ILLINOIS OFFICIAL REPORTS

Appellate Court

Choice v. YMCA of McHenry County, 2012 IL App (1st) 102877

Appellate Court

Caption

VIRGINIA CHOICE, as Special Administrator of the Estate of Melvin

Choice III, Deceased; LEONARD AVANT, as Special Administrator of

the Estate of Jimmy Avant, Deceased; and BRIGETTE JONES, as

Special Administrator of the Estate of Adrian Jones, Deceased, PlaintiffsAppellants, v. YMCA of McHENRY COUNTY, an Illinois Corporation,

Defendant-Appellant (North Lawndale CollegePreparatoryCharterHigh

School, an Illinois Corporation, and the Board of Education of the City

of Chicago, Defendants-Appellees).

 District & No. First District, Fifth Division

Docket Nos. 1-10-2877, 1-10-2878, 1-10-2897 cons.

Filed August 17, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Section 310 of the Tort Immunity Act immunized defendant school and

board of education from liability for the drowning deaths of three students

who sneaked away from a leadership camp for a late-night excursion on

paddleboats, since plaintiffs failed to establish that section 310 violated

the equal protection, special legislation or certain remedyclause and there

was a strong argument that plaintiffs failed to allege willful and wanton

misconduct by defendants.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, Nos. 08-L-12929, 09-L245, 09-L-8513 cons.; the Hon. Clare E. McWilliams, Judge, presiding.
Judgment Affirmed.

Counsel on

Appeal

Timothy J. Young, Leena Soni, and Michael L. Shacter, all of Lewis

Brisbois Bisgaard & Smith, LLP, of Chicago, for appellant YMCA of

McHenry County.

Thomas E. Pakenas, of Dale & Pakenas, of Chicago, for appellant

Virginia Choice.

David E. Rapoport and Joshua L. Weisberg, both of Rapoport Law

Offices, P.C., and Matthew Willens, of Willens Law Offices, P.C., both

of Chicago, for appellant Leonard Avant.

Melvin Brooks, ofCochran, Cherry, Givens, Smith & Montgomery, LLC,

of Chicago, for appellant Brigette Jones.

Joseph P. Postel, David S. Osborne, and James L. Wideikis, all of

Reppaport & Postel, LLC, and Lauren K. Meacham and Patrick J. Norris,

both of Meachum & Starck, both of Chicago, for appellees.

Panel PRESIDING JUSTICE EPSTEIN delivered the judgment of the court,

with opinion.

Justices McBride and Quinn concurred in the judgment and opinion.*

OPINION

¶ 1 This case arises from the drowning deaths of three high school students on the Fox River.

In November 2008, students from North Lawndale College PreparatoryCharter High School

(Lawndale High School) were attending a one-week school ethical leadership program at

Camp Algonquin, a camp operated and maintained by the YMCA of McHenry County

(YMCA). In the early morning hours of November 14, 2008, 16 students surreptitiously left

the dormitory to ride paddleboats on the nearby Fox River. As a result of this late-night

boating excursion, three of the students, 17-year-old Melvin Choice III, Jimmy Avant, and

*Justice Joseph Gordon originally authored this opinion. Following Justice Gordon’s

passing, Presiding Justice Epstein adopted the opinion. Justice Quinn has reviewed the briefs and

oral argument recordings.

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Adrian Jones, drowned. 1

¶ 2 The estates of the three students who drowned (collectively, the Choice plaintiffs)

brought a wrongful death suit against Lawndale High School, the Board of Education of the

City of Chicago (Board) (collectively referred to as the school defendants), YMCA, and

Visionquest Association, Inc., which allegedlydesigned and conducted the leadership retreat.

In addition, one of the surviving students who witnessed the drownings, Marshaun Williams,

brought suit against the school defendants, YMCA, and Visionquest Association for

negligent infliction of emotional distress. The Choice plaintiffs’ suit and the Williams suit

were subsequently consolidated into the instant action.

¶ 3 The school defendants filed combined motions to dismiss the counts pertaining to them

pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-

619 (West 2008)), claiming that they were fully immunized from liability by section 3-110

of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS

10/1-101 et seq. (West 2008)) (Tort Immunity Act), which provides, “Neither a local public

entity nor a public employee is liable for any injury occurring on, in, or adjacent to any

waterway, lake, pond, river or stream not owned, supervised, maintained, operated, managed

or controlled by the local public entity.” 745 ILCS 10/3-110 (West 2008). Plaintiffs, on the

other hand, contended that the applicable immunity provision was section 3-109 of the Tort

Immunity Act, which provides qualified immunity for local public entities against

participants in hazardous recreational activities, but, unlike section 3-110, contains an

exception for willful and wanton misconduct. These statutes and their interplay shall be fully

discussed in the Analysis section of this decision.

¶ 4 The trial court found that section 3-110 of the Tort Immunity Act fully immunized the

school defendants from liability. Accordingly, it granted the school defendants’ motions to

dismiss the counts against them, leaving the action standing against the remaining

defendants. Both the Choice plaintiffs and YMCA filed appeals pursuant to Illinois Supreme

Court Rule 304(a) (eff. Feb. 26, 2010), which have been consolidated into the appeal at

hand. (Visionquest Association did not appeal from the judgment at issue herein and, 2

according to the brief of the school defendants, has been dismissed without prejudice prior

to the issuance of this opinion.) For the reasons that follow, we affirm.

¶ 5 I. BACKGROUND

¶ 6 The Choice plaintiffs’ first consolidated complaint at law alleges the following. On

October 15, 2008, YMCA’s Camp Algonquin accepted reservations for 31 students from

Lawndale High School to attend a one-week ethical leadership program to be held at Camp

Algonquin from November 7, 2008, to November 14, 2008. According to the complaint, this

program was staffed by employees of each of the defendants, who shared responsibility for

the safety and security of the students.

