Barr v. Cunningham
2016 IL App (1st) 150437
Ill. App. Ct.2016Background
- On June 3, 2010, 15‑year‑old Evan Barr was injured in the eye during a supervised high‑school floor hockey class taught by Laurel Cunningham; the ball bounced up and struck him.
- Barr sued Cunningham and Township High School District 211 for willful and wanton misconduct for not requiring use of available safety goggles; defendants pleaded discretionary and supervisory immunity under the Local Governmental and Governmental Employees Tort Immunity Act.
- Evidence: class used a soft "safety" ball and plastic sticks; games limited to 12 players; rules banning high‑sticking, checking, fighting; goggles were kept with equipment and were available but not required; Cunningham testified she thought the equipment made goggles unnecessary and was unsure whether there were enough for all players.
- Trial court denied cross motions for summary judgment, proceeded to trial, and after plaintiff rested granted defendants a directed verdict holding plaintiff failed to prove willful and wanton conduct under section 3‑108; the court declined to find discretionary immunity under section 2‑201.
- The appellate majority reversed and remanded for new trial, concluding a jury could find Cunningham’s conscious decision not to require already‑available eye protection amounted to willful and wanton conduct; the court also held defendants were not entitled to section 2‑201 discretionary immunity as a policy decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to require goggles is willful and wanton (§3‑108) | Cunningham consciously disregarded safety by not requiring available goggles despite knowledge the ball sometimes rose and could hit faces | Teacher took reasonable safety measures (soft ball, plastic sticks, limited players, rules) so omission was at most negligent | Reversed: jury must decide; directed verdict for defendants on this issue was improper because a jury could find willful and wanton conduct |
| Whether defendants have supervisory immunity for failure to supervise (§3‑108) | Barr: supervisory omission can be willful and wanton where supervisor foresees substantial danger and omits precautions | Defendants: measures taken show no utter indifference; absence of prior injuries supports no willful/wanton finding | Majority: factual dispute exists for jury; dissent: evidence insufficient as matter of law |
| Whether decision not to require goggles is a policy decision entitling defendants to discretionary immunity (§2‑201) | Barr: action was not a policy decision by the school and there is no evidence Cunningham balanced competing interests | Defendants: deciding equipment requirements is discretionary policy protecting them even for willful/wanton conduct | Held: Not §2‑201 policy decision—no evidence Cunningham balanced competing interests; discretionary immunity not available |
| Standard for directed verdict after summary judgment denial | Barr: denial of summary judgment should bar later directed verdict where same evidence exists | Defendants: directed verdict proper because plaintiff failed to prove necessary element at trial | Held: Standards differ; directed verdict reviewed de novo; here evidence could support a jury verdict for plaintiff so directed verdict improper |
Key Cases Cited
- Ziarko v. Soo Line R.R. Co., 161 Ill.2d 267 (willful and wanton conduct exists on a continuum)
- Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494 (directed‑verdict standard; evidence must overwhelmingly favor movant)
- Lynch v. Board of Education of Collinsville Community Unit School Dist. No. 10, 82 Ill.2d 415 (insufficient precautions alone do not establish willful and wanton conduct)
- Poelker v. Warrensburg‑Latham Community Unit School Dist. No. 11, 251 Ill. App.3d 270 (safety rules and precautions can defeat willful and wanton claim)
- Hadley v. Witt Unit School Dist. 66, 123 Ill. App.3d 19 (failure to require available protective goggles and to supervise can present willful and wanton question)
- Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill.2d 335 (§2‑201 requires act to be in determining policy and exercising discretion)
- Arteman v. Clinton Community School Dist. No. 15, 198 Ill.2d 475 (decision not to provide safety equipment may be a discretionary policy determination)
- Miller v. General Motors Corp., 207 Ill. App.3d 148 (willful and wanton requires notice that substantial danger existed)