the next matter on the docket is agenda number nine one two zero seven five one bar versus running amabel or appellants are you ready rapidly thank you you may proce make it virtually indistinguishable from negligence and the appellate court decision the majority decision it the regularly contradicts this court's holdings in lynch versus board of education of law justice lisa did her dissent also point out the fact that what the majority decision is really requiring is that public entities take every single possible precaution to prevent all injuries no matter how remote or improbable those injuries may see otherwise they're going to be held liable for willful and wanton conduct or have that possibility of being held liable for wolf when one and especially one with  standard pledge that we use you analyze the teacher's actions to see if there that the teacher took any deliberate identifiable steps to care for their student safety to few students when they're engaged in for hockey but near the end of the decision all of a sudden the poet majority does sort of a third one hundred eighty degrees and decided that they were going to decide to reverse that decision pay someone decision one decision made by world cunningham which was not to mandate the use of an optional piece of safety equipment the safety and so that the appellate majority said that decision alone even though there are all this laundry list of things that the the teacher had done that one decision is enough to create a question for the jury and the is it a course of action which demonstrates conduct that could be seen as utterly indifferent or consciously disregarding the safety of others so clearly in this case there is no intentional conduct on behalf of moral conning him regarding the safety of the students and the there i don't believe there is any way you could say as a matter of that that her conduct rises to the level of under two issues or a one for discretionary immunity a bad judgment call is a discretionary decision but so is it is it in the determination of policy while exercising discretion it depends on the facts certainly this case it is because there is no mandate of law which or any sort of guide out there which would say first of all to a teacher who is running a physical education teacher who is having a heart rate day and providing a number of alternatives for her students to to engage an exercise to raise their heart rate on that day what activities they can engage in and if they're going to play this case was disputed that she alone had the authority to determine how her class was going to be run what activities they were going to do what optional activities would take place and her big day how many kids would play floor hockey what equipment would be used what the rules would be and so without a mandate of law her she did make a policy determination by balancing competing interests she had forty some kids in her class and the goal that day was to get their heart rates up to a certain level in order to try to engage students often to have students actually hopefully wants to participate in some of these activities the other options maybe didn't seem all that great to those students and they the option of running laps jumping rope or running stairs and there's these twelve kids who've done it eight or ten times in the past who said the none of those some very funny me i'd much rather play florida with some evidence in the record that there was  there is a course of action which demonstrates the that we analyze them or looking at one hundred it's doesn't say a single act and so that one of the things one of the multiple things that we're all hunting him consider when deciding what is the safest way to run floor hockey my class is the fact that she had never seen or heard anybody else within the district or a hole in high school had ever seen anyone else suffer an injury playing for hockey spears or an eye injury anything even remotely like this now if the facts had been different and there had been multiple cases of injuries while playing for hockey or multiple i injure ease while playing for aki serious injuries certainly that's another factor that weighs in when we talk about a course of action the things that she was thinking of but we also could go to the harris versus thompson case in which this court looked at willful and wanton conduct as a matter of law on a directed verdict issue and you that decision you nice elation and they they pretty much ignored the rest of it and said but and that we could look at this one thing as one decision made by their teacher and say you know i think that could be a question a jury might find that's even when they said you know the evidence isn't very compelling or in very dramatic but you know we think that we that should be allowed to go to the jury it heris that it was the same sort of thing you have to look at the totality of the evidence and in this case when when considering to tell it he of the other it's regarding all of the staffs that and decisions of moral hunting him made when thinking about the safety of her students it's clear that this this is not a question for the jury just isn't here it's there there were there specific for doing here is he made a decision that he wasn't going to put the siren on and leave that thing running the entire time from the moment the transport began until they got to their final destination they made the decision that they were going to anything that shows that there was no consciousness regard even if you will only an addict if the teacher did anything to protect you well i think when we look at the the case law that's out there obviously for  on one time i don't know that you can come up with a bright line test to say if they just do one thing at one thing that indicates or demonstrates safety or or the the thought of protecting their student safety when you look at say the murray case versus how you center there there was when you balanced out the various decisions made by the instructor in that case there were a whole number of things that were not done that should have been done guidelines that were followed the training that wasn't provided to the teacher a lack of spotters all of these things that the court went through and said you know what yeah that certainly there was some thought it's unintentional nobody intended for that smaller racquetball or i would say probably any all that is used in a ball sport in a physical education or recreational activity whether people football baseball basketball softball soccer ball whatever rules she limited the amount of players because of the space that was available to them so there was only twelve players those kids had been instructed by a little cutting him on floor