The ages of Avant and Jones are not mentioned in the record. 1

Plaintiff Williams does not appeal.

2

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¶ 7 Camp Algonquin is located along the western shore of the Fox River. According to the

complaint, on October 8, 2008, approximately a month before the program began, Camp

Algonquin staff placed seven paddleboats near the shore of the Fox River without chaining

or otherwise securing the paddleboats to prevent them from being used without permission.

The complaint states that these seven paddleboats were stored without their drain plugs

attached. Without drain plugs, the paddleboats would slowly fill with water during ordinary

use and become increasingly unstable in a process that would be gradual because of the small

size of the drain holes and the fact that the boats contained floatation material. The complaint

alleges that the paddleboats remained without drain plugs until the incident that occasioned

this lawsuit.

¶ 8 The ethical leadership program took place from November 7, 2008, to November 14,

2008. During that week, the 31 Lawndale High School students were assigned sleeping

accommodations in a building known as Ward House, with none of the staff being assigned

to staywith them in the same building. This allegedly violated Camp Algonquin’s chaperone

rule, which required an 8:1 ratio of students to staff, as well as the Board’s chaperone rule,

which required a 6:1 ratio of students to staff.

¶ 9 According to the complaint, in the early morning hours of November 14, 2008, during

their final night at Camp Algonquin, sixteen of the students sneaked out of Ward House at

night, helped themselves to theYMCApaddleboats, apparentlywithout permission, and rode

them on the Fox River. The complaint alleges that the boat containing one of the plaintiffs,

Choice, began to fill with water due to the missing drain plugs, and, as a result, Choice “was

caused to enterthe water.” The other two plaintiffs, Avant and Jones, allegedly dove into the

water to save Choice, resulting in the drowning of all three of them.

¶ 10 The complaint further alleges that four days prior to this occurrence, on the night of

November 10, 2008, four of the students sneaked out of the Ward House at approximately

11 p.m. They took one of the paddleboats and rode it briefly in the Fox River, not realizing

that the drain plugs were missing or that the boat was taking on water. When they finished,

they pulled the paddleboat partially onto the west shore of the Fox River, where they left it

for the night before returning to Ward House. By the next morning, the paddleboat had

gotten loose and floated across to the opposite shore of the river, where it allegedly remained

in plain view until November 14, 2008. The complaint alleges that most, if not all, of the

students knew about the paddleboat on the far shore of the river. The complaint further

alleges that staff of each of the defendants should have known that there was a paddleboat

on the far shore and why it was there.

¶ 11 The Choice plaintiffs filed a complaint in 25 counts seeking damages for wrongful death

and for conscious pain and suffering. Counts Ithrough VI assert claims of negligence against

YMCA, alleging that YMCA negligently failed to reinstall the drain plugs on the

paddleboats, negligently placed the paddleboats without drain plugs in an area that camp

employees knew or should have known would be frequented by children, and negligently

failed to warn of the condition of the paddleboats. Plaintiffs further allege that YMCA

negligently allowed 31 high school students, including the three Choice plaintiffs, to stay at

Ward House without an appropriate amount of chaperones.

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¶ 12 Counts VII through XII allege willful and wanton conduct by YMCA, predicated upon

the same allegations of negligence made in counts I through VI.

¶ 13 Counts XIII through XVIII assert claims for “Willful and Wanton Conduct” against the

school defendants. In these counts, plaintiffs allege that the school defendants had a duty to

properly supervise and maintain discipline of the high school students attending the ethical

leadership program. Plaintiffs further allege that, in violation of this duty, the school

defendants:

“a. Willfully, wantonly and in violation of Board of Education of the City of Chicago

rules, allowed 31 high school students including Jimmy Avant, Melvin Choice III and

Adrian Jones to stay in The Ward House dorm at YMCA Camp Algonquin without an

appropriate number of qualified chaperones staying with them from November 7, 2008

to November 14, 2008;

b. Willfully and wantonly failed to adequately supervise the high school students

attending the ethical leadership program at YMCA Camp Algonquin from November 7,

2008 to November 14, 2008;

c. Willfully and wantonly failed to adequately discipline the high school students

attending the ethical leadership program at YMCA Camp Algonquin from November 7,

2008 to November 14, 2008.”

Counts XIX through XXIV assert claims of negligence against Visionquest Association. 3

However, since Visionquest Association is not a party to the instant appeal and was

subsequently dismissed from the case, we need not discuss these counts.

¶ 14 Finally, in count XXV, the Choice plaintiffs seek a declaratoryjudgment that, with regard

to the instant case, section 3-110 of the Tort Immunity Act, which provides absolute

immunity to local public entities, is superseded in its application by section 3-109, which,

unlike section 3-110, does not shield local public entities from liability for willful and

wanton conduct. Alternately, they seek a declaration that section 3-110 is unconstitutional.

¶ 15 As noted, plaintiff Williams, one of the surviving students, filed a separate complaint

seeking relief for the emotional distress that he suffered as a result of the November 14,

2008, incident. His first amended complaint, which frames the issues with respect to him,

largelytracks the allegations of the Choice plaintiffs’ complaint and seeks reliefin 10 counts.

Counts I and II, respectively, seek damages for unspecified negligence and damages for

negligent infliction of emotional distress against Visionquest Association. Counts III, IV, and

V, respectively, assert negligence, negligent infliction of emotional distress, and willful and

wanton conduct against the Board. In count III, the negligence count, Williams contends that

the Board negligently

“a. Failed to adequately secure the paddleboats;

b. Failed to make safe the use of the paddleboats;

Counts XXIIthrough XXV appearto have been misnumbered in the complaint.To facilitate 3

our referencing them in this decision, we have corrected this problem by ordinally numbering each

of these counts in their proper sequence.

