also dissenting:
I agree with Justice Harrison that the majority’s opinion in the case at bar misconstrues the scope of the immunity prescribed by section 3 — 108 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3 — 108 (West 1992)). However, I write separately to emphasize my belief that irrespective of whether the District may be deemed immune from simple negligence in connection with its supervision of swimming activities (see Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501 (1990)), I cannot agree that section 3 — 108 provides immunity from willful and wanton misconduct of government entities or employees. There is a qualitative difference between mere lapses in attention or performing a lifeguarding function in a negligent manner and a deliberate or willful disregard of pleas for help.
According to the facts set out in the majority’s opinion, two different District lifeguards were notified by two different swimming pool patrons that 10-year-old Travis Barnett was injured and in need of immediate assistance. The lifeguards refused to respond to this alert, which may have caused a critical delay in the efforts of others to rescue the boy. Travis remained in the water for several minutes before a man dove in and pulled him from the water. At that point a lifeguard attempted to revive Travis, but he died shortly thereafter. The failure of the lifeguards to respond to the pleas for help negates the very essence of the lifesaving function: taking immediate action upon notice that someone is in trouble and in danger of drowning. Here, the child slipped on the diving board located at the deep end of the pool, hit the back of his head, and sank into the water. Although several patrons saw this happen, apparently none of the 11 lifeguards on duty noticed that Travis was drowning. Because they did not actually witness the incident themselves, the lifeguards who were specifically notified of Travis’ plight chose to dismiss the eyewitnesses’ summons rather than investigate.
I submit that a jury could find the above alleged conduct indicative of an "utter indifference to or conscious disregard for the safety of others.” See 745 ILCS 10/1 — 210 (West 1992) (defining willful and wanton misconduct); Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267 (1994). The failure of the District’s employees to respond to a potentially life-or-death situation for which lifeguards are specifically trained is not a matter of simple negligence. Surely parents who leave their children to swim in pools with lifeguards in attendance may reasonably expect that if their children are injured and in danger in the water, and this is brought to the attention of a lifeguard, the lifeguard will respond in some manner other than merely assuming the call for rescue is a childish prank. It is difficult to believe that the legislature intended to immunize the type of conduct alleged in the complaint in the instant case.1
Providing qualified lifeguards to supervise the activities at public swimming pools is a laudatory measure that most likely minimizes the number of serious swimming injuries occurring at such pools. I recognize that public entities should not be considered absolute insurers for all injuries occurring at public swimming pools. However, even assuming that section 3 — 108 extends immunity to deficient or inadequate supervision, it does not follow that willful and wanton misconduct is additionally immunized. See, e.g., Geimer v. Chicago Park District, 272 Ill. App. 3d 629 (1995). In my view, the majority’s rationale reflects a sincere but misguided effort to construe section 3 — 108 as a clear-cut immunity rule capable of easy application. To reach its goal, however, the majority inverts basic principles of statutory construction and disregards the long tradition of the common law. Therefore, as explained below, I dissent from the majority’s holding that section 3 — 108 confers an absolute grant of immunity, notwithstanding willful and wanton misconduct, based either on the statutory language itself or by judicial interpretation of the legislature’s silence in defining "supervision.”
According to the majority, the "plain language of section 3 — 108 is unambiguous” on the issue of willful and wanton misconduct. The majority contends that the absence of an explicit exception for willful and wanton misconduct means that "the legislature must have intended to immunize liability for both negligence and willful and wanton misconduct.” 171 Ill. 2d at 391-92. I cannot agree that the language of section 3 — 108 encompasses such a broad and unlimited immunity. On its face, section 3 — 108 does not refer to either negligence or willful and wanton misconduct, nor does the statute distinguish between the two types of conduct. Instead, section 3 — 108(a) codifies a general rule of no liability for failure to supervise activities on public property and section 3 — 108(b) exempts swimming pool operators from the immunity, but exempts only to the extent of failing to "provide supervision” during posted hours of operation. The majority’s holding that the statute facially expresses a clear and unambiguous intent to include willful and wanton misconduct in the scope of the immunity is untenable.
The majority’s summary conclusion that willful and wanton misconduct is automatically included within a statutory immunity provision, absent an express exemption for such conduct, is a surprising and worrisome departure from traditional principles of Illinois tort law. In fact, the majority opinion cites no authority from this court that supports such an inference. West v. Kirkham, 147 Ill. 2d 1 (1992), is cited by the majority for the proposition that the legislature’s failure to expressly exclude willful and wanton conduct establishes its intent to immunize such conduct. However, West involved no issue of willful and wanton conduct and is wholly inapposite. In West, the issue was whether the defendant city was liable for its failure to initially construct traffic improvements when notified of the need for traffic signals or other improvements at a particular location. This court answered that question in the negative, noting that section 3 — 104 of the Tort Immunity Act expressly states that there is no liability for "failure to initially provide regulatory traffic control devices.” West, 147 Ill. 2d at 5. This court further observed that no duty at common law was imposed upon a municipality to create public improvements, although once improvements were made the municipality had a duty to maintain improvements in a reasonably safe condition. West, 147 Ill. 2d at 14.
The West court’s discussion of duty highlights a key distinction between that case and the case at bar: in West, there was no duty to initially install traffic signals, either at common law or by statute, and therefore there could be no liability on the part of the government entity for either negligent or willful and wanton failure to initially provide traffic devices. In the instant case, however, the majority expressly recognizes that "the District owed Travis a common law duty of reasonable care.” 171 Ill. 2d at 387. It thus becomes apparent that the West decision, which involved a different statutory immunity provision and different common law principles regarding duty, does not support the majority’s effort to construe section 3 — 108 as an absolute immunity.
There are strong reasons why the policies underlying grants of immunity for simple negligence should not be impliedly expanded to reach willful and wanton or intentional misconduct. The traditional workings of government involve a myriad of situations in which people may be injured because of negligence on the part of public entities or officials carrying out their government duties. The general rationale for granting public entities the protection of immunities not enjoyed by private entities is the significant expense and burdens placed upon the government when lawsuits are permitted to flourish unchecked. However, the rationale underlying a grant of immunity for simple negligence is different in kind from any justification for immunizing tortious conduct that is intentionally harmful or willful and wanton. See, e.g., Barth v. Board of Education, 141 Ill. App. 3d 266, 273-74 (1986). Accordingly, if the legislature actually intended to venture beyond the traditional negligence-based immunities and extend protection to public entities and employees for conduct which demonstrates utter indifference to or conscious disregard of the safety of others, the immunity statute in issue should positively state such intention.
Illinois case law reveals that the Tort Immunity Act is not ordinarily viewed as shielding willful and wanton misconduct. Indeed, this court has in the past implicitly acknowledged that the scope of section 3 — 108(b) does not extend to willful and wanton misconduct in the supervision of swimming activities. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501 (1990), overruled in part on other grounds, McCuen v. Peoria Park District, 163 Ill. 2d 125, 129-30 (1994). In Burdinie, a case involving an injury allegedly caused by the negligence of a swimming instructor, this court expressly distinguished the facts from those in which plaintiffs plead intentional or willful and wanton conduct in connection with a swimming pool injury. In contrast, in the case at bar, plaintiff persuasively sets forth conduct that may be characterized as the lifeguards’ willful and wanton failure to respond to repeated warnings of a patron’s imminent drowning. The majority, however, does not acknowledge or discuss Burdinie’s implicit recognition that willful and wanton misconduct removes a tort claim from the scope of section 3 — 108’s immunity. Decisions of the appellate court have assumed that section 3 — 108 does not immunize conduct that is willful and wanton. See Gilmore v. City of Zion, 237 Ill. App. 3d 744, 750-52 (1992); Jackson v. Chicago Board of Education, 192 Ill. App. 3d 1093,1099-1101 (1989); Keller v. Board of Education of Jonesboro School District 43, 68 Ill. App. 3d 7, 9-10 (1978); but cf. Payne v. Lake Forest Community High School District 115, 268 Ill. App. 3d 783, 785-86 (1994); Jefferson v. Sheahan, No. 1 — 95—3161 (Ill. App. March 29, 1996).
' It is true, as the majority observes, that certain provisions of the Tort Immunity Act expressly exempt willful and wanton conduct from the scope of a particular immunity; from this premise, the majority argues, the legislature would have included similar language in section 3 — 108 if it had not intended to immunize willful and wanton misconduct. I am not persuaded, however, that this court must draw a negative inference regarding the intended scope of section 3 — 108 by relying on other dissimilar provisions of the Tort Immunity Act. The conditions placed on liability in one section of the Tort Immunity Act do not transport well to a different section that involves separate and distinct concerns. For example, a seemingly unqualified statutory immunity insulating public entities and employees for "failure to initially [construct] traffic control devices” (745 ILCS 10/3 — 104 (West 1992)) or the failure to "establish a fire department or otherwise provide fire protection” (745 ILCS 10/5 — 101 (West 1992)) cannot be fruitfully compared with a limited immunity for negligence based on the "existence of a condition of any public property intended or permitted to be used for recreational purposes” (745 ILCS 10/3 — 106 (West 1992)) or one based on a public official’s "execution or enforcement of any law” (745 ILCS 10/2 — 202 (West 1992)). Similarly, an immunity statute which shields school teachers from liability in negligence arising out of the discipline and supervision of students is distinguishable from the grant of immunity allowed for the willful and wanton misconduct alleged in this case. The school teachers’ statute recognizes the common law in loco parentis doctrine, which is the derivation of the limited immunity, but contains no express exclusion of willful and wanton misconduct. The courts have nevertheless viewed the statute as exempting such conduct from the immunity provided. See, e.g., Knapp v. Hill, 276 Ill. App. 3d 376, 382 (1995) (the "General Assembly has long provided teachers *** with limited immunity from civil actions based upon negligence absent wilful and wanton misconduct”), citing 105 ILCS 5/24 — 24, 34 — 84a (West 1992).
These various tort immunity statutes encode vastly different concerns rooted in distinct common law principles. Singly or collectively, these immunities shed dim light on the legislature’s intent in drafting section 3 — 108. It appears, therefore, that the majority sets this court on a path filled with pitfalls in suggesting that reliance on scattered provisions of the Tort Immunity Act "unambiguously” supports a "plain terms” construction of section 3 — 108 so as to immunize willful and wanton misconduct in the supervision of swimming pools.
The majority’s construction of section 3 — 108 as conferring a blanket immunity for "supervised” swimming pools also runs counter to article XIII, section 4, of the Illinois Constitution of 1970. This section abolished sovereign immunity in its entirety, except as specifically provided by the legislature. Ill. Const. 1970, art. XIII, § 4. To best effectuate the constitutional provision, Illinois courts should refrain from reading into the immunity of section 3 — 108 broader coverage than is reasonably intended by its terms. As acknowledged by the majority, unless a statute specifically grants an immunity, governmental conduct is subject to the same common law rules of tort liability as that of private parties. E.g., LaMonte v. City of Belleville, 41 Ill. App. 3d 697, 705 (1976); see List v. O’Connor, 19 Ill. 2d 337 (1960); see also Calloway v. Kinkelaar, 168 Ill. 2d 312, 336 (1995) (Freeman, J., specially concurring) (following adoption of the 1970 Constitution, "[t]he rule of governmental tort liability could be avoided only by express grant of statutory immunity”). This court has repeatedly noted that the Tort Immunity Act is in derogation of the common law and should be strictly construed against the government unit seeking immunity. E.g., Curatola v. Village of Niles, 154 Ill. 2d 201 (1993); Aikens v. Morris, 145 Ill. 2d 273, 278 (1991). Therefore, where a provision of the Tort Immunity Act is silent on the question of whether willful and wanton misconduct is exempt from the scope of the immunity in issue, we should not assume, as the majority does here, that such legislative silence translates into a positive or unambiguous intent to grant unconditional immunity.
This court has often recognized the need to construe a particular immunity statute narrowly, with a view to preserving tort liability except where the legislature expressly abridges it. For example, in Aikens v. Morris, 145 Ill. 2d 273 (1991), section 2 — 202 of the Tort Immunity Act was analyzed. On its face, section 2 — 202 excludes only willful and wanton misconduct from the immunity accorded to police officers in the "execution and enforcement” of laws. Therefore, immunity for simple negligence would appear to be absolute. However, after carefully examining the statutory language and reviewing pertinent case law, this court concluded that not every negligent act of a police officer performing routine duties was covered by the immunity of section 2 — 202. In the case at bar, the majority avoids undertaking a similar in-depth analysis of section 3 — 108 to ascertain the scope of, or limitations upon, the District’s duty to provide supervision for swimming activities.
Other recent decisions of this court also have recognized that some forms of governmental negligence may be actionable notwithstanding the grant of an immunity for negligence. See Leone v. City of Chicago, 156 Ill. 2d 33 (1993) (holding that special duty doctrine as a theory of negligence liability exists apart from and is not precluded by section 2 — 202 immunity); Bubb v. Springfield School District 186, 167 Ill. 2d 372 (1995) (negligence immunity arising from condition of public property used for recreational purposes is not a per se rule of negligence immunity extending to all school property but must instead be applied on a case-by-case examination of the property and its use); see also Mc-Cuen v. Peoria Park District, 163 Ill. 2d 125, 129 (1994) (holding that section 3 — 106 immunity for condition of public property used for recreation does not apply to the allegedly negligent conduct of a public employee). The above authorities cast doubt on the validity of the majority’s analysis of section 3 — 108.
Although my dissent has focused primarily upon the willful and wanton misconduct issue, I note briefly my agreement with Justice Harrison that the majority’s interpretation of what constitutes "supervision” is unsatisfactory. As the case law indicates, this court ordinarily engages in a searching and nuanced evaluation of specific governmental tort liabilities and immunities. In the case at bar the majority simply announces that because the Park District "provided supervision” under section 3 — 108(b), since lifeguards were present and working during the hours posted, and plaintiff was injured during the supervised hours, an absolute bar of immunity obtains. The majority opinion states that the language of section 3 — 108(b) "unambiguously does not require any particular level or degree of 'supervision.’ The legislature omitted from the plain language of section 3 — 108 any reference to the quality of supervision required thereunder. Thus, the legislature must have intended to provide unconditional immunity for liability when supervision is provided.” 171 Ill. 2d at 392.
Unlike the majority, I believe that the key question in the case at bar is whether the immunity of section 3 — 108 bars plaintiff from maintaining this action alleging the District’s breach of its duty to Travis, proximately causing his death, because the District’s lifeguards were informed of the child’s injury and imminent risk of drowning, but took no action whatsoever to rescue the boy. Under these facts, was "supervision,” as commonly understood, in fact provided? Cf. Blankenship v. Peoria Park District, 269 Ill. App. 3d 416 (1994) (total absence of lifeguards during "adult swim” constituted lack of supervision). Alternatively, assuming that the immunity of section 3 — 108 extends to inadequate or negligent supervision of swimming activities, does plaintiff’s showing of the nonresponsive conduct of the supervising lifeguards entitle plaintiff to recover damages based on willful and wanton misconduct? The answers to these inquiries involve issues of fact not appropriate for summary judgment.
I would hold that, in the specific facts of this case, the complaint adequately alleges a willful and wanton failure to supervise, and that the cause of action is not barred by section 3 — 108. This approach would not undermine the intent of the legislature to generally immunize local government units for their failure to provide supervision for activities taking place on public property under section 3 — 108(a). Section 3 — 108(b) contemplates that the immunity for failure to supervise shall not apply to publicly maintained swimming pools during regular hours of operation. This statute reflects a reasonable balance of competing legislative concerns— removing the burden of innumerable lawsuits against local government units for not supervising all activities on public property, yet treating public swimming areas as an exceptional situation based on the type of activity and risks associated with such activity. As the instant case demonstrates, in those situations involving conduct that is willful and wanton, or amounts to no supervision at all under the particular facts, the rationale for granting an unconditional immunity under section 3 — 108(b) loses force and persuasion.
For the foregoing reasons, I respectfully dissent.
Plaintiff’s brief includes transcribed excerpts from the General Assembly’s debate over the tort reform legislation of 1986, which included, in Senate Bill 1200, amendments to the Local Governmental and Governmental Employees Tort Immunity Act. Although it appears that none of the various immunities were specifically identified in the debate, the following comment by the bill’s sponsor provides an insight into the legislators’ general intent: "Our first concern was that of local government. Article I of Senate Bill 1200 addresses changes in local government immunity. *** This amendment puts kids back in the parks. It puts Saturday’s heroes back in the high school football playing field. And yet, it makes sure that communities will still be liable for wanton and willful conduct that disregards, with conscious indifference, the safety of its citizens.” (Emphasis added.) 84th 111. Gen. Assem. House Proceedings, June 30, 1986, at 6 (statements of Representative Greiman).