Illinois Association of Defense Trial Counsel, IDC Quarterly, Vol. 9., No. 1

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1 Municipal Tort Law By: Steven M. Puiszis Hinshaw & Culbertson, Chicago Henrich v. Libertyville High School - It Was Not Simply a Pyrrhic Victory Introduction In a decision long awaited by school officials and their risk managers, the Illinois Supreme Court in Henrich v. Libertyville High School, 1 resolved the debate over whether 10/3-108(a) of the Local Governmental Tort Immunity Act 2 or the immunity conferred by the School Code 3 should take precedence over claims brought by students for injuries involving school-related activities. 10/3-108(a) provided an immunity against claims involving the failure properly to supervise school related activities or the use of school property. In 1996, in its Barnett v. Zion Park District 4 decision, the Illinois Supreme Court previously held that the protection granted by 10/3-108(a) was absolute. It barred claims brought under both a negligence and a wilful and wanton theory of recovery. Twenty-two years earlier, however, the Court held that the School Code immunity only protects against claims of ordinary negligence. 5 In a splintered decision, the Court in Henrich ultimately concluded that the immunity found in 10/3-108(a) of the Local Governmental Tort Immunity Act prevailed over the School Code s in loco parentis immunity. The day before the Supreme Court announced its decision in Henrich, however the Illinois General Assembly voted to override Governor Edgar s amendatory veto of House Bill House Bill 1151 amended 10/3-108(a) by engrafting a wilful and wanton exception to that immunity provision. House Bill 1151 also eliminated sub-section (b) of 10/3-108, which specifically dealt with the supervision of swimming pools. As a result of the passage House Bill 1151, school districts and other units of local government can now be sued under a wilful and wanton theory for injuries that occur on or after the effective date of that legislation despite Henrich. This article discusses Henrich and addresses whether the decision has any long-term significance or was merely a Pyrrhic victory in light of the passage of House Bill The article will also discuss the amendments made to the Local Governmental Tort Immunity Act in House Bill 1151 and their future implication for school districts and municipalities throughout Illinois. The Henrich Conundrum Joshua Henrich was a 17-year old student at Libertyville High School. On February 2, 1995, he was injured while participating in a game of water basketball during a physical education class at school. One year before that accident, Joshua had undergone back surgery, which involved a spinal fusion. Following that surgery, Joshua s treating physician restricted his participation in certain school-related activities including contact sports such as wrestling and football in gym class at school. Prior to his accident, the defendant school district received a letter from Joshua s surgeon, which prohibited his participation in those activities. The plaintiff alleged that the school district therefore had actual knowledge of Joshua s back condition and the restrictions that had been placed on his participation in school-related activities, yet required him to participate in a game of water basketball in the school s pool. On the date of Joshua s accident, a substitute physical education instructor was supervising his physical education class. The plaintiff alleged that the instructor required Joshua s participation, though the school district should have known that water basketball involved physical contact between its players, contact likely to injure Joshua if he participated. The school district was sued under a negligence theory as well as for its alleged wilful and wanton misconduct in requiring Joshua to participate in an activity where he was likely to be injured. The school district moved to dismiss, attacking the wilful and wanton claim on two separate grounds: the plaintiff s complaint failed to plead sufficient facts demonstrating that its actions were wilful and wanton in nature, and

2 the district was immune from any liability by virtue of 10/3-108(a) of the Local Governmental Tort Immunity Act. Section 10/3-108(a) of the Local Governmental Tort Immunity Act provided in pertinent part: Except as otherwise provided by this Act and subject to subdivision (b), 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 property. Another potential immunity available to the school district is found in of the School Code. That provision of the School Code states:... In all matters relating to discipline and conduct of the schools and of the school children, [teachers and other certified educational employees] stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program, including all athletic and extracurricular activities Since the plain terms, of the School Code confer on educators the status of a parent or guardian, an educator or a school district enjoys the same immunity that a parent can raise in defending a claim brought against the parent by his or her child. 