No. 2--96--0561
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
JOSHUA A. HENRICH, by his ) Appeal from the Circuit Court
Mother and Next Friend, ) of Lake County.
Judith Henrich, )
) No. 95--L--1017
Plaintiff-Appellant, )
)
v. )
LIBERTYVILLE HIGH SCHOOL, and )
LIBERTYVILLE SCHOOL DISTRICT )
128, )
Defendants-Appellees and )
Counterdefendants-Appellees )
(Justin Burg, Defendant and ) Honorable
Counterplaintiff-Separate ) Stephen E. Walter,
Appellant). ) Judge, Presiding.
______________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
Plaintiff, Joshua A. Henrich, by his mother and next friend,
Judith Henrich, filed a three-count complaint in the circuit court
of Lake County seeking damages for personal injuries. Counts I and
II of the complaint were directed against defendants Libertyville
High School (the High School) and Libertyville High School District
128 (collectively, the District). Count I alleged willful and
wanton misconduct. Count II alleged negligence. Count III was
directed against defendant Justin Burg and alleged negligence.
Burg subsequently filed a counterclaim for contribution against the
District.
The circuit court granted the District's motion to dismiss
counts I and II on the ground that the District was immune from
liability under section 3--108 of the Local Governmental and
Governmental Employees Tort Immunity Act (Tort Immunity Act) (745
ILCS 10/3--108 (West 1994)). The court also dismissed Burg's
counterclaim against the District.
Plaintiff appeals the dismissal of counts I and II of his
complaint. Burg appeals the dismissal of his counterclaim. The
issues raised on appeal are: (1) whether the trial court erred
when it dismissed count I of plaintiff's complaint because section
24--24 of the School Code (105 ILCS 5/24--24 (West 1994)) governs
this case instead of section 3--108 of the Tort Immunity Act, and
under section 24--24 the District did not have immunity with
respect to the alleged willful and wanton misconduct; and (2)
whether the trial court erred when it dismissed Burg's counterclaim
for contribution.
Plaintiff's complaint alleged the following. On February 14,
1994, plaintiff underwent spine fusion surgery for a low back
medical condition. On September 2, 1994, the physician who
performed the surgery on plaintiff wrote a letter advising
plaintiff that he was permanently restricted from participating in
contact sports "such as wrestling and football in gym class at
school." On and before January 25, 1995, the District had received
a copy of the doctor's letter and also had actual knowledge of
plaintiff's medical condition and the permanent restrictions on his
activities with respect to physical education classes.
Plaintiff's complaint further alleged the following. On
February 2, 1995, plaintiff was a 17-year-old student at the High
School. On that date, an agent or employee of the District
required plaintiff to play and participate in a game of water
basketball during a physical education class in the pool area of
the High School. The District knew or should have known that water
basketball involved physical contact between the players.
Plaintiff was severely and permanently injured while participating
in the water basketball game.
Count I of plaintiff's complaint asserted that the District
required, allowed, or failed to prohibit plaintiff's participation
in the water basketball game, knowing that the game involved
physical contact and knowing of plaintiff's medical condition
and/or the restrictions on his activities due to his medical
condition. Count I further asserted that the District allowed
Burg, a fellow student, to participate in the water basketball game
knowing that Burg was a particularly rough player. Count I claimed
that the District's acts constituted willful and wanton misconduct
which proximately caused plaintiff's injuries.
Count II of plaintiff's complaint reiterated the alleged acts
by the District set out in count I and added that the District
assigned a noncertified or inadequately trained substitute teacher
to the physical education class and failed to adequately supervise
the class. Count II claimed that the District's acts constituted
negligent conduct which proximately caused plaintiff's injuries.
The District responded to the complaint by filing a combined
motion to dismiss the complaint pursuant to section 2--619.1 of the
Code of Civil Procedure (Code) (735 ILCS 5/2--619.1 (West 1994)).
One of the two parts of the District's combined motion was pursuant
to section 2--619 of the Code (735 ILCS 5/2--619 (West 1994)). The
section 2--619 part of the motion sought the dismissal of counts I
and II of the complaint on the ground that the District was immune
from liability under sections 3--108(a) and 3--109 of the Tort
Immunity Act (745 ILCS 10/3--108(a), 3--109 (West 1994)).
The other part of the District's combined motion to dismiss
the complaint was pursuant to section 2--615 of the Code (735 ILCS
5/2--615 (West 1994)). The section 2--615 part of the motion
sought the dismissal of count I of the complaint on the ground that
count I failed to plead adequately that the District's conduct was
willful and wanton.