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c. Failed to supply an adequate number of chaperones;

d. Failed to require that co-defendants supply an adequate number of chaperones;

e. Failed to adequately train its employees in proper supervision; and

f. Failed to adequately supervise MARSHAUN WILLIAMS and other students.”

Williams repeats these allegations in count IV and again in count V, except that in count V,

he states that the Board “Knowingly and with conscious disregard” failed to perform each

action.

¶ 16 Counts VI, VII, and VIII of Williams’ complaint, respectively, assert negligence,

negligent infliction of emotional distress, and willful and wanton conduct against Lawndale

High School, and they echo the allegations of his claims against the Board. Finally, counts

IX and X of Williams’ complaint, respectively, seek damages for unspecified negligence and

damages for negligent infliction of emotional distress against YMCA, and they echo the

allegations of the parallel claims against the Board.

¶ 17 The school defendants filed combined motions to dismiss the counts pertaining to them

pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure, claiming that theywere

immunized from liability by section 3-110 of the Tort Immunity Act. In the alternative, they

contended that, even if such immunity did not apply, the plaintiffs had failed to state a cause

of action for willful and wanton misconduct, and they had also failed to allege facts that

would establish proximate cause.

¶ 18 The trial court granted the school defendants’ motions to dismiss under section 2-619 of

the Code of Civil Procedure, finding that section 3-110 of the Tort Immunity Act applied and

provided them with unqualified immunity under the facts of the case. In doing so, the court

rejected the plaintiffs’ argument that the school defendants “supervised” the Fox River

within the meaning of section 3-110 so as to be excluded from the immunity provisions of

section 3-110. Instead, it found that the Fox River was supervised and controlled by the Fox

WaterwayAgencypursuant to the Fox WaterwayAgencyAct (615 ILCS 90/1.1 et seq. (West

1998)). The trial court also rejected plaintiffs’ challenge to the constitutionality of section

3-110 of the Tort Immunity Act. Thus, the trial court entered orders dismissing all claims

against the school defendants.

¶ 19 The Choice plaintiffs and YMCA now appeal. Although plaintiff Williams did not join

in this appeal, the dismissal of the school defendants from his action is included in the appeal

brought by the YMCA.

¶ 20 II. ANALYSIS

¶ 21 The first issue under contention by the parties is the scope of the school defendants’

immunity from suit under the Tort Immunity Act. In this regard, appellants argue that, under

the facts of this case, the applicable section of the Tort Immunity Act is section 3-109, which

would leave the school defendants open to liability for willful and wanton misconduct,

instead of section 3-110, which provides blanket immunity for those defendants that fall

within its protection. Alternatively, appellants argue that we should interpret section 3-110

as containing an immunity exception for willful and wanton conduct, notwithstanding the

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fact that no such exception is contained in the text of that section. Lastly, appellants contend

that, in the event that we find that section 3-110 is the applicable immunity statute and that

the school defendants qualify for immunity under that section, such an interpretation of

section 3-110 would render it unconstitutional as applied.

¶ 22 In addition to contesting each of appellants’ contentions, the school defendants further

contend that, even if we were to agree with appellants that section 3-109 is the applicable

immunity statute, such that the school defendants would be subject to liability for willful and

wanton misconduct, the school defendants are still entitled to be dismissed from this action

for two reasons. First, the school defendants argue that plaintiffs failed to sufficiently allege

willful and wanton misconduct in their complaint. Second, they argue that plaintiffs have

failed to allege proximate cause as a matter of law.

¶ 23 A. Determining the Applicable Immunity Statute

¶ 24 We begin by considering whether section 3-109 or section 3-110 governs the scope of

the school defendants’ immunity in the instant case. We note at the outset that none of the

parties urges the application of any other section of the Tort Immunity Act.

¶ 25 Section 3-110, which the trial court applied in the instant case, provides: “Neither a local

public entity nor a public employee is liable for any injury occurring on, in, or adjacent to any

waterway, lake, pond, river or stream not owned, supervised, maintained, operated, managed

or controlled by the local public entity.” 745 ILCS 10/3-110 (West 2008). By contrast,

section 3-109, which appellants urge is the correct statute to apply in the instant case,

provides limited immunity for local public entities for damages sustained by plaintiffs

participating in “hazardous recreational activities”:

“(a) Neither a local public entity nor a public employee is liable to any person who

participates in a hazardous recreational activity, including any person who assists the

participant, or to any spectator who knew or reasonably should have known that the

hazardous recreational activity created a substantial risk of injury to himself or herself

and was voluntarily in the place of risk, or having the ability to do so failed to leave, for

any damage or injury to property or persons arising out of that hazardous recreational

activity.

[4]

(b) As used in this Section, ‘hazardous recreational activity’ means a recreational

activity conducted on property of a local public entity which creates a substantial (as

distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a

spectator.

‘Hazardous recreational activity’ also means:

(1) Water contact activities, except diving, in places where or at a time when

lifeguards are not provided and reasonable warning thereof has been given or the

injured party should reasonably have known that there was no lifeguard provided at

Appellants do not challenge the school defendants’ status as local public entities for 4

purposes of the Tort Immunity Act.

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the time.

* * *

(c) Notwithstanding the provisions of subsection (a), this Section does not limit

liability which would otherwise exist for any of the following:

***

(2) An act of willful and wanton conduct by a public entity or a public employee

which is a proximate cause of the injury.” 745 ILCS 10/3-109 (West 2008).

¶ 26 The school defendants contend that section 3-109, by its terms, does not apply to the

instant case, because paddleboating does not constitute a “hazardous recreational activity”

and because the paddleboating incident was not “conducted on property of a local public

entity” as required under section 3-109(b). Appellants, on the other hand, contend that

section 3-110 does not apply to the instant case because its protection only extends to

riparian entities, located adjacent to a body of water, and not to landlocked entities.

