applied to this case of the central point that i'll be speaking to is that we believe that it is section one hundred nine not one and that should apply to this case if we believe this case what if one ten  and in this case it is our contention that one o nine is more specific because it deals with hazardous recreational activities and because it clearly applies to the facts of this case there's no question that if both provisions apply would have a legal issue now when you say one zero nine five you're presuming that the help olds are a hazardous activity where your opponent clearly suggests that these people boats are routinely used by children adults up people without any training in boating or sailing or any kind of skilled activity and so how do you how do you see i'm not intending to throwing the towel on any argument that we are picky with it but i'm not sure that i completely understand the question our our central contention is that when we start with one o nine in and the trial court made a mistake that i don't think the school board will but even try to defend and the mistake is simply in ruling they at you must be on the property of the local public entity for one on one to apply one zero nine section the beat doesn't say that it starts by saying that but then it says it also applies and it lists a variety of activities that fit here so i definitely think that having one on one before us and i have copies to distribute if but if it's not conveniently cesspool to anybody but why don't i know structure is quite clear and i haven't seen anybody attempt to defend the ruling that yes the on one ten is the more specific provision because that in your mind anyway determines whether or not willful and wanton is a possible exception to the community right and  so maybe the focus needs to be more specifically on which of these two really is more specific and that statute yes it happy to address that i didn't want to start there because obviously proving one hundred nine is a political tool is an entry to that next point so let me hit that next point on the head i haven't seen this school board attempts to meaning distinguish the murray case which the sport is duty bound to follow and i haven't been able to find you know a good way to distinguish it myself so you know we have just a description in her time when lifeguards are not provided in reasonable warning thereof has been given or the injured party should reasonably have known that there was no wife are provided at the time let's just stop there for a sec ok this earlier it's defined too well here is recreational activity means a recreational activity conduct not profit local public entity which creates a substantial is the sting which from a minor trivial or in significant risk of injury to a participant or a spectator i totally say this case we know that these these people was what what happened here was the logs were removed and they were taking water right ok right that's what made it i mean that's part of the reason and isn't it kind of clear that we're not privy released to the water into these cattle boats that this incident wouldn't have occurred apart from the edition to of course your claims of lack of provision i mean there's well yes but that i fully agree with you that in all probability these deaths would not have occurred if the plugs were in the boats having said that though there were no make one o nine the more specific with respect to trampolines since it mentions trampolines but when comparing one zero nine two to one jan activities on the water as opposed to v various hazardous activities one or one of which was mentioned to occur on water that in that instance one seems to be overshadowing one o ok i'm happy to speak to that one zero eight it's not just supervision it's supervision and be on the land of a public entity it's a very broadly applicable statute and why don't i trump it because it mentioned trampoline and look the waterway statute in one's hand applies to all the water that there again look but we know that there's a different intent with one ten because the legislature excluded this willful and wa you're right it seems to me that one on one specifically lists certain types of water of activities that it's around waterways that one ten lists all activities on water so i don't think it's a great leap to say that one zero nine is more specific because it only applies to record hazardous recreational activities i'm wondering where as one plan in it includes that and many other things and when i speak to the question of why it's a hazardous recreational activity we have forty one degree water we have no personal flotation devices even though those are required by safety we have an overriding statute that requires way activity depends on the temperature of the water well it him i mean way to think about this if you die there was a pearl earring the date wouldn't be hazardous but if it was later tonight with temperatures going down become task well in november that's not you isn't it a logical extension of your argument i don't think so because it in this situation with those paddle boats and their absence of bugs and the freezing cold water twenty four seven during that time of year that was an important factor in these drugs people couldn't last a really good what is it also important to your point equation that you look at the complete definition of hazardous recreational activity which includes the effect be on the property of a local public entity and does that local public entity have to be the chicago school district well my answer to that is they had though the legislature put in hazardous recreational activity also means they inserted the word also right after the paragraph it started with on the land of the local public entity and by choosing the word also i believe that the legislature  covered i think so i mean i mean from a foreign language but i think the legislature could have clearly said that this only applies on the land of local public entity and i think they didn't do that but they do that at the be giving you my question to you is does is this this requirement you're saying is completely missing that it doesn't have to be on the property of the local public entity yeah sure step that helped you well no because there are very few cases that we found addressing the question but i can tell you this if a gym teacher took hits from the chicago public school district down to oak street beach in the winter time and put them in forty degree water with no life jackets and they all drowned let's say it was a swim team teacher like the one i had up at bethel who wanted to this woman tell us that cookies which was probably dangerous would you really be concerned that it's not a hazardous herb recreate of the of the local public entity i do i think that that waterway op where it occurs to me it's a difference in waterway or a river or lake lake michigan versus a swimming pool and teachers bringing the students to the lake i mean there's a lot of a lot of pop issues here there are and you know we have briefed other things like one ten should not apply to nine right hereon local entities we have some support for other arguments i just chose the present time is limited the chicago school district supervising the waterway ok it doesn't have to be that waterway you rely on it is where the court said that it does make a difference whether it's the supervision of the reached if one looks at one o nine is a quick a boy and as marie requiring that one with a logical marie extend the situation requiring that it from one time when we get into the question of putting all of through its our own internal policies and through y m c a policies that it embrace was required to have an eight to one ratio meaning because we have thirty one students for adults sleeping in the ward house with those kids they didn't have they have they broke the rules that occurred on the land a consequence of it was that the kids went out one night took a paddle boat managed to do it safely it floated off to the other side one of the teachers involved with this you have discovered or acted upon what they knew well though there is some have a lance and bear in mind this this order was entered at the front end of this case the case against the why is still proceeding below one sade so we know a lot more about the facts of this case today than we knew when when this record was created so for purposes of you know you you have complaints it and i'm sure you re three different complaints before you that you're looking at for two six one thousand purposes the consolidated death complaints the complaint by injury and the third party complaint by the wise is this just to clarify this was a six nineteen case right  it repeated the principle that is contained in some of the documents that were attached the pleadings which is the eighth one ratio bet that required ratio is not a contested fact for purposes of this appeal and you're not trying to extend the duty on the part of the school district to replace the plugs rather you're trying to extend the duty to prevent the students from somehow  seizing these boats ahead of the of what i'm doing someone authorized paddleboat with them is that right you're correct and i would add to it that the source of the duty is statutory the board of education in terms of its foreseeability it becomes very attenuated because the idea of for seeing that first these students notwithstanding there is seizure others or can we find that reckless conduct in so far as the failure to provide supervision coarsening any kind of breach excellent question it hits on the difference between the legal aspect of proximate cause and effect aspect of proximate cause the specifics of how the kids may have drowned in the facts river did not need to be foreseen by those who were supervising and maintaining discipline there is a river down there that was dangerous and i would have been so easy man so even if there was a man who came out of the movie deliverance lurking in that river and c best that will want misconduct is still attributable to the school board because they provided the guards the students would have remained in their beds smoking their little reefers under you know the good news the good news is these kids actually were all toxicology screen and gifted students from a charter program but you're right look around her i'm not going to challenge the idea that there is such a thing as the legal aspect children were supposed to be asleep that that lack of having the ratio of meat the test of willful and wanton misconduct yes and the conscious disregard aspect given the dangers the do the magnitude and days is were generally speaking that the lack of the number of chaperones i mean i don't know what case you would suggest would support this disregard but let me you know there are a number of supreme court cases that address the standard but let me speak to what we're really talking about here the parents of these children most were minors entrusted their safety predominantly to the chicago board of education and also to the y m c a these are city kids that were not used to being around rivers there's nothing shocking you know the mention of hers recently there's a lake in the city of these river rules that they broke and the significance of those rules that were violated and to what extent they caused or contributed to cause these deaths in the first instance present classic examples of t beauty if that's what he ends up well you just discordant i think a policy question comes up because the judge who should really be passing on this issue is the judge most from no you're with the case and i'm probably a more fully developed the bottom of their pontoons were not in them that is that is certainly a fact and i'm not running away from the effect at all nor my running away from proximate cause i'm just pointing out that in the crowd towards you with this she never reached they had we have plenty of it's specially in the first consolidated complaint that goes directly to what the danger was and the foreseeability issue there from paragraphs twenty one through forty five or so of that consolidated complaint there's a great deal  respectfully i would say that the duty is statutorily described in the school code that the issues here involve the breach of their duty and involve whether their breach was a proximate cause of what occurred and i would respectfully suggest that when it comes to breach and when it comes to proximate cause in a case of a statutorily described a duty then it is better policy to allow the try to reflect away there or at least allow the trial about a paddleboat they seem like he's an octopus things we see at the state fair with little kids paddling around but they're not like most rather craft they have plugs that are to be removed in the winter time like most watercraft they require instruction and like answer is potentially there are some things that are not hazardous but with those feet i would say that under proper supervision using a beachside type situation with sand beach where there's no waves would be generally this is at this point we're talking about what the statute that's it mais of the statute clearly says that any contact with water can be hazardous and then parent publicly points out as long as it's not a trivial or menial type passer that's obviously to me a question of fact and that's part of the reason why the dismissal at this stage of the proceedings was premature in our opinion and should not be sustained by this court and i would also add this  the notion of will for want in this particular case as has been pled by the plaintiffs and also in the pleadings made by the y m c a is not limited to the notion that it's just going to one ten and trying a willful one standard for either one zero nine or one ten it goes to control and supervision this is why this case is a little unique in both by the way we all know that there's only been two cases th mccurry and frank right ok so to directly interpret on that talk about the statute in that context neither of those cases involve a situation where the public entity was a less see here the public entity the north won public school not federal north lawndale public school excuse me and the board of education contracted with the y m c a to take over the camp for administrative bodies the sign to regulate minister that that like right but here follow follow me through here because the key the devil is in the details is the word takeover alright nearly didn't contract to take over the lead but they did have the the reverse he's me they did a contract to take over the camp and so the statute recognizes that it's not just ownership it's control supervision maintenance these of the rights we had right and whatever we had we had the right to use the river we had the right to enjoy the river and we had the right so you had to use the river because those who were in charge of administering the river permitted you to use its not because of the wind ca or the school permitted you to use it because you could have been overruled by the administrative agency that actually rates that waterway presumably they could've said who can and can't use this over to the right to use the river applies to the individuals not to the body of water itself which well that's an unequivocal right and frank application of one ten if you look at the framed case they repeat on three or four different occasions there was no contract the firefighters were not told by the club what to are there was no written agreement they paid no fee all right so they're clearly distinguishing between the crab and the firefighters here the school took over whatever we had but did you  problematic and i understand that but the point is if you didn't have it how does the public school the school have the obligation to keep kids from going into the river and accessing and using the really throw you  control over the people using well this goes to exactly my point when i was talking about the the poor and i called frank frank francine brain brainy saying ever there's factors that they considered and i don't think it was and i think they they made that a part of their finding that because the fire department was not in any way given the control of access to the right to deny access that they could have exercised control over the over the way involved there but the question ah that's where this not this little glitch in language your brain interest and i think it's also important to distinguish between access to the river and using it and controlling it in that sense and supervising it in that sense and the overall supervision of the waterways can you see the y m c a when they send out their field trip scratching their head if the argument that you're making at this point i mean the for what would be negligence of keeping boats available without clogs in the pontoons well it's different from that it's that the school has the right to use an access the river they have the right to do that and they were told not to do that they were told to deny their first disciplines access to the waterway which is completely distinguishable from completely distinguishable because their fire department did not have the right here it's in our contract with the state and it's attached immaterial as you have i think it's item number seven enjoy the river from the land only do not enter the river it's dangerous so  speak and certainly build a dock out into the river they can certainly launch belphegor back to the river can they build it back without getting some permit from somebody it depends on the on the river in the waterway and how it's regulated but different tolerated by those who actually manage control operate supervise and maintain the well this is why the input application of the statute in this case using one ten is not does not make as much sense as using one or not and that's exactly why because one ten if it's applied that way negates any liability under any circumstances where is it if the bag the example that was an enormous difference between a pool and the water i mean i don't think that any of us would debate that point that the legislature in its wisdom has chosen to exams at least the way i read it rights or the right to supervise or me or manage or control the land groups of the statute you really don't have the same element of control over the circumstances of the waterway or pond or lake or river that you would if it was entirely yours so you have to do as you wish just assess and i view that as language that pertains to the greater aspects of controlling a river for example doing it upstream for example closing it to fishing or closing it to boating some of the big arguments we have in this country about the rights to water when i don't general does any of these things without the serially having a right hand or to close it off to navigation because otherwise ever wise but it is in this was the example that mr the teacher takes the swim team down to lake michigan in december and trail to stop clearly that's not the kind of activity that is meant to be immune it's precisely the kind of activity that's meant to be viewed it's  which is why we think that its session should apply here as well if you don't cry want to not and lastly me just address the battle for causation we don't concede in any way that the plugs cause this accident all right but there were these bands are like canoes they're manufactured with the styrofoam in them so that they cannot be something and like a canoe when it took us over if you stay with it you don't ground you can float on that boat cost element to the extent that it has to be a foreseeable phenomenon because it was not foreseeable was that these young men would jump into the river now taken these barrels out realized that they were taking on water that still clearly and only one young man out of may decided to abandon ship and jump into the water at which failed to other are to imagine a hypothetical to go straight to the application of section three and i don't think that i could do any better than the actual facts of this case based simply on the facts as alleged in the underlying consolidated point there's no question that the fox river river is no question that the injuries occurred in or about that waterway and there's absolutely no question that my clients have no more relationship to the fox river than they do to the nile or the amazon or the indus they don't have anything to do with the fox river ever relationship with students but that doesn't translate into a relationship with the river protection i'm not sure which one it was obviously meant it justice read use the phrase if we could conjure up different groupings special classifications that might be susceptible to a and equal protection or special legislation argument then we would look at how this statute benefits local public entities which are engaged in a maritime business like in that case the illinois international court district as opposed to some you know school in peoria or something that's you know you'd have to drive to get the water and you simply said that's not enough of a distinction to raise an equal protection problem and ironically it's the plaintiffs and the y m c a in this case are me not good there are going to you should treat different local public entities differently and that would seem to feed right into the  it these are activities that would be just by local public entity and it's obviously encouraging local public entities like park districts to allow these sort of exactly the same situation the boarding incident there can be absolutely no question under any inference of the court might want to draw from the claim that this is something we had nothing to do with organizing well sure thing to do with the arrangement made by the school board here by the school by the local school contribute to help organize this conference and designate students conducts drone attacks from three thousand miles away that you're still conducting we're not conducting any kind of boat again it's me but my but that's not what what this what three ten  activity conducted by the school board which created a substantial risk depending not on whether it's conducting the activity but the question is i think conducting an activity that creates a that was put on by the local against the i could certainly see you know where you would want to play three one zero nine bet in this case even if everyone a nine applies i think three one ten is clearly the more specific because this is the nonproprietary maritime risk it doesn't include anything new piece dry land risk rodeo writing or paint lighting or any of these other things that three one of nine applies to it simply applies to the maritime rest and then except out those maritime rest which are proprietary to the local public and like a laguna in a local park which there are other sections of for them which w actions be sued well but i think if you look further down and you look at this list of specific examples they're giving in three one a night these are all activity organized activities these are you know this isn't just something that happens this is something that a local public entity would put on or that someone who came out of their land would would put on the yet with respect to the this business about releasing  to the school defendants let's not pledge that was actually raised for the first time in a motion to reconsider after the judgment is entered and so i don't think that's even preserved and by the way i mean you can also look at the contract and it's just it's also it's obviously a license and not of that use we're only using two buildings of this very large camp and anyway even if we've got all the camp up on one let's say the injuries happened in the river the fox river is a navigable river  at it made the distinction between regulating the people versus regulating the actual river but then went on to say there's also no regulation people well said that was still something  owner over of the firefighter who drowned i think i think here i think in that case the key was the ownership of the fire departments the local public entities control supervise maintain so on with respect to the leg there's absolutely no question we parted from the very hierarchical outfits of the fire chief tells you to get out of the lake you get out of place so there's no question that those local public entities supervised the participants ok what that mattered to you obviously didn't matter to frank and it doesn't well it's not that obvious because rain was felt all the cover the fact that they did not better argument than they have here because there was direct eyes on supervision they were right there at the lake telling everyone who to partner up with and how to dive and you know when to get out of water and some sort i mean that's superficial if that was enough to trigger the term fact that the trampoline is actually a part of three want to nine i mean paddleboarding is not part of three want to not nor is voting generally i mean if it was like i said three one ten would mean months so three three one ten and it's not a water contact activity as you know it's not a more contact a committee because it's not anticipated it's not intended as a part of the activity i mean obviously in a lawsuit just because somebody drowned you know but  the fact that there is a partition between me the skin right of the user and the wetness of the water in this is that what's involved a water contact that or call or is the fact that to apply to a situation where you might you know it bacteria or charedi or something because you're in the water you need to wear a wetsuit i mean are we going to have some regulations and some part districts where they allow growing but they prohibit wat decision from the only solution control board and we cited those and explained why you know this only applies to immersion kind of activities there's a there's a federal statute that applies to water contact through these  i think the best case is the nap case where the shop teacher told all the kids to stay in class and let two kids out to go park well that's one jump that got one snuck off it's a sneaking elf thing i mean that's fervently  them to do our duty as i said before is in loco parentis it would be an extraordinary parent even if they knew that their teenager was prone to sneak out or had snuck out before to stay up all night and watch them that would be extraordinar think which is you know basically we should've interrogated the kids and found out from them that they were sneaking out again it's a common situation parents and teenagers and i think that's that's really beyond was well when one is one ratio is alleged violation of it is alleged you find it paragraph twenty two of the consolidated plain complaint in other places the fact is there was one adult that slept at the ward house and it should have been so that's the bottom line and then just factual and so i was one of the things that came let me think that you could let me look it you each and say i know we've you've been quite patient and quite generous with your time you may have other questions i know we've aired out quite a few i'm certainly happy to address anything else and if not i would just conclude i think where i am by saying that in my opinion the result here should turn really on itself is not a political first of all the ground ski court ruled that there was no willful wanton misconduct as a matter of walk that is not it should not be the ruling here secondly with respect to his infect tromp that there should be a reversal of the order of the dismissal for that reason and the logic of the illinois supreme court when it used to to one hundred nine to trump want to wait back in the days when want