Burg filed an answer to count III of the complaint. Burg
later filed a counterclaim for contribution against the District.
The circuit court first partially disposed of the District's
combined motion to dismiss the complaint by denying the section
2--615 part of the motion and continuing the section 2--619 part of
the motion. The court next issued an order granting the District's
motion to dismiss count II only. The court based its ruling on a
determination that the District was immune from negligence actions
under the Tort Immunity Act.
In a subsequent order, the circuit court granted the
District's motion to dismiss count I. The court based its ruling
on a finding that section 3--108 of the Tort Immunity Act provided
immunity to the District for claims alleging willful and wanton
misconduct as well as claims alleging negligence. In the same
order, the court dismissed Burg's counterclaim for contribution
against the district. The order noted that count III of
plaintiff's complaint against Burg remained pending. The order
further stated that the court's prior order dismissing count II and
the present order were final and appealable.
Plaintiff appealed from the orders granting the District's
motion to dismiss counts I and II. However, on appeal, plaintiff
contests only the dismissal of count I. Burg appealed from the
order dismissing his counterclaim against the District. We will
first address plaintiff's appeal.
The ultimate issue before us with respect to plaintiff's
appeal is whether the District was immune from liability even if,
as plaintiff's complaint alleged, the District engaged in willful
and wanton misconduct. The resolution of this issue depends on
whether, as plaintiff contends, section 24--24 of the School Code
was the controlling statute, or whether, as the District contends
and the trial court concluded, section 3--108(a) of the Tort
Immunity Act was also applicable.
The parties do not dispute the immunity provided by the two
statutes. Section 24--24 of the School Code has been interpreted
to provide immunity for negligent, improper supervision by a
teacher and certain other educational employees as to school
activities, but not to provide immunity for willful and wanton
misconduct related to such supervision. Kobylanski v. Chicago
Board of Education, 63 Ill. 2d 165, 173 (1976). Section 3--108(a)
of the Tort Immunity Act provides immunity for both negligent
conduct and willful and wanton misconduct in situations in which it
applies. Barnett v. Zion Park District, 171 Ill. 2d 378, 391
(1996).
Section 3--108(a) of the Tort Immunity Act provides, in
pertinent part:
"[N]either 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." 745 ILCS
10/3--108(a) (West 1994).
The Tort Immunity Act defines "local public entity" by setting
out a list of such entities which specifically includes a "school
district." 745 ILCS 10/1--206 (West 1994). Plaintiff concedes
that "public property," as those terms are used in section 3--
108(a), includes public schools.
Therefore, under the plain and unambiguous language of the
Tort Immunity Act, a public school district is not liable "for an
injury caused by a failure to supervise an activity on or the use
of" a public school. A "failure to supervise," as used in section
3--108(a), encompasses improper supervision. See Barnett, 171 Ill.
2d at 392.
In this case, plaintiff asserts that his injury occurred "due
to improper supervision" of his "in-classroom" activities, in that
he was injured during a supervised gym class. Thus, on its face,
section 3--108(a) applies to the facts of this case to provide
immunity to the District because the conduct in question was
alleged improper supervision of an activity which occurred in a
public school.
Plaintiff does not really dispute the facial application of
section 3--108(a) to the facts of this case. Rather, plaintiff
contends that section 24--24 of the School Code effectively
supersedes the Tort Immunity Act as to what immunities apply in
situations involving alleged improper supervision in a school
setting, particularly with respect to mandatory classroom
activities. In plaintiff's view, section 3--108(a) of the Tort
Immunity Act does not apply in this case because this case involves
improper supervision in a required school class and such situations
are governed exclusively by section 24--24 of the School Code.
In support of his position, plaintiff first cites a line of
supreme court cases in which the court applied section 24--24 (and
a different but analogous section) of the School Code to determine
whether the defendants in those cases were immune from liability
for alleged negligent conduct and/or willful and wanton misconduct
related to the supervision of students during school activities.
Plaintiff contends that these cases (Kobylanski v. Chicago Board of
Education, 63 Ill. 2d 165 (1976), Gerrity v. Beatty, 71 Ill. 2d 47
(1978), Palmer v. Mt. Vernon Township High School District 201, 169
Ill. 2d 551 (1996)), stand for the proposition that section 24--24
of the School Code governs the immunity available to defendants in
cases such as this case, i.e., cases alleging negligence or willful
and wanton misconduct arising from the teacher-student relationship
and involving the exercise of a teacher's personal supervision and
control over the conduct or physical movement of a student. Citing
the same cases, plaintiff asserts that, in such situations, the
supreme court has repeatedly affirmed that defendant school
districts are entitled to immunity only as to negligent
supervision, but not as to willful and wanton misconduct.
