Grandalski v. Lyons Township High School District 204Grandalski v. Lyons Township High School District 204
delivered the opinion of the court:
On Oсtober 17, 1994, plaintiffs, Kathleen Grandalski, a minor, by Katherine Grandalski, her mother and next friend, and Dennis Grandalski, the minor plaintiffs father, filed a three-count complaint against defendant school district seeking damages for injuries sustained by the minor plaintiff, Kathleen Grandalski (Kathleen). After the trial court granted two prior motions to dismiss, the plaintiffs filed a second amended complaint. Count I of the second amended complaint alleged negligence on the part of the school distriсt for failing to provide a hand belt as a safety device and for the care and treatment rendered to Kathleen after the accident. Count II alleged willful and wanton misconduct for failing to provide the safety equipment, failing to prevent Kathleen from performing the “flip-flop,” and for the care and treatment rendered to her after the accident. Count III sought reimbursement of medical expenses pursuant to the Rights of Married Persons Act (Family Expense Act) (
Facts
On March 25, 1994, Kathleen Grandalski was injured when she fell on her head while performing a gymnastics maneuver during a physical education class at Lyons Township High School. At the time of her injury, Kathleen was a 15-year-old student. The class in which she was enrolled was a basic, introductory physical education class, which involved only basic gymnastics exercises. Kathleen, however, had begun gymnastics training herself at the age of three years
The class during which Kathleen was injured was on the last day for the grading period. The teacher was engaged with other students just before the end of the class. By that time, Kathleen had already been tested and had completed the requirements for the class. She began to perform gymnastics maneuvers on her own in another area of the gym. Kathleen successfully performed a flip-flop. The teacher observed Kathleen’s successful performance. When Kathleen attempted another flip-flop, she was unsuccessful and fell on her head. After the fall, Kathleen sat up on the mat. The teacher attended to Kathleen and also had another student press the emergency button to summon the school nurse. Kathleen complained of pain. The teacher stayed with Kathleen until the school nurse came.
When the nurse arrived, Kathleen was still complaining of pain. The nurse conducted a rоutine examination, observing Kathleen’s breathing, pulse and pupils, and concluded all three were normal. She also determined that Kathleen could move her extremities and that she was not feeling any tingling or numbness. Based upon this examination, Kathleen was taken to the nurse’s office in a wheelchair and her mother was notified. Kathleen’s mother then took her to an emergency room where Kathleen was diagnosed as having a cervical fracture. She was transferrеd by ambulance to Northwestern Memorial Hospital, where she eventually underwent a cervical fusion.
Analysis
Plaintiffs raise several arguments as to why defendant is not immune from liability under the Tort Immunity Act. Our standard of review is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge,
Section 3—108(a) of the Tort Immunity Act
Section 3—108(a) of the Tort Immunity Act provides in pertinent part:
“Except as otherwise provided by this Act *** neither 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 рroperty.”745 ILCS 10/3—108(a) (West 1994).
Plaintiffs contend that this section of the Tort Immunity Act does not bar their claim because “they are not alleging that the school district was negligent in failing to supervise the gymnastics class” but instead claim they are alleging that the school district breached a separate and distinct duty to “provide adequate and safe equipment.” A review of plaintiffs’ complaint and their briefs filed in this appeal unequivocally indicates that plaintiffs are alleging and arguing that the school district was negligent in failing to supervise the gymnastics class. While plaintiffs may truly believe that their allegations concern a school district’s duty to provide safe and adequate equipment, they have failed to distinguish this duty from a teacher’s separate and distinct duty to supervise. The decision to require a student to use a particular piece of equipment falls under the teacher’s duty to supervise. The decision to provide the equipment in the first instance is that of the school district. We will discuss the school district’s duty to provide safe and adequate equipment later in this opinion.