hockey and what the who her particular see through pools of floor hockey were going to be slap shots keeping the ball on the floor and slashing jab you know tripping all of the things that you often see in a hockey game those are all taken out of consideration for the p e class heart rate day for hockey ever used them mr pena testified to think that once or twice he had a kid with an eye condition or maybe contacts might put him up and not even for hockey as you can teach for sometimes it's my put him out for basketball or something else it's an optional piece of safety equipment she said and i just i don't believe these are necessary for that for hockey in that we're playing here and still green having bar did get hit in the high with  the sequel it's an unfortunate incident but again you look at the standard that were her she did take maybe precautions for the safety of her students and yes it is recurred and in hindsight you could say wow those precautions she took were perhaps insufficient because we have an injury in this case that you know you start to go down that road and then analysis you've changed the standard you've you've you've got it the definition of willful and wanton conduct encouraged to take as many safety precautions as they can in dealing with their students and not criticized for that in hindsight with that you know hindsight is twenty twenty to look back and say well gosh you know you did have an injury to the be criticised for that one thing that they didn't do because every single physical activity or recreational activity physical education thing that the illinois we're dealing with the issue of discretionary munity and we dealing with willful and wanton conduct in the school context with the torn immunity act and so the decision today is going to be important for everybody and what's nice about this case is that it can provide to very nice bright language that will help clarify the law that's already out there with well planned one conduct just as all of the judges have split from the trial court through the appellate court more  this i think it's an opportunity to do so because it's been raised at every level and it was ruled on by the appellate court below and it helps that will help clarify course and and this case that are on the books that essentially conflict did that showed that she was consciously regarding their safety of course she was consciously regarding their safety she's a teacher i think that that's probably the case for most teachers she consciously disregarded throughout every single time that they played for hockey that there was a risk of eye injury and she acknowledged that the ball does not stand the ground the ball goes up can hit the face can hit the eye and evan did suffer that very injury and what makes this case distinct is that the protection to chemistry wherever that may be if it's there it should be used because the school district took the time to buy it and it's there for a reason it's because that injury is clearly foreseeable how that injury may occur we don't know but it's there and so they took the time to protect against it so the teacher's responsibility to make sure that the kids wear it because no high school kids are going to voluntarily go and pick out glasses to wear on their  know but she testified that she that they were with the hockey equipment and she she didn't know and that's part of her conscious disregard to not know what was available to her and if it was sufficient for the number of kids that were playing for hockey because the kids that are playing clarkie there was twelve out of the forty five kids in her class and so theoretically she kept the floor hockey kids in a smaller group because of space and time and and so it wasn't going to be too crazy you showed earlier the decision that she made not to direct them to use the goggles and she had made that decision every time they played for four hockey and that was the course of action is there anything else that you rely on for course no case no and from the opening statement in this trial through the jury instructions through today the issue in this case has been the failure to utilize the floor th that were available for use and for hockey so if the if the school district didn't buy goggles he would have a different outcome apps that we wouldn't be here we wouldn't have survived a two six one thousand motion and even though we know we wasn't clear they were themselves i think that if there is if there are goggles safety goggles in the gym p class then it becomes a discussion decision ok do we need it for this particular activity and they're going to be some activities that would require and some that don't i would say for he would be one that would because you have a ball that's small that can hit you in the eye and that you can't control where that ball is going to go so that's exactly the type of activity that would could run and these kids that are playing for hockey regularly play for hockey and his heart rate so this was again this was something that they were used to and they listen to the teacher and her bull so if she would have told them you need to work on goals they would have done that doesn't make any difference that the third never been an injury and i was i don't think so because if we set that standard that sort of like the one the one bike rule and a dog by case you know want to set that standard where you have to have some injury that happens first and then that person gets a free pass and then only then can you claim for another injury what's important is the foreseeability of injuries so we know that she testified that it was foreseeable that she could that i injury her face injury could happen i think it's the nature of what might happen to the eye i don't think the type of injury that could happen to the i don't think you could possibly say that that would be speculative but just the fact that any injury could happen to  are so is it your position that if you have a box full of equipment and maybe two pair of goggles that are there because you know they they teach racquetball at one point when the two people are using them they put on goggle rest of the kids take their chances are what you're if if you're talking floor hockey it's just if if there were only two goggles then i would say that the teacher has to make that call about who should use it and i would assume she would probably put him on the goalies because they're going to have the balls going at them but in that case if evan playing on the field or not a goalie got hurt in the eye and there are only two bilbo goggles and she chose to use them on the goalies because that's more likely they're going to be hit in the eye and i don't think we have a case so what do we do we