The District responds that the cases cited by plaintiff do not
control this case because the defendants in the cited cases did not
seek immunity under the Tort Immunity Act. The District notes
that, unlike the defendants in the cited cases, it relied on the
Tort Immunity Act for immunity. The District asserts that the Tort
Immunity Act plainly provides that its immunities are available to
school districts and therefore the cases cited by plaintiff are
inapplicable.
We agree with plaintiff's contention that Kobylanski, Gerrity,
and Palmer hold that section 24--24 applies to cases of alleged
improper supervision of a student by a teacher. However, we also
agree with the District that those cases do not hold that the Tort
Immunity Act is inapplicable to cases alleging improper supervision
in a public school. Kobylanski, Gerrity, and Palmer simply did
not address the applicability of the Tort Immunity Act to provide
immunity for defendants in such settings. Consequently, those
cases do not support plaintiff's position.
Plaintiff next contends that section 24--24 of the School Code
is the controlling statute in this case rather than section 3--
108(a) of the Tort Immunity Act because section 24--24 is more
specific than section 3--108(a). Plaintiff asserts that it is a
well-known and long-accepted rule of statutory construction that a
specific statute prevails over a general statute.
However, plaintiff does not adequately explain how section 24-
-24 is more specific than section 3--108(a). Section 24--24
provides that teachers and other educational employees must
maintain discipline in schools and on school grounds. 105 ILCS
5/24--24 (West 1994). Section 24--24 further provides that
teachers and other educational employees "stand in the relation of
parents and guardians to the pupils" in matters relating to
discipline. 105 ILCS 5/24--24 (West 1994).
Based on the parental-like relationship between teachers and
pupils set out in section 24--24, courts have construed section 24-
-24 to mean that teachers and certain other employees have the same
immunity with respect to supervising pupils that parents have with
respect to supervising their children, i.e., immunity from
negligent conduct, but not from willful and wanton misconduct.
See, e.g., Kobylanski, 63 Ill. 2d at 172-73. Thus, section 24--24
does not expressly provide any immunity; rather, whatever immunity
section 24--24 provides arises indirectly from the in loco parentis
relationship of teachers and other educational employees with
students. Moreover, any immunity provided to a school district by
section 24--24 is vicarious in that it is derived from the immunity
provided to teachers and other educational employees. Sidwell v.
Griggsville Community Unit School District No. 4, 146 Ill. 2d 467,
472-73 (1992).
On the other hand, one of the specified purposes of the Tort
Immunity Act is to provide immunity from liability to local
government entities such as school districts. 745 ILCS
10/1--101.1, 1--206 (West 1994). Thus, with respect to the
immunity provided to a school district, section 3--108(a) of the
Tort Immunity Act is much more direct and specific than section 24-
-24 of the School Code. Consequently, plaintiff's argument that
section 24--24 is controlling because it is more specific than
section 3--108(a) is unavailing.
Even if plaintiff were correct regarding the specificity of
the statutes, there is another reason why section 24--24 is not
controlling with respect to section 3--108(a). It is well
established that the School Code and the Tort Immunity Act are to
be interpreted independently of each other. Bowers v. Du Page
County Regional Board of School Trustees District No. 4, 183 Ill.
App. 3d 367, 377 (1989).
Bowers involved, inter alia, alleged negligence on the part of
a school district in supplying equipment used in a gym class. 183
Ill. App. 3d at 376. This court determined that the School Code
did not provide immunity to the school district for the alleged
negligence, but that sections 2--109 and 2--201 of the Tort
Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 2--109, 2--201)
provided such immunity to the school district.
Similarly, in this case it is undisputed that the School Code
does not provide immunity to the District for willful and wanton
misconduct. However, section 3--108(a) of the Tort Immunity Act
does provide such immunity. Because these statutes are to be
interpreted independently, the District can avail itself of the
immunity provided by section 3--108(a).
We note that this court has held that section 3--108(a) of the
Tort Immunity Act applies to at least some situations involving the
supervision of students during school activities. In Payne v. Lake
Forest Community High School District 115, 268 Ill. App. 3d 783
(1994), this court held that section 3--108(a) provides immunity to
a school district from liability for alleged willful and wanton
misconduct related to alleged improper supervision by a school
district employee of high school students working on a school
talent show. Plaintiff attempts to distinguish Payne from this
case because Payne did not address the applicability of the School
Code and did not involve the supervision of students during a
required class.