The Illinois Supreme Court recently interpreted
Section 2—202 of the Tort Immunity Act
Despite Henrich’s holding that the express language of
In Barnett, the estate of a pool patron who drowned brought suit against the park district which owned and operated the swimming pool, alleging, among other things, willful and wanton misconduct on the part of the lifeguards. While the court ultimately decided that, pursuant to
Interestingly, plaintiffs only mention Barnett in passing in an attempt to distinguish it by contending that in the present case “plaintiffs are not alleging that defendant was negligent in failing to supervise the gymnastics class.” As we have already discussed, this contention is inaccurate. In any event, plaintiffs’ endeavor to import the School Code back into the analysis through the use of
Section 24—24 of the School Code is Not a “Law” Covered by
Assuming arguendo that
In Barnett, the court concluded that the “lifeguards were not executing or enforcing a law in any sense.” Barnett,
School District’s Independent Duty To Provide Safety Equipment
We next address plaintiffs’ argument that the sсhool district breached its duty to provide adequate and safe equipment. The only allegation that relates to the direct, rather than vicarious, liability of the school district would be plaintiffs’ allegation that defendant was negligent because it “[flailed to provide a hand belt as a safety device for students who were engaged in gymnastics as part of their physical education class thereby creating an unreasonable risk of head and neck injury.” In support of their аrgument, plaintiffs cite Palmer v. Mt. Vernon Township High School District 201,
The School District Did Not Breach its Duty To Provide Safe and Adequate Equipment
Under the School Code, “a school district has an affirmative duty, where students are engaging in school activities, whether they are extracurricular, or formally authorized as part of the school program, to furnish equipment to prevent serious injuries. At the least, a school district should furnish helmets and face guards for a game such as football, where head injuries are common and severe.” Lynch v. Board of Education of Collinsville Community Unit District No. 10,
There is an additional reason why the Lynch decision is distinguishable here. Although the activity in Lynch, as here, wаs not formally authorized as part of the school program, the Lynch court, in explaining its decision, emphasized the fact that the school administration was aware that the game was planned and that several teachers were coaching students for the game. That was not the situation here and plaintiffs could prove no set of facts that would indicate that the school administration was aware that the activity that Kathleen engaged in, namely the flip-flop, wаs planned. Instead, it is undisputed that the gymnastics maneuver that Kathleen executed was not a part of the
Section 2—201 of the Tort Immunity Act
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,
Section 3—109 of the Tort Immunity Act
Plaintiffs additionally allege that the school district is liable to plaintiffs under section 3—109 of the Tort Immunity Act (
“Recreation is defined as ‘refreshment of the strength and spirits after toil: DIVERSION, PLAY.’ Webster’s Third New International Dictionary 1899 (1986). Play ‘suggests an opposition to work; it implies activity, often strenuous, but emphasizes the absence of any aim other than amusement, diversion, or enjoyment.’ (Emphasis omitted.) Webster’s Third New International Dictionary 1737 (1986). In contrast, physical education is defined as ‘education in methods designed to promote the development and care of thebody and [usually] involving instruction in hygiene and systematic exercises and in various sports and games.’ Webster’s Third New International Dictionary 1706 (1986). Thus, compulsory physical education and recreation have different aims: whereas the former seeks to instruct, the latter aspires merely to amuse. Accordingly, although some students may enjoy gym class, it cannot be said to be recreation.” Ozuk, 281 Ill. App. 3d at 243-44 ,666 N.E.2d at 690 .
While the Ozuk court went on to discuss the applicability of section 3—106 of the Tort Immunity Act, which is not at issue here, the rationale as to why compulsory physical education is not reсreation applies to the instant case. Because plaintiff was not engaged in “recreational” activity,
Even if we were to conclude the activity here was “recreational,” it was not “hazardous recreational activity” under
Section 6—105 of the Tort Immunity Act
Plaintiffs’ final contention is that the defendant, by the actions of the teacher and the school nurse, can be held liable for rendering negligent medical care to the plaintiff after her injury occurred. Plaintiffs allege that the defendant was either negligent or acted with willful and wanton misconduct with respect to the care and treatment rendered to Kathleen after the injury, including allegations that the teacher and nurse failed to immobilize Kathleen and also permitted her to lie down. Plaintiffs further allege that the nurse permitted Kathleen to leave school without her neck being immobilized, failed to properly assess Kathleen’s neck injury and failеd to request appropriate medical intervention including transportation to a hospital by an ambulance. Defendant contends that section 6—105 of the Tort Immunity Act (
“6—105. Neither a local public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others.”745 ILCS 10/6—105 (West 1994).
Without exception, the immunity provided by
In any event, plaintiffs here have alleged no facts that would support an allegation that the teacher or the school nurse engaged in willful and wanton misconduct with respect to the care and treatment provided to Kathleen after her injury. The Tort Immunity Act defines willful and wanton conduct as “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.”
Accordingly, for all of the foregoing reasons, we affirm the judgment of the circuit court of Cook County dismissing plaintiffs’ second amended complaint.
Affirmed.
O’BRIEN, P.J., and O’MARA FROSSARD, J., concur.
Notes
While the Henrich decision has rendered irrelevant the issue of whethеr the teacher here exhibited willful and wanton misconduct, we note that even if there were no such immunity for willful and wanton misconduct, it is unlikely that the outcome here would be any different. The Tort Immunity Act defines willful and wanton conduct, in relevant part, as “a course of action which *** shows an utter indifference to or conscious disregard for the safety of others.”
While the court in McGurk distinguished negligence from willful and wanton misconduct on the part of the school district, neither is present in the instant case, where the equipment was furnished and was not claimed to be defective.
Plaintiffs claim that they have also alleged willful and wanton misconduct on the part of the nurse, which will be discussed separately.