8 This is referred to as the in loco parentis immunity. The School Code immunity protects only against claims of ordinary negligence, it does not bar claims of wilful and wanton misconduct. 9 In its original motion to dismiss, however, the school district raised only the aforementioned Local Governmental immunity, not the School Code immunity. The trial court initially ruled that the plaintiff s complaint stated a valid claim of wilful and wanton misconduct against the school district. It then dismissed both the plaintiff s negligence and wilful and wanton claims as immune under 10/3-108(a). The plaintiff filed a motion to reconsider the dismissal of his complaint and raised, for the first time, the argument that the School Code s in loco parentis immunity should be applied to his claims. The plaintiff argued that under a rule of statutory construction, the School Code immunity should control the outcome of the case since it is more specific than 10/3-108(a). If the in loco parentis immunity from the School Code rather than 10/3-108 was applicable, the plaintiff could have pursued his claim under a wilful and wanton theory. The trial court denied the plaintiff s motion to reconsider and an appeal ensued. The question ultimately presented for review to the Supreme Court was which immunity should be applied to a claim involving the failure properly to supervise school activities. A Splintered Decision In a fragmented opinion, the Illinois Supreme Court ultimately concluded that the immunity found in 10/3-108(a) of the Local Governmental Tort Immunity Act took precedence over the immunity available under the Illinois School Code. The lead opinion, authored by Justice Freeman, was joined only by Justices Miller and Bilandic. Justice Heiple s concurring opinion provided the swing vote. The primary disagreement between Justice Freeman and Justice Heiple concerned the rationale employed in resolving which of the two competing immunity provisions should be applied. Justice Heiple observed that since the School Code immunity was inapplicable to claims of wilful and wanton misconduct, 10/3-108(a) of the Local Governmental Tort Immunity Act was the only immunity provision that could be applied to that particular claim. Therefore, in Justice Heiple s view, the two immunity provisions compliment one another rather than conflict. One immunity provision simply grants greater protection than the other. 10 Justice Freeman, on the other hand, observed that while the two immunity provisions appear to conflict, they each have their own sphere of influence. Justice Freeman noted that the School Code immunity applies equally to both public and private schools. 11 The Local Governmental Tort Immunity Act, on the other hand, is only available as an affirmative defense to public schools. It does not apply to private or parochial schools. 12

3 Therefore, a comparison of the two immunity provisions in this context leads to the conclusion that the legislature simply intended to provide public school teachers and their districts greater protection than what is granted to their counterparts in private or parochial schools. 13 Justice Freeman found support for this conclusion in Bubb v. Springfield School District 186, 14 where the Court held that [b]y providing [this] immunity, the legislature sought to prevent the diversion of public funds from their intended purpose to the payment of damage claims. As noted above, the immunity provision which the Court in Henrich interpreted ( 10/3-108(a) of the Local Governmental Tort Immunity Act) has been significantly modified by the passage of House Bill The Illinois General Assembly added a wilful and wanton exception into 10/3-108(a) which, in essence, nullifies the practical consequence of the Court s holding in Henrich as to future cases. As a result of the amendment to 10/3-108(a), one is left wondering whether Henrich has any continuing significance or was it merely a Pyrrhic victory. The Continuing Significance of Henrich Court and counsel frequently encounter situations where one or more immunity provisions are potentially applicable to a particular claim. Frequently, one immunity provides a greater degree of protection than another. Often times, an argument is made that since one of the competing immunity provisions is specific, (or more specifically applicable to the type of claim involved), and the other immunity is general, the more specific immunity should be applied and the other simply disregarded. The long term significance of Henrich lies in how the Court instructs us to handle this situation when it arises. In Marks v. United States, 15 the United States Supreme Court said: [w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the ascent of [a majority] of Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.... (Internal citations omitted). Using the Marks standard, what is the narrowest ground on which the lead opinion of Justice Freeman and the concurring opinion of Justice Heiple can be reconciled? It is clear that the lead and concurring opinions respectively take different approaches, but ultimately reach the same conclusion where the language of a statutory immunity provision is unambiguous, the plain language of the immunity should be applied. The primary rule of interpreting statutes, to which all other rules are subordinate, is that a court should ascertain and give effect to the intent of the legislature. 