving board and dropped into the water;
(b) Did not initiate lifesaving procedures to [rescue Travis] after being told by another patron of the pool that [Travis] was drowning;
(c) Did not initiate lifesaving procedures to [rescue Travis] after being told by another person at the pool that [Travis] was having trouble swimming.”
In seeking and obtaining summary judgment, the District argued that Barnett could not prevail on these claims as a matter of law because it was immune from suit under section 3 — 108(b) of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3 — 108(b) (West 1992)). That statute provides that
"Where a local public entity or public employee designates a part of public property to be used for purposes of swimming and establishes and designates by notice posted upon the premises the hours for such use, the entity or public employee is liable only for an injury proximately caused by its failure to provide supervision during the said hours posted.” 745 ILCS 10/3 — 108(b) (West 1992).
The District contends that the statute bars Barnett’s action because the District constitutes a "local public entity,” the pool is a "part of public property [designated] to be used for purposes of swimming,” the District established hours for the pool’s use and posted those hours on the premises, and lifeguards were on duty during the posted hours. According to the District, the degree of care exercised by the lifeguards in performing their duties was irrelevant. Even if they were totally derelict, liability would still not attach. As long as lifeguards were physically present on the premises when Travis drowned, the supervision requirement of section 3 — 108(b) was satisfied.
In support of its position, the District cites Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 513-14 (1990). In Burdinie, this court held that a park district was immune from suit by a member of a swimming class who alleged that he injured his foot when the instructor, "negligently and in ignorance and disregard for [the plaintiff’s] safety and health,” (Burdinie, 139 Ill. 2d at 512) told him to jump into the shallow end of the pool. The court based its decision on various sections of the Local Governmental and Governmental Employees Tort Immunity Act, including section 3 — 108(b). With respect to that provision, the court held that because "the swimming activity plaintiff participated in was supervised” the park district was immune under section 3 — 108(b) even though the person responsible for watching over the plaintiff, i.e., the swimming instructor, was alleged to have been derelict in performing his duties.
Burdinie has now been overruled in part by McCuen v. Peoria Park District, 163 Ill. 2d 125, 129-30 (1994). Because McCuen did not involve any section 3 — 108 issues, our court had no occasion in that case to consider the question of whether Burdinie’s discussion of the statute remained valid. In my view, however, Burdinie’s application of section 3 — 108(b) was erroneous and must be overruled as well.
Since the abolition of sovereign immunity, governmental units are liable in tort on the same basis as private tortfeasors unless the General Assembly promulgates a valid statute imposing conditions on their liability. The Local Governmental and Governmental Employees Tort Immunity Act is the legislature’s attempt to create certain uniform rules of immunity as exceptions to the general rule of municipal liability. Because the Act is in derogation of the common law action against local public entities, it must be strictly construed against the public entity involved. Aikens v. Morris, 145 Ill. 2d 273, 277-78 (1991).
Adherence to this principle requires that we reject the notion that "failure to provide supervision” occurs within the meaning of section 3 — 108(b) (745 ILCS 10/ 3 — 108(b) (West 1992)) only where there is a complete absence of supervision at a pool, e.g., where a park district provides no lifeguards at all during the pool’s posted hours or where the lifeguards provided leave the pool area and are not in a position to observe the swimmers, as in Blankenship v. Peoria Park District, 269 Ill. App. 3d 416 (1994). If the statute is to have any real meaning, "failure to provide supervision" must also be construed to embrace situations where the supervision provided is inadequate, as Barnett charges here.
There is no merit to my colleagues’ complaint that if inadequate supervision can subject a public entity to liability, the whole purpose behind section 3 — 108(b)’s immunity would be lost. A fundamental flaw in their analysis is that it interprets section 3 — 108(b) as if that is what establishes the public entity’s basic immunity. As even a cursory reading of the statute shows, the general immunity for failure to supervise is actually specified by section 3 — 108(a) of the Act, not section 3 — 108(b).
What section 3 — 108(b) does is to qualify the basic immunity contained in section 3 — 108(a) and create an exception to it. There is nothing ambiguous about the legislature’s intention. If we look at the plain language of section 3 — 108(b), it is clear that the point of that provision is not to free public entities from the responsibility for providing supervision that is adequate, but simply to specify when the duty to provide supervision will be imposed. The idea is no more complicated than this. Where the public entity has posted designated hours for the use of designated swimming areas, its duty to provide supervision will be limited to the hours it has posted. If a person is injured at any other time, a failure to supervise claim is absolutely precluded, as section 3 — 108(a) of the Act specifies, regardless of the factual circumstances.
When a duty to supervise will be imposed under the law is separate and distinct from the question of what standard of care is required once the duty to provide supervision has attached. That is the question that concerns us today, and it can have only one reasonable answer. The duty to supervise must be construed to mean a duty to provide supervision that is adequate. Otherwise, public entities could cloak themselves with immunity merely by providing nominal oversight. As long as someone was present to watch the pool, the statute would be satisfied.
Under such a construction, it would not matter that the number of guards assigned to the pool was too small to observe all of the swimmers, or that the guards had no experience or training in water safety. Indeed, it would not matter if the guards could not even swim. And if they could swim, they would not be obliged to actually enter the pool even if the distress of a swimmer was apparent to them. There would be no exception for willful and wanton misconduct. The guards could stand by and watch someone drown before their eyes, and still the public entity would be immune.
The legislature could not have intended such an absurd, unjust and unreasonable result. If this were all that was required, there would have been no need to even include the supervision provision. That portion of the statute would have no practical effect.
It is axiomatic that courts should avoid construction of a statute that would render any word or phrase meaningless or superfluous. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). Because the statute is capable of another interpretation that avoids these problems, the more reasonable interpretation is the one we must follow. Collins v. Board of Trustees of the Firemen’s Annuity & Benefit Fund, 155 Ill. 2d 103, 110 (1993). Accordingly, contrary to what we may have indicated in Burdinie, the mere presence of a lifeguard or other supervisory personnel during posted hours at a public swimming pool should not be sufficient to immunize the public entity from liability under section 3 — 108(b) of the Local Governmental and Governmental Employees Tort Immunity Act. As previously indicated, the public entity should be required to provide supervision that is adequate before it is permitted to avail itself of the statute’s immunity.
In the case before us, Barnett has plainly alleged that the District did not meet its duty to provide adequate supervision during the designated hours posted for use of the pool. According to her allegations, the supervision provided by the District was grossly inadequate. Based on the evidentiary material and pleadings on file, a genuine issue remains as to that question, and we cannot say that the District is entitled to judgment as a matter of law pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1 — 101 et seq. (West 1992)). The judgment of the appellate court affirming the entry of summary judgment in favor of the District should therefore be reversed, and the cause should be remanded to the circuit court of Lake County for further proceedings.