don't know how many i mean there could have been one perk right but i there's there's no evidence to the contrary that there was not  enough so i don't think you can hold us responsible for there not being for there being insufficient goggles there they just don't know and that's that's on them for not knowing so we can presume that there was enough because she didn't say that there wasn't enough she was just not sure she knew there was not enough for forty five she didn't know there was enough and so i think that that that's kind of and a relevant point about how many goggles were in the box or not but what is important is that their work goals and they prevent eye injury evan sustained an eye injury in any circumstance where you have an available piece of safety equipment the teacher should be required to utilize that because that's deficient use of the taxpayers money the school districts decision and it keeps the kid safe and that's really the point and it's still preserves the toward immunity act for next a generics which is in those circumstances where there's different factual circumstances you can ever light it accordingly there was only two available not for the whole class things like that but in a case where you know that there are sufficient safety equipment for the activity that would prevent the injury at hand that's an easy bright line rule i think back to you just as burke was just so i'm just one where there's where this takes this is this is the policy implications that we would be discouraging them from making decisions on the part heading things that the teachers might want to use maybe don't have to use i think that argument decided that issue of whether the school district has to provide equipment or not and i would hope as a reality that they're always trying to do the best they possibly can with the budgets that they have so if they can't if they can't purchase a certain safety equipment then they can't and they shouldn't be sued for that but if they do take the time to do it and purchase that cunningham's decisions in the classroom i don't think that i think it should be held just as responsible if if there was such a policy in place and she didn't follow it then it would just be further evidence in support of our case but i don't think that that's required in just above negligence and that's the key here and in a situation when you're dealing with teachers you're probably going to be on that lower end of the continuum because you going to be hard pressed to find a teacher who's not being careful or trying to be careful it doesn't mean they can't make mistakes and it doesn't mean that the school shouldn't be held responsible for that for the injuries that are caused and if i may turn to discretionary immunity for a moment as well as under section one so this may be just a bad judgment on her part is that equivalent to a policy decision or exercise of discretion it's an exercise of discretion it is not a policy decision a policy decisions in that i was going to go there with two to one the discretion immunity statute was created for purposes of immunizing the high decision the executive function when they have to make those hard calls about how we're going to a lot of money and how we're going to a lot resources and they can't possibly do everything they'd love to do there wishlist a teacher carrying out the ministerial duty of conducting a peak class she does that with discretion but that's not exercising policy she is following the policy that comes down which is p teacher that's what you're hired for so you don't teach math and you have to teach p e within our curriculum meaning these are the approved curriculum things that you can do during peak class these are the requirements that you have to me during the time that you're teaching your kids that they can graduate whether she chooses to do floor hockey on a heart rate day or right have the kids run laps that's her discretion but that's not making policy and her deciding what her rules are going to be for floor hockey again is mysteria because she's she's told ok floor hockey is part of your curriculum conducted how you will be no different than a history teacher choosing to use a power point to teach his teachers points verses you know you know using a lecture it's it's that's their choice that they're carrying out the ministerial duty of being whatever teacher they were hired to be and so i think that is a difference it's not her position that teachers decisions or minister that's right and i think that again that would be a bright  we could establish with two to one is that the policy the two to one immunity is for those high level executive functions not for teachers for example because then it's a slippery slope as to how far down does that go in the public employee chain in a school system the teachers are arts is essentially at the bottom of the hierarchy and then they have their department heads they have their athletic directors they have super principals assistant principals superintendents and on up and so they're getting all their instruction all the way down the hierarchy so the discretion immune response is protected the superintendents the boards the public offices that are held that have to make the decisions with the  taxpayer money not what the teacher is doing in her day to day classroom because the school board might not even know how to conduct a p e class but they're making sure that when they hire someone that she has the cations to teach he and then she they're sending her out to do so and so discretion immunity we can we can make that bright line rule and overrule corson and say that course and that went too far that wasn't an exercise of policy how he conducted his shop class that was a discretionary decision that he made he wasn't exercising he was making a policy determination by removing the  and actually that's that's false because the school purchased the plastic hockey sticks and replaced the wooden sticks and then replaced the old balls with the new safety balls they purchased the design the school board th been there about a year when this happened and this is the one they're right and mr pena had been there and he didn't know when they had been purchased but he knew that they had been purchased or he presumed they were and so she's not making a policy determination by so choosing to or not choosing to use the the goggles that's of discretionary decision that she made but that's an exercise of policy and unfortunately those two terms are so closely synonymous that they sound like they can be the same thing but they're really not and i think that's why it would be really helpful for the court to set out that bright line rule to really distinguish the difference between