16 Henrich teaches that this rule of statutory interpretation is applicable whether or not the two immunity provisions appear to conflict as Justice Freeman initially observed or compliment one another as Justice Heiple ultimately concluded. This rule of statutory interpretation should be followed irrespective of whether one immunity provision arguably provides greater protection than another. Rules of statutory construction (such as a specific immunity taking precedence over a general immunity provision) should not be employed to avoid the application of an immunity raised by a defendant. T he plaintiff in Henrich raised the argument that the School Code immunity was more specific and therefore should be applied rather than 10/3-108(a). The application of that rule of statutory construction would have rendered 10/3-108(a) meaningless for an entire category of claims to which it was potentially applicable. Neither Justice Freeman nor Justice Heiple endorsed such an approach. In fact, Justice Freeman rejected that argument when he observed, [t]here is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute says. 17 Decisions such as Bradshaw v. City of Metropolis, 18 therefore, should have no continuing precedential value following Henrich. The majority in Henrich appears to have repudiated the approach taken by the Fifth District in Bradshaw where it held that several provisions of the Illinois Motor Vehicle Code took precedence over the

4 immunity for executing or enforcing the law found in 10/2-202 of the Local Governmental Tort Immunity Act. Following Henrich, the plain language of an immunity provision should be applied irrespective of any competing statutory or immunity provisions unless the immunity contains prefatory language, which might render it subservient to another equally applicable immunity provision. House Bill Public Act Following the Supreme Court s decision in Barnett, an intense lobbying campaign was initiated by several bar groups to amend the absolute immunity provided by 10/ This effort culminated in the introduction of House Bill 1151 in the Spring of The bill was initially opposed by local units of government throughout Illinois. Arguments were made that due to the availability of absolute immunity under the Act, monies that would otherwise be devoted to the payment of tort judgments or defense costs were being used for other important purposes. At one Senate hearing, evidence was presented that the Chicago public school system annually saves over $3 million dollars in tort judgments as a result of a vigorous use of the immunities available under the Local Governmental Tort Immunity Act. This translates into an ability to purchase an additional 1,500 computers per year for the Chicago public school system alone. hen it became apparent that the bill could not be killed, various municipal groups negotiated W amendments to the original version of the bill. Ultimately House Bill 1151 was passed by the General Assembly and sent to Governor Edgar. Governor Edgar had made an amendatory veto to a similar bill in 1997, and followed suit again in 1998, making the same amendatory veto to House Bill However, unlike 1997, there were sufficient votes during the 1998 fall veto session to override the Governor s amendments to the Bill. House Bill 1151 was passed into law as Public Act on December 2, 1998, and takes immediate effect. As a result of House Bill 1151, 10/3-108 now provides: Sec (a) Except as otherwise provided in this Act, neither a local public entity nor a public employee who undertakes to supervise an activity on or the use of any public property is liable for an injury unless the local public entity or public employee is guilty of wilful and wanton conduct in its supervision proximately causing such injury. (b) Except as otherwise provided in 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 public property unless the employee or the local public entity has a duty to provide supervision imposed by the common law, statute, ordinance, code or regulation and the local public entity or public employee is guilty of wilful and wanton conduct in its failure to provide supervision proximately causing such injury. * * * Section 99. Effective date. This Act takes effect upon becoming law. As previously mentioned, House Bill 1151 deleted in its entirety the immunity provision formerly appearing in sub-section (b) of 3-108, which dealt with the supervision of public swimming pools. Prior to the passage of House Bill 1151, 3-108(b) provided that when a local public entity posted a notice of the hours its swimming pools were available for use, it could only be held liable for an injury caused by the failure to provide supervision during the hours posted. While the new sub-sections (a) and (b) of 10/3-108 are similar in nature, sub-section (a) only applies to situations where a municipality or local unit of government provides supervision for a particular activity. Sub-

