delivered the opinion of the court:
Plаintiff appeals from the orders of the trial court directing a verdict in favor of defendants James Leeos and the Chicago Board оf Education and denying her post-trial motion for a new trial. The action seeks to recover for personal injuries under the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 1 — 101 et seq.). On appeal plaintiff contends that the orders of the trial court were improper since a prima facie case of negligence was proven against defendants.
The parties agree that the question presented is purely one of law. Plaintiff was injured during her seventh-grade physical education clаss at Mark Twain Elementary School in Chicago. She suffered spinal injuries when she fell while performing an exercise on an apparatus сalled the “rings.” Leeos was the teacher of the class and had given instructions on the performance of the exercise prior tо the accident. Defendants are covered by liability insurance policies. Plaintiff filed her amended complaint under the Local Gоvernmental and Governmental Employees Tort Immunity Act alleging defendants’ negligent conduct. Defendants’ answers denied the allegations of negligence and set forth as an affirmative defense section 34 — 84a of the School Code of 1961 (Ill. Rev. Stat. 1971, ch. 122, par. 34 — 84a). Plaintiff’s reply denied thе applicability of defendants’ affirmative defense to the facts as pleaded in the amended complaint. At trial after plaintiff had presented her case, the trial court directed a verdict in favor of defendants. A post-trial motion for a new trial was denied, the trial court finding that plaintiff had failed to sustain her burden of proving defendants’ willful and wanton conduct as required by section 34 — 84a of the School Codе of 1961.
Plaintiff concedes that she did not allege or prove defendants’ willful and wanton conduct but contends that where, as here, a publiс entity or its employee has procured liability insurance, liability for personal injuries may be founded on ordinary negligence. Plaintiff argues that section 34 — 84a of the School Code of 1961 is not applicable to the facts in this case.
Section 34 — 84a of the School Code of 1961 provides:
“Teachers and other certificated educational employees shall' maintain discipline in the schools. In all matters relating to the discipline in and conduct of the schоols and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities сonnected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.”
It was the trial judge’s decision and is defendants’ position that no liability can attach to a teacher for mere negligence in supervision or maintaining discipline because of the status conferred by this section; namely, that of a parent or guаrdian to aU the students in the classroom. Liability of a parent for injuries to a child does not attach absent willful and wanton conduct. Mroczynski v. McGrath,
Although section 34 — 84a has never been subject to appellate review for the question under consideration here, there are several decisions that have considered identical language found in section 24 — 24 of the School Code of 1961 (Ill. Rev. Stat. 1971, ch. 122, par. 24 — 24). *
In Merrill v. Catholic Bishop,
It cаnnot be disputed that plaintiff’s injuries in the instant case occurred during activities directed by a teacher as part of the school prоgram. In view of the interpretation given to identical language in section 24 — 24, we conclude that section 34 — 84a of the School Code оf 1961 is applicable to the facts as pleaded by plaintiff.
Plaintiff argues, however, that the doctrine of “parental immunity” is eroding, that the justifiсation for the doctrine does not exist in a teacher-student relationship and that therefore we should deny its application to thе case at bar. Unquestionably, Illinois law retains the doctrine of “parental immunity” for mere negligence within the scope of the parental relationship, (Nudd v. Matsoukas,
Finally, plaintiff argues that defendants’ procurement of insurance constitutes a waiver of the provisions of section 34 — 84a of the School Code of 1961. The thrust of her аrgument is that section 9 — 103 (b) of the Local Governmental and Governmental Employee Tort Immunity Act waives the right of a public entity to deny liability for negligent conduct.
This argument is without merit. The Tort Immunity Act provides:
“Every policy for insurance coverage issued to a local public entity shall рrovide or be endorsed to provide that the company issuing such policy waives any right to refuse payment or to deny liability thereto within the limits of said policy by reason of the non-liability of the insured public entity for the wrongful or negligent acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided in this Act.’” (Emphasis added.) Ill. Rev. Stat. 1971, ch. 85, par. 9— 103(b).
The applicable provisions found in the School Code of 1961 do not require, as does section 9 — 103 of the Tort Immunity Act, any waiver of defenses or immunity from suit. The Tort Immunity Act does not purport to impose liаbility on school districts where no liability otherwise exists. (Fustin v. Board of Education of Community Unit District No. 2,
We are compelled to conclude that plaintiff’s amended complaint alleging ordinary negligence is insufficient as a matter of law. It was therefore proper for the trial judge to direct a verdict in favor of the defendants and deny plaintiff’s motion for a new trial.
Accordingly, the judgments of thе circuit court are affirmed.
Affirmed.
DRUCKER and BARRETT, JJ., concur.
Notes
Section 24 of the School Code of 1961 is applicable to cities with populations less than 500,000; section 34 to cities with populations greater than 500,000.