policy makers and those exercising their ministerial carrying out their ministerial duties with their own discretion think that's them and charging them with their discretion to conduct their class within the rubric of the policies that they made educating is that there are there is no such thing as optional safety equipment anymore every single piece of safety equipment that is within the four walls of that school or within the equipment closet in this case and i wish now we had pictures of an inventory of every single piece of safety equipment in there because perhaps there are some neat pads in there from some basketball session years ago or some other piece of safety equipment but now that they're there and it's a readily available piece of safety equipment which in hindsight may have prevented some injury now i would say that's a question of fact and will when one will one and it has to be decided by a jury and can't be decided as a matter of longer the out that the problem here would be well then if that's the case then school districts are going to say we're not going to buy safety equipment because you know let alone optional safety equipment why would we buy any safety equipment at all because we know that if it's a school board determination it's attorney should policy exercise of discretion on our art and then we're not going to take the risk to prevent that from happening right up front and we just won't buy safety i would put we're really it's a slippery slope here to the point where school districts and park districts decide to say you know what we're not going offer these activities any more yet we'll have physical education but it'll be a lecture based course because no matter what we do remember how many steps we take to try to promote safety when you cannot predict every single possible incident that might occur and you cannot take every single possible precaution these goggles if they were in the end the testimony i completely disagree with council on the testimony regarding mr pena the department chair for physical education what he said was no no one knows that if they're kept they were in the same equipment closet in the same area as the the floor hockey equipment but the equipment closet contains the equipment for physical education and so if this is now an optional hese of safety equipment which according to the blight the bright line rule they're educating is me and the tory must be in the end even without any sort of policy or anything barring it well that it's it's going to be mandated for basketball so that a kid doesn't get home in the high water jostling around in the paint it's going to be mandated for tennis because kids spec tennis balls back and forth words each other and somebody might get hit in the eye it's going to be indicted for badminton because you might get hit with the birdie in the eye and it's going to be mandated for every single other activities that were options for the kids you've got a jump rope so if you have six kids standing around in the general area jumping rope isn't it foreseeable that the somebody else could get sweaty and that rope could fly out of their hands and hit a kid across the way  the eye so now you've got to decide well i'm not going to have my optional safety goggles used for floor hockey or do i have to put on the kids jump and roll because will certainly put you on you when you look at foreseeability you can see if i am going to have i've got my forty five kids have got ten kids to say they want to jump rope in the jumpers are going to be over in this area the gym is a foreseeable  follow the analysis this court set out and lynch in harris the the idea that we're going to this is a that there is no doubt in this case that district to eleven is a local public an itty entitled to the immunities and defenses don't know but it's an in a political in this case and we're talking about section one dish two ten and then you know when we talk about the bright line rule of discretionary money under two to one i don't know where  in each particular public entity you would have to draw the line whether it's somebody who's in the say in the control group or a there was one reference in one of the briefs on plaintiff's side regarding well it should only be a given to elected officials but that's not within the statute says the statute says a public employ when engaged in the exercise of discretion and determining policy exercises aggression and it's a public employee that's what the somewhere up in the chain of command i suppose in the fire department but it's not as though this is the court said well no it's only because they're the fire marshal they said was it was a public employee balance competing interests who looked at the situation and said i have all of these people that i have to handle while i'm conducting my fire drill i have to put them somewhere and he made a decision put them over by the door and  door was open and somebody was injured and in there they said this is a public employee balancing competing interests of time fish and sea safety and that's exactly what laurel cunningham was doing in this case she had forty five kids in her gym class she that they had to get their heart rates up to a certain amount she had so much space within the gym she had certain amount of quit and that could be used it was only so many activities that she could supervise at any given time she had these kids who liked to play floor hockey and you know what anytime you can get a kid in physical education to like the activity that they're engaged in that's fantastic of course she's going to want to encourage that she should be encouraging that because it's far more likely that they're going to get their heart rate up to where they're supposed to get it and fulfill the the desires and  the goals of the class if they're doing something that they like to do and so she thought a look at the modified equipment we're using and nobody had ever worn the goggles playing floor hockey and the only testimony really anybody ever using the only time those things were used so soon to take that to take that optional piece of safety equipment say well guess what you had it in your school now all of a sudden it's a mandated piece of safety equipment that  demonstrative for the safety of the students that should be this new standard that the appellate court majority put in here which is you have to have to look and see do they take every single precaution to prevent every single possible injury because that is an impossible standard and it it it will it flies in the face of the public policy regarding toward immunity regarding public entities regarding physical education and for all of those reasons this court should reverse the majority decision in the