Additionally, appellants argue that even if the provisions of section 3-110 applied under

these facts, the school defendants would not be immune from suit, since section 3-110 only

confers immunity where the body of water at issue is “not owned, supervised, maintained,

operated, managed or controlled by the local public entity.” 745 ILCS 10/3-110 (West 2008).

In that respect, appellants contend that the school defendants supervise the Fox River within

the meaning of that provision.

¶ 27 We consider these contentions in turn. In doing so, we are mindful that in all statutory

construction, our primary task is to ascertain and effectuate the intent of the legislature.

People v. Pullen, 192 Ill. 2d 36, 42 (2000). In doing so, we must assume that the legislature

did not intend to create an absurd or unjust result. Id. However, we are also mindful that the

language of the statute is the surest and most reliable indicator of legislative intent, and

where that language is clear and unambiguous, we must apply that language without further

aids of statutory construction. People v. Zaremba, 158 Ill. 2d 36, 40 (1994); see Village of

Carpentersville v. Pollution Control Board, 135 Ill. 2d 463, 469-70 (1990) (declining to

consider legislative history where language of statute was unambiguous).

¶ 28 1. Whether Section 3-109 Applies

¶ 29 We begin by considering the applicability of section 3-109 to the instant case. The school

defendants’ first contention in this regard is that paddleboating does not constitute a

“hazardous recreational activity” because it neither “creates a substantial (as distinguished

from a minor, trivial, or insignificant) risk of injury to a participant or a spectator” (745 ILCS

10/3-109(b) (West 2008)) nor qualifies as a “[w]ater contact activit[y]” under subsection

(b)(1) (745 ILCS 10/3-109(b)(1) (West 2008)). Appellants argue that paddleboating is, in

fact, a water contact activity, citing Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501,

514 (1990), overruled in part on other grounds by McCuen v. Peoria Park District, 163 Ill.

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2d 125 (1994) , where our supreme court stated, without qualification, that “ ‘Water contact

5

activities’ include swimming, boating, and water skiing.” (Emphasis added.)

¶ 30 The school defendants nevertheless argue that “[w]ater contact activities” should only

encompass activities in which it is foreseeable that the participant will become entirely

immersed in water and therefore vulnerable to waterborne pathogens. They further argue that

paddleboating is not such an activity, since “the user sits above the waterline and immersion

is not contemplated or reasonably foreseeable.” However, we note that a similar argument

could be made with respect to the majority of boating activities, in that the participant is

intended to remain on the boat and there is little, if any, contact with the water, let alone full

bodilyimmersion, yet our supreme court in Burdinie nevertheless found boating to constitute

a water contact activity within the meaning of section 3-109. Although the Burdinie court’s

statement with regard to boating was dictum, in that Burdinie was a case involving

swimming rather than boating, we nevertheless must be guided by it. Cates v. Cates, 156 Ill.

2d 76, 80 (1993) (“[e]ven obiter dictum of a court of last resort can be tantamount to a

decision and therefore binding in the absence of a contrary decision of that court”).

¶ 31 The school defendants next contend that this section does not apply to the instant case

because the paddleboating excursion was not “conducted on propertyof a local public entity”

as stated in section 3-109(b), which defines hazardous recreational activities. Appellants, on

the other hand, contend that since subsection (1) is prefaced by the word “also,” the

definition of hazardousrecreational activities in that subsection is alternative to the definition

contained in the main section of section 3-109(b) and, as such, does not require the activity

to have been conducted on public property, as required under the portion of section 3-109(b)

immediately preceding subsection (1).

¶ 32 However, the text of section 3-109(b) does not require that we construe the word “also”

as providing an alternative to every requirement contained in the opening paragraph of

section 3-109(b), including the requirement that the activity at issue be conducted on

property of a local public entity. Rather, more convincingly, the term “also” would simply

expand the type of activities which are considered to be hazardous without setting aside the

overall requirement that all such activities would have to be conducted on property of a local

public entity in order to trigger the immunity granted by section 3-109. This interpretation

would be the more cogent one in determining the intent of the legislature. To adopt the

appellants’ interpretation that the activities listed after the word “also” would not be subject

to the requirement that they be conducted on property of a local public entity, as stated in the

opening paragraph ofsection 3-109(b), would appear to be whollyarbitrary. Appellants make

no attempt to explain why the legislature would choose to require an activity described

generically as one that “creates a substantial (as distinguished from a minor, trivial, or

insignificant) risk of injury to a participant or a spectator” to be conducted on property of a

Burdinie dealt with several immunity sections of the Tort Immunity Act, including both

5

section 3-109 and section 3-106, the latter of which is not at issue in the present case. Burdinie, 139

Ill. 2d at 513-14. In McCuen, a section 3-106 case, our supreme court overruled Burdinie with

respect to its section 3-106 analysis only. McCuen, 163 Ill. 2d at 130. Thus, McCuen does not

purport to disturb the viability of Burdinie’s section 3-109 analysis as applied to the present case.

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local public entity, while imposing no such parallel requirement for the specifically

enumerated hazardous recreational activities listed in the remainder of section 3-109(b). Nor

do we see any rationale for drawing such a distinction. See Pullen, 192 Ill. 2d at 42 (in

interpreting a statute, we must assume that the legislature did not intend to create an absurd

result). In addition, appellants do not provide any cases that have followed their

interpretation of the statute in this regard.