Both in his reading of Payne and in his general position,
plaintiff essentially requests that we construe section 3--108(a)
so that the immunity it provides is not available to school
districts facing allegations of willful and wanton misconduct
related to the improper supervision of a student in a required
class. Plaintiff asserts that unless we construe section 3--108(a)
in that way school districts will have blanket immunity for any
misconduct, including willful and wanton misconduct, in abrogation
of the School Code.
The fundamental canon of statutory construction is to
ascertain and give effect to the intention of the legislature.
Nottage v. Jeka, 172 Ill. 2d 386, 392 (1996). The best indicator
of legislative intent is the language of the statute when given its
plain and ordinary meaning. People v. Tucker, 167 Ill. 2d 431, 435
(1995). Where the language of a statute is clear and unambiguous,
we must give it effect as written, without reading into it
exceptions, limitations, or conditions which the legislature did
not express. Garza v. Navistar International Transportation Corp.,
172 Ill. 2d 373, 378 (1996).
Under the plain and unambiguous language of section 3--108(a),
a school district is not liable for injuries caused by improper
supervision of an activity on public property. 745 ILCS 10/3--
108(a) (West 1994). The legislature did not express any exceptions
to the immunity provided by section 3--108(a). Therefore, under
the above principles, we may not read an exception into the
language of section 3--108(a) for alleged improper supervision by
a teacher that occurred in a required class.
We realize that our decision may be perceived as potentially
leading to harsh results in that students injured during supervised
activities in public schools will no longer be able to recover from
a school district even if the school district engaged in willful
and wanton misconduct related to the supervision of the activity.
However, we are constrained to accept and follow the clear dictates
of the legislature as expressed in section 3--108(a). If, as a
matter of public policy, or for some other reason, the legislature
wished to express an exception to the immunity provided by section
3--108(a) in situations involving improper supervision in a public
school classroom, it could have done so. It has not expressed such
an exception, and we may not construe section 3--108(a) to provide
such an exception.
For these reasons, we conclude that the trial court did not
err when it ruled that the immunity provided by section 3--108(a)
of the Tort Immunity Act was available to the District. Because
section 3--108(a) provides immunity for willful and wanton
misconduct, the trial court correctly granted the District's motion
to dismiss count I of plaintiff's complaint.
We now turn to Burg's appeal. Burg contends that the trial
court erred when it dismissed his contribution action against the
District because (1) Illinois case law allows such actions; and (2)
the statute which provides for several liability precluded the
dismissal of his action.
As to the contention of error based on Illinois case law, Burg
has not cited, and our research has not revealed, any Illinois case
which has held that a party can maintain a contribution action
against a local public entity which is immune from suit. On the
contrary, Illinois cases have consistently held that a local public
entity may assert immunities provided by the Tort Immunity Act to
bar a contribution action. See, e.g., Buell v. Oakland Fire
Protection District Board, 237 Ill. App. 3d 940 (1992); McShane v.
Chicago Investment Corp., 190 Ill. App. 3d 357 (1989); Martin v.
Lion Uniform Co., 180 Ill. App. 3d 955 (1989); Lietsch v. Allen,
173 Ill. App. 3d 516 (1988). Burg has not pointed to anything in
the record which persuades us to disregard these cases.
Accordingly, we conclude that Illinois case law does not support
Burg's argument that the trial court erred in dismissing his
contribution action.
Burg next contends that the trial court erred when it
dismissed his contribution action because section 2--1117 of the
Code (735 ILCS 5/2--1117 (West Supp. 1995)), which provides, in
part, that a defendant in an action seeking damages for bodily
injury "is severally liable only," precluded the dismissal. Burg
asserts that he must be allowed to maintain his contribution action
to determine whether the immunities provided to the District by the
Tort Immunity Act, if any, deprive him of his several liability
under section 2--1117.
The District first responds that Burg has waived this issue
because he did not raise it before the trial court. In his reply
brief, Burg does not reply to the District's waiver argument. Our
review of the record reveals nothing to indicate that Burg raised
before the trial court the issue of whether section 2--1117
precluded dismissal of his contribution action.
Issues not raised in the trial court are deemed waived and may
not be raised for the first time on appeal. Haudrich v. Howmedica,
Inc., 169 Ill. 2d 525, 536 (1996). In this case, Burg has offered
no explanation for his failure to raise the issue in the trial
court. Accordingly, the issue of whether section 2--1117 of the
Code precluded dismissal of Burg's contribution action is deemed
waived.
For the reasons stated, we conclude that the trial court did
not err when it dismissed Burg's contribution action.
Based on the foregoing, the judgment of the circuit court of
Lake County is affirmed.
Affirmed.
GEIGER, P.J., and RATHJE, J., concur.