5 section (b) is applicable to claims where no supervision is provided. The amendments to 10/3-108 were carefully crafted so they would not impose a duty to provide supervision where that duty did not already exist under the common law, by virtue of a state or federal statute, or as a result of a local ordinance. One positive result of House Bill 1151 is a provision that the legislature added to the definition of wilful and wanton misconduct found in 10/1-210 of the Act. That additional provision states that the Act s definition of wilful and wanton misconduct, shall apply in any case where a wilful and wanton exception is incorporated into any immunity under this Act. This new provision, which the legislature added to the definition of wilful and wanton misconduct, was intended to insure that older Illinois decisions such as Schneiderman v. Interstate Transit Lines, 19 (which viewed wilful and wanton misconduct as only a slightly aggravated form of ordinary negligence), could not be used to defeat a statutory immunity that recognize an exception for wilful and wanton misconduct. In light of the amendment to 10/1-210, only the statutory definition of wilful and wanton misconduct found in that section of the Act is to be applied to claims falling within the purview of the Act. The obvious result of the amendment to 10/3-108 (a) is the loss of absolute immunity for school districts and other local units of government in Illinois. While they still enjoy a qualified immunity against claims of ordinary negligence, in all likelihood, this will mean that fewer decisions will be resolved through motions to dismiss and more will be decided on summary judgment practice. This will translate into additional defense costs for local public entities, with the possibility of more trials and a corresponding increase in liability exposure, settlements, and verdicts against local units of government. Section 99 of House Bill 1151 (Public Act ) states that it takes immediate effect. It should have no impact, however, as to lawsuits filed prior to December 2, Substantive changes to a statute are presumed to be prospective in nature only. 20 Retrospective operation is allowed only when the language of a statute is so clear that it will admit no other construction. 21 Endnotes 1 No , 1998 WL (Ill.Dec. 3, 1998). A petition for rehearing has been filed in Heinrich. On February 1, 1999, the Supreme Court ordered the defendants to file a response to the petition for rehearing. Until that petition is ruled upon, the court s opinion is subject to revision ILCS 10/3-108(a) (West 1994) ILCS 5/24-24 (West 1994) (applicable to cities with a population of less than 500,000). See, also its sister provision, 105 ILCS 5/34-84 (which provides the same immunity and applies to cities with a population greater than 500,000) Ill. 2d 378, 665 N.E.2d 808 (1996). 5 Gerrity v. Beatty, 71 Ill. 2d 47, 50, 373 N.E.2d 1223 (1978). 6 Public Act An act to amend the Local Governmental Tort Immunity Act by changing and ILCS 5/24-24 (West 1994). 8 Kobylanski v. Chicago Board of Education, 63 Ill. 2d 165, , 347 N.E.2d 705, 710 (1976). See, also, Sidwell v. Griggsville Community Unit School District No. 4, 146 Ill. 2d 467, , 588 N.E.2d 1185 (1992) (where the court implicitly recognized that school districts enjoy vicarious immunity under the School Code) Gerrity v. Beatty, 71 Ill. 2d 47, 50, 373 N.E.2d 1223 (1978). Heinrich, 1998 WL , at *9. 11 Id. at *7 (citing, Hilgendorf v. First Baptist Church, 157 Ill. App. 3d 428, 429, 510 N.E.2d 527 (4th Dist. 1987)). 12 Id. at *7 (citing, Cooney v. Society of Mt. Carmel, 75 Ill. 2d 430, 434, 389 N.E.2d 549, (1979)). 13 Id Ill. 2d 372, 378, 657 N.E.2d 887 (1995) U.S. 188, 193 (1977). 16 Heinrich, 1998 WL , at *3 (emphasis added). 17 Id. at *6 (citing, Illinois Power Co. v. Mahin, 72 Ill. 2d 189, 194 (1978)) Ill. App. 3d 389, 688 N.E.2d 332 (5th Dist. 1987) Ill. 569, 69 N.E.2d 293 (1946). 20 Rivard v. Chicago Firefighters Union, 122 Ill. 2d 303, 309, 522 N.E.2d 1195 (1988). 21 People ex. rel. Eitel v. Lindheimer, 371 Ill. 367, 375, 21 N.E.2d 318 (1939). About the Author Steven M. Puiszis is a partner in the Chicago office of Hinshaw & Culbertson. He is a 1979 graduate of the Loyola School of Law. He is on the Board of Directors of the IDC and is the author of Illinois Municipal Tort Liability, 1st Edition (Michie) 1996.

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