¶ 33 It is of interest that in the case of Steinbach v. CSX Transportation, Inc., 393 Ill. App. 3d

490 (2009), which involved a claim of immunity under section 3-109, the court did not even

contemplate any such distinction as appellants are now urging. In that case, the father of a

deceased dirt biker brought a wrongful death action against the city to recover for the dirt

biker’s death when he struck a steel cable that was stretched across a gravel roadway. Id. at

491. The Steinbach court rejected the city’s claim that it was immune from liability under

section 3-109, finding that the city did not have a possessory interest in the land at issue and

the incident was therefore not “conducted on property of a local public entity” as required

under section 3-109(b) (745 ILCS 10/3-109(b) (West 2008)). Steinbach, 393 Ill. App. 3d at

520. In doing so, the court did not discuss whether the decedent’s dirt biking “create[d] a

substantial *** risk of injury to a participant or a spectator,” as described in the opening

paragraph of section 3-109(b) (745 ILCS 10/3-109(b) (West 2008)), or whether it fell under

one of the enumerated categories of activities following the word “also.” Rather, the court

appeared to globally apply the requirement of being “conducted on property of a local public

entity” regardless of any such distinction. (Internal quotation marks omitted.) Steinbach, 393

Ill. App. 3d at 520; see 745 ILCS 10/3-109(b)(3) (West 2008) (enumerating “off-road

motorcycling” as a per se hazardous recreational activity).

¶ 34 Thus, we reject appellants’ contention that the immunity conferred by section 3-109

would apply in the instant case, even where the activity at issue was not conducted on

property of a local public entity, simply because that activity is an enumerated activity listed

under subsection (1) and is preceded by the word “also.”

¶ 35 We note that appellants do not challenge the trial court’s conclusion that the Fox River

was not the property of a local public entity beyond making a cursory one-sentence

statement, without any elaboration or further discussion, that the trial court failed to provide

any support or explanation for such a conclusion. Conversely, appellants do not present any

authority or citation to the record that would support a finding that the trial court’s

conclusion was in error, nor do theyattempt to explain what ramifications would follow from

such conclusion on the part of the trial court. Accordingly, appellants have waived this point.

Ill. S. Ct. R. 314(h)(7) (eff. July 1, 2008) (appellants’ brief shall contain citation of authority

and the pages of the record relied upon).

¶ 36 In any event, even if the activities enumerated under section 3-109(b) would not have

required that they occur on the property of the school defendants, or even if the property at

issue met the requirement of being property of a local public entity, the paddleboat excursion

that led to the Choice plaintiffs’ deaths was not “conducted” by the school defendants within

the meaning of section 3-109(b), since it was not in any way done at the direction of the

school defendants. See Grandalski v. Lyons Township High School District 204, 305 Ill.

App. 3d 1, 11-12 (1999). In Grandalski, the court determined that a student who performed

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a gymnastics maneuver known as a “flip-flop” during a gymnastics class was not engaging

in activity “conducted” by the local public entity within the meaning of section 3-109,

because the maneuver was not performed at the teacher’s direction but was spontaneously

performed by the student. Id. Likewise, in the present case, the students spontaneously

sneaked out of Ward House in the early hours of November 14, 2008, and the records

provide no basis for the conclusion that this surreptitious activity was sanctioned, let alone

conducted, by the school defendants.

¶ 37 Accordingly, we find that, because the paddleboat incident was not “conducted on

property of a local public entity” as required under section 3-109(b), that section does not

apply to the instant case.

¶ 38 2. Whether Section 3-110 Protects Nonriparian Entities

¶ 39 We now turn to consider the applicability of section 3-110 to the instant case. Appellants

contend that section 3-110 only affords protection from suit to riparian public entities and 6

not to landlocked public entities. Both the Board and Lawndale High School are based in

Chicago. Thus, appellants argue, theyare both “landlocked” and ineligible to claim immunity

under section 3-110.

¶ 40 As noted, section 3-110 provides, in its entirety: “Neither a local public entity nor a

public employee is liable for any injury occurring on, in, or adjacent to any waterway, lake,

pond, river or stream not owned, supervised, maintained, operated, managed or controlled

by the local public entity.” 745 ILCS 10/3-110 (West 2008). The plain language of this

statute does not purport to draw anydistinction based on the geographic location of the entity

but, rather, on the location of the injury “on, in, or adjacent to” a waterway. On the face of

the statute, there is nothing that requires any proximity between the entity and the waterway

at issue. Rather than limiting its scope based upon the geographic relationship between the

entity and the waterway at issue, its application is premised upon the site of the occurrence

and the proprietary interest and degree of control maintained by the entity over that site.

Thus, contrary to appellants’ contention, it would appear that the legislature did not intend

to deny landlocked public entities the protection afforded by section 3-110. See Zaremba,

158 Ill. 2d at 40 (language of the statute is the surest and most reliable indicator of legislative

intent).

¶ 41 Appellants nevertheless contend that this court has previously restricted the application

of section 3-110 to municipalities located near waterways, citing McCoy v. Illinois

International Port District, 334 Ill. App. 3d 462, 471 (2002). We disagree. McCoy is

primarily focused on the issue of special legislation, which is invoked by applying the

immunity provisions under section 3-110 and with which we deal later on in considerable

detail. The required location of the public entity under section 3-110 is only incidental to the

discussion of that issue. To the extent that McCoy would purport to require the public entity

Black’s Law Dictionary defines “riparian” as “Of, relating to, or located on the bank of a 6

river or stream (or occasionally another body of water, such as a lake).” Black’s Law Dictionary

1328 (7th ed. 1999).

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itself to be located adjacent to a waterway, it would be unacceptable, since it would

contravene the plain language of that section. As discussed, the language of that section

addresses only the location of the injury and not the location of the protected entity.

Moreover, as shall be more fully discussed later on, that interpretation, even if otherwise

tenable under the plain language of the statute, which it is not, would be wholly unnecessary

to preserve its constitutionality.

¶ 42 The school defendants raise the alternative argument that, even if section 3-110 were only

to apply to riparian entities, they would still qualify for its protection, because they are not

landlocked but are located in a municipality which contains the Chicago River, Lake

Michigan, and “numerous other substantial waterways.” Although there is cogency to this

argument, we need not reach it in light of our holding that, under the plain language of the

statute, section 3-110 may be applied to local public entities that would otherwise incur

liability for accidents occurring on, in, or adjacent to bodies of water, without regard to their

status as landlocked or riparian.

¶ 43 3. Whether the School Defendants “Supervised” the Fox River

¶ 44 Appellants next contend that, even if section 3-110 is controlling, and even if the

immunity conferred by that section may be claimed by landlocked entities, the school

defendants are still not immune from suit under that section because of the supervisory

authority that appellants claim they exercised over the Fox River under the facts of this case.

As noted, section 3-110 provides: “Neither a local public entity nor a public employee is

liable for any injury occurring on, in, or adjacent to anywaterway, lake, pond, river or stream

not owned, supervised, maintained, operated, managed or controlled by the local public

entity.” (Emphasis added.) 745 ILCS 10/3-110 (West 2008). Thus, if the school defendants

did, in fact, supervise the Fox River, they would not be shielded from liability under this

section.

¶ 45 The school defendants contend that the Fox River is supervised not by them, but by the

Fox Waterway Agency, pursuant to the Fox Waterway Agency Act (615 ILCS 90/1 et seq.

(West 2008)). Indeed, section 7.1 of the Fox Waterway Agency Act provides:

“The Agency shall implement reasonable programs and adopt necessary and reasonable

ordinances and rules to improve and maintain the Chain O Lakes–Fox River recreational

waterway from the Wisconsin State line to the Algonquin Dam for the purposes of

boating *** and other recreational uses, *** and to create and administer a procedure for

establishing restricted areas.” 615 ILCS 90/7.1 (West 2008).

See generally County of Lake v. Fox Waterway Agency, 326 Ill. App. 3d 100, 105-06 (2001)

(citing this provision in discussing the powers and duties of the Fox Waterway Agency).

¶ 46 Appellants do not argue that the Fox Waterway Agency lacks supervisory authority over

the Fox River, but they argue that such supervisory authority need not be exclusive and, in

this case, the school defendants also had supervisory authority in that they had “the right and

obligation to deny their students access to the Fox River.” The school defendants, on the

other hand, argue that supervising students, even at a program located near a river, is not

tantamount to supervising the river itself. We agree with the school defendants.

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¶ 47 In this regard, we find Frayne v. Dacor Corp., 362 Ill. App. 3d 575 (2005), to be

instructive. When plaintiff’s decedent, a firefighter, drowned in a multi-agency scuba dive

training exercise, plaintiff brought suit against the fire protection districts involved in that

training exercise. Id. at 576. At issue was whether the districts were protected from liability

by section 3-110 of the Tort Immunity Act. Id. at 577. The Frayne plaintiff, like the plaintiffs

in the instant case, argued that the districts “supervised” the lake where the dive occurred

within the meaning of section 3-110. Id. at 580. The evidence showed that the districts

supervised the dive and, in fact, exercised control over nearly every aspect of the dive. Id.

at 578, 581. However, the districts did not own the lake. Id. at 577. Rather, the lake was

owned by a local club that agreed to permit the districts to use the lake for the dive training

exercise. Id.

¶ 48 Under these facts, the Frayne court agreed with the trial court’s conclusion that the

districts did not supervise the lake for purposes of section 3-110, since “although the

defendants may have controlled and supervised the dive, they did not control or supervise

the lake.” Id. at 581. The court explained:

“[T]here is no evidence suggesting that defendants could exert anyminimal control over

the lake. As the trial court noted, the firefighters were nothing more than guests. The

uncontradicted deposition of Ritz makes it clear that defendants had no right to grant or

deny anyone access to the lake or any portion of it.” Id.

In particular, the court cited testimony that, even while the dive was ongoing, the districts

lacked authority to prevent club members from using the lake. Id.

¶ 49 Thus, under Frayne, supervision requires a right to control access to the body of water

at issue, not merely derived from the public entity’s right to control the behavior of a small

group of individuals under its command, but a general right derived from a proprietary or

similar interest in the situs of the body of water itself. That is why the fire districts’ control

over the firefighters was insufficient to constitute supervision over the lake itself. Similarly,

in the present case, although plaintiffs have alleged that the school defendants had the right

and the obligation to supervise the students, plaintiffs have not alleged that the school

defendants had any general supervisory authority over the Fox River, such that they could

grant or deny access to third parties who might wish to use the river. Consequently, pursuant

to the standard articulated in Frayne, the school defendants did not supervise the Fox River

for purposes of section 3-110.

¶ 50 B. Whether Section 3-110 Contains an Exception

for Willful and Wanton Misconduct

¶ 51 Appellants next contend that, even if we find that section 3-110 is the applicable

immunity statute in the instant case, we should find that section to contain an immunity

exception for willful and wantonmisconduct, notwithstanding the fact that no such exception

for willful and wanton misconduct is stated in the text of that section. In support, appellants

raise two arguments. First, theyargue that, under Kobylanski v. Chicago Board of Education,

63 Ill. 2d 165 (1976), it is “well established” that educators may be held liable for willful and

wanton misconduct. Second, they argue that a 1998 amendment to section 3-108 of the Tort

Immunity Act, which provides partial immunity for conduct concerning supervision of an

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activity, demonstrates that “the legislature intended a willful and wanton standard to apply

universally to educators’ liability for supervising students.”

¶ 52 We disagree with appellants. Our supreme court has consistently rejected attempts to

inject willful and wanton immunity exceptions into statutes that, on their face, do not contain

them. Rather, our supreme court has stated that when the legislature intends to except willful

and wanton misconduct from the provisions of an immunity statute, it has

“ ‘ “unambiguously done so.” ’ ” DeSmet v. County of Rock Island, 219 Ill. 2d 497, 514

(2006) (quoting Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 491

(2001), quoting Barnett v. Zion Park District, 171 Ill. 2d 378, 391 (1996)); see also In re

Chicago Flood Litigation, 176 Ill. 2d 179, 196 (1997) (where the legislature omitted an

immunity exception for willful and wanton conduct from the plain language of section 2-201

of the Tort Immunity Act, the legislature must have intended to immunize liability for both

negligence and willful and wanton misconduct).

¶ 53 Thus, for instance, in DeSmet, 219 Ill. 2d at 514-15, the court held that because the plain

language of the immunity provision in section 4-102 of the Tort Immunity Act, dealing with

police protection services, contained no exception for willful and wanton conduct, the

legislature intended to immunize local public entities and public employees from liability for

both negligence and willful and wanton conduct. The court explained: “Section 4-102 of the

Act is comprehensive in the breadth of its reach ***. Moreover, section 4-102 contains no

exception for willful and wanton misconduct. We hold, given the facts of this case, that

section 4-102 immunizes defendants against both negligence and willful and wanton

misconduct.” Id. at 515. Similarly, our supreme court held in the 1996 case of Barnett, 171

Ill. 2d at 391-92, that since the plain language of section 3-108 did not, at that time, contain

an immunity exception for willful and wanton misconduct, the legislature must have

intended to grant immunity for such misconduct.

¶ 54 Nor does Kobylanski, 63 Ill. 2d at 173, require a contrary result. As noted above,

appellants cite that case for the proposition that educators may be held liable for willful and

wanton conduct. However, Kobylanski is inapposite, because it does not purport to define

the scope of immunity granted to local public entities under section 3-110 of the Tort

Immunity Act but, rather, deals with immunity under the School Code (now see 105 ILCS

5/1-1 (West 2008)). Kobylanski, 63 Ill. 2d at 170. Indeed, the Kobylanski court explicitly

finds that the Tort Immunity Act is inapplicable to the factual situations presented in that

case. Id. at 174. Accordingly, Kobylanski is not controlling with respect to the scope of

immunity provided by section 3-110.

¶ 55 Appellants next argue that the 1998 amendment to section 3-108 of the Tort Immunity

Act demonstrates that the legislature intended for a willful and wanton standard to apply in

all cases involving educators’ liability for supervising students. Prior to the 1998 amendment,

section 3-108, which confers immunity for injuries sustained during the course of an activity

on public property which a public entity undertook to supervise, granted absolute immunity

to public entities. See Barnett, 171 Ill. 2d at 391. In 1998, the legislature amended section

3-108 to contain an immunity exception for willful and wanton misconduct. 745 ILCS 10/3-

108 (West 2008). Although appellants do not contend in their appellate brief that section 3-

108 applies to the instant case, they assert that the immunity standard articulated in section

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3-108–namely, liability for willful and wanton conduct–should also be applied to cases

falling under section 3-110.

¶ 56 However, appellants point to no case where exclusion of willful and wanton conduct

from an immunity statute was implied from another statute rather than explicitly stated, and

they provide no basis upon which such an inference would be predicated. Moreover, the

tenuousness of this argument is explicitly addressed in Ries v. City of Chicago, 242 Ill. 2d

205 (2011), where our supreme court rejected a nearly identical argument. The Ries plaintiffs

brought suit against the city of Chicago after they were injured when a stolen police vehicle

struck their vehicle. Id. at 207. The Ries court initially had to determine the applicable

immunity statute under the Tort Immunity Act. Id. Plaintiffs urged the court to apply section

2-202 (745 ILCS 10/2-202 (West 2008)), which deals with the execution or enforcement of

law and which contains an immunity exception for willful and wanton misconduct, while the

city urged the court to apply section 4-106(b), which deals with injuries inflicted by escaping

prisoners and, on its face, contains no such immunity exception. Ries, 242 Ill. 2d at 220. The

Ries court found that section 4-106(b) applied under the facts of that case. Id. Plaintiffs then

argued that section 2-202’s immunity exception for willful and wanton misconduct should

be applied to narrow the scope of the city’s immunity under section 4-106(b). Id. at 221. Our

supreme court disagreed, citing DeSmet for its “unambiguous declaration of the principle that

exceptions for willful and wanton misconduct maynot be read into Tort Immunity provisions

that do not contain them.” Id. at 225 (citing DeSmet, 219 Ill. 2d at 514-15); see also Chicago

Flood Litigation, 176 Ill. 2d at 196 (where the legislature omits an exception for willful and

wanton misconduct from the text of an immunity statute, it must have intended to immunize

liability for such misconduct). Likewise, under Ries, DeSmet, and Chicago Flood Litigation,

we must reject appellants’ argument that section 3-108’s immunity exception for willful and

wanton misconduct should be applied to narrow the scope of the school defendants’

immunity under section 3-110, since the plain language of section 3-110 contains no such

exception.

¶ 57 C. Constitutionality of Section 3-110

¶ 58 Appellants finally contend that section 3-110 is unconstitutional as applied to the facts

of the instant case. In this regard, as shall be fully developed below, appellants argue that,

in the case at bar, application of section 3-110 violates the equal protection and special

legislation clauses of the Illinois Constitution, as well as the certain remedy clause of the

Illinois Constitution. Ill. Const. 1970, art. I, §§ 2, 12; art. IV, § 13.

¶ 59 In assessing these claims, we recognize that our supreme court has frequently emphasized

that all legislative enactments carry a strong presumption of constitutionality. Bernier v.

Burris, 113 Ill. 2d 219, 227 (1986). Accordingly, we must construe a statute in a manner

upholding its constitutionality if reasonably possible, and we must resolve any interpretative

doubt in favor of the statute’s validity. People v. Boeckmann, 238 Ill. 2d 1, 6-7 (2010);

Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 368 (1986). Moreover, the party raising

a constitutional challenge bears the burden of clearly establishing a constitutional violation.

Boeckmann, 238 Ill. 2d at 6-7; Barnes v. Chicago Housing Authority, 326 Ill. App. 3d 710,

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729 (2001) (stressing the “heavy burden” borne by a party challenging the constitutionality

of a statute).

¶ 60 We begin by considering appellants’ contention that application of section 3-110 in this

case violates the equal protection and special legislation clauses. Since the analysis under

both of these clauses is identical (Bilyk v. Chicago Transit Authority, 125 Ill. 2d 230, 236

(1988); People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc., 114 Ill. 2d 252, 259

(1986)), we consider these claims together. See Gavery v. County of Lake, 160 Ill. App. 3d

761, 765 (1987). Appellants urge that section 3-110 violates the equal protection and special

legislation clauses under the facts of the present case because it “denied recovery of damages

based on the fortuitous location of where the decedents’ deaths occurred.” They argue that

if, hypothetically, 16 high school students sneaked out of Ward House in the middle of the

night to ride paddleboats in a YMCA swimming pool, and, as a result, some of them

drowned in that swimming pool, those hypothetical plaintiffs would be in a superior position

to the plaintiffs in the instant case because the school defendants would not be able to claim

immunity under section 3-110. Appellants further argue that such distinction is entirely

arbitrary and therefore unconstitutional.

¶ 61 The equal protection clause provides that “No person shall be *** denied the equal

protection of the laws.” Ill. Const. 1970, art. I, § 2. Under this section, the state is required

to treat similarly situated persons in a similar manner. People v. Kimbrough, 163 Ill. 2d 231,

237 (1994). Although the State retains the power to classify persons and treat different

classes of persons differently, it may not exercise this power arbitrarily. Id.; People v. Reed,

148 Ill. 2d 1, 7 (1992). In particular, it may not arbitrarily differentiate between similarly

situated people by placing them in nominally different classes. Reed, 148 Ill. 2d at 7 (citing

Eisenstadt v. Baird, 405 U.S. 438, 447 (1972)).

¶ 62 This prohibition on arbitrary discrimination against persons or classes is supplemented

by the special legislation clause in our state constitution, which provides, “The General

Assembly shall pass no special or local law when a general law is or can be made applicable.

Whether a general law is or can be made applicable shall be a matter for judicial

determination.” Ill. Const. 1970, art. IV, § 13. Our supreme court has explained that this

clause “prohibits the General Assembly from conferring a special benefit or exclusive

privilege on a person or class to the exclusion of others similarly situated. In short, it

prohibits legislation which arbitrarily discriminates in favor of a select group.” Bilyk, 125 Ill.

2d at 236.

¶ 63 Where, as here, a statute does not affect a fundamental right or involve a suspect or

quasi-suspect classification, the determination as to whether it violates the equal protection

and special legislation clauses is conducted under the rational basis test, under which the

statutory classification will be upheld if it is rationally related to a legitimate State interest.

Best v. Taylor Machine Works, 179 Ill. 2d 367, 393 (1997); see People v. Shephard, 152 Ill.

2d 489, 500-01 (1992) (for purposes of equal protection analysis, a fundamental right is one

that is guaranteed by the federal or state constitution); People v. Hagen, 191 Ill. App. 3d 265,

267 (1989) (suspect classes include race, religion, and alienage). Our supreme court has

explained review under the rational basis test as follows:

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“A statute will be held unconstitutional as special legislation and as violative of the equal

protection guarantee only if it was enacted for reasons totally unrelated to the pursuit of

a legitimate State goal. [Citation.] The legislature has broad latitude and discretion in

drawing statutory classifications to benefit the general welfare, and the classifications it

makes are presumed to be valid. A legislative classification will be upheld if any set of

facts can be reasonably conceived which justify distinguishing the class to which the law

applies from the class to which the statute is inapplicable.” Bilyk, 125 Ill. 2d at 236

(citing People v. Coleman, 111 Ill. 2d 87 (1986)).

It is difficult for a party challenging the constitutionality of an immunity statute to meet this

burden, as shown by the numerous instances in which the Tort Immunity Act and similar

immunity statutes have withstood challenges under the equal protection and special

legislation clauses. See, e.g., Davis v. Chicago Housing Authority, 136 Ill. 2d 296, 301-02

(1990); Bilyk, 125 Ill. 2d at 236 (rejecting plaintiff’s claim that Tort Immunity Act violated

equal protection and special legislation clauses).

¶ 64 In this case, we disagree with appellants’ contention that distinguishing between a

swimming pool and a river is not rationally related to a legitimate state interest. It would not

be unreasonable for the legislature to find that waterways, such as the Fox River, present a

significantly greater threat in terms of potential liability for public entities than swimming

pools, because of such factors as greater total area, greater potential distance from shore,

greater depth, and greater unpredictability due to such factors as water current. Seeking to

reduce such potential liability for public entities is a legitimate state goal, as our supreme

court has explained:

“The reason [for tort immunity of local governmental entities] is one of public policy, to

protect public funds and public property. Taxes are raised for certain specific

governmental purposes; and, if they could be diverted to the payment of the damage

claims, the more important work of government, which everymunicipalitymust perform

regardless of its other relations, would be seriously impaired if not totally destroyed.”

(Internal quotation marks omitted.) Davis, 136 Ill. 2d at 302 (holding that Tort Immunity

Act did not violate special legislation and equal protection clauses) (quoting 18 Eugene

McQuillin, McQuillin on Municipal Corporations § 53.24 (1963)).

Cf. Ostergren v. Forest Preserve District, 104 Ill. 2d 128, 133 (1984) (absolute immunity

granted to forest preserve forinjuries sustained byplaintiff while snowmobiling was justified

in light of the “massive repairs” that might be required for landowners to make their property

safe for snowmobiling in the absence of such immunity). Thus, the fact that the school

defