concurring in part and dissenting in part:
The central issue presented in this appeal is whether the defendant School District is immune from liability under section 2—201 of the Tort Immunity Act (745 ILCS 10/2—201 (West 2000)) for injuries suffered by the minor plaintiff during his physical education class. I concur with the majority’s holding that section 2—201 of the Act provides immunity to the School District against plaintiff’s negligence claims. However, because the majority’s opinion also affirms the dismissal of those claims in plaintiffs’ complaint which are premised on allegations that the School District engaged in willful and wanton misconduct, I respectfully dissent from that portion of the majority’s holding.
Plaintiffs, Jeremy Arteman and his father Steve Artemen, filed a four-count personal injury complaint against Clinton Community Unit School District No. 15 after Jeremy suffered two broken bones when he fell while participating in a roller blading session during a physical education class. Plaintiffs generally alleged in their complaint that the defendant School District provided the students with roller blades that were of “experimental design,” in that the braking mechanism was located at the toe of the boot instead of at the heel. Count I of the complaint alleged negligence on the part of the School District for failing to provide either “the necessary safety equipment for [roller blading] such as but not limited to helmets, shinguards, kneeguards [and] elbow pads” or “[roller blades] that were suitable for their intended use.” Count II of the complaint, also a negligence claim, was brought by Steve Arteman under the Rights of Married Persons Act (750 ILCS 65/15 (West 1996)) and sought recovery of his son’s medical expenses. Count III of the complaint mirrored the allegations in count I, but alleged that the School District’s failure to provide necessary roller-blading equipment constituted willful and wanton misconduct. Count TV of the complaint mirrored the Rights of Married Persons Act claim pled in count II, but was premised on a willful and wanton theory of liability.
The defendant School District moved to dismiss plaintiffs’ complaint in its entirety, pursuant to section 2—619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2—619(a)(9) (West 1998)), on the basis that it was completely immune from liability under various provisions of the Tort Immunity Act. The circuit court granted defendant’s motion to dismiss plaintiffs’ complaint on Tort Immunity Act grounds. The appellate court reversed the judgment of the circuit court.
Therefore, before this court is the question of the propriety of the dismissal of plaintiffs’ complaint in its entirety, including those counts premised on a willful and wanton theory of liability. I continue to adhere to my position that willful and wanton misconduct is not shielded by the immunity contained in section 2—201 of the Tort Immunity Act. For the reasons more fully stated in my separate opinions in Barnett v. Zion Park District, 171 Ill. 2d 378, 399 (1996) (McMorrow, J., dissenting), In re Chicago Flood Litigation, 176 Ill. 2d 179, 213 (1997) (McMorrow, J., concurring in part and dissenting in part); Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 353 (1998) (McMorrow, J., concurring in part and dissenting in part), and Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 501 (2001) (McMorrow, J., concurring in part and dissenting in part), there are cogent reasons why the rationale underlying grants of governmental immunity for simple negligence should not be impliedly expanded to reach willful and wanton or intentional misconduct. It remains my belief that where the Tort Immunity Act is silent on the question of whether intentional governmental misconduct is exempt from immunity, it should not be concluded that such silence translates into an affirmative intent on the part of the legislature to cloak local governmental entities and their employees with unconditional immunity.
This is especially true with respect to the grant of immunity from liability for injuries resulting from an exercise of discretion afforded under section 2 — 201 of the Tort Immunity Act. As I explained in my separate opinion in In re Chicago Flood, 176 Ill. 2d at 214 (McMorrow, J., concurring in part and dissenting in part), because “good faith is a component of discretionary immunity,” section 2 — 201 of the Act does not shield willful and wanton misconduct. See also Village of Bloomingdale, 196 Ill. 2d at 509 n.1 (McMorrow, J., concurring in part and dissenting in part). Accordingly, the two counts in plaintiffs’ complaint premised upon a willful and wanton theory of liability should not be dismissed, and, instead, should be allowed to go forward. Therefore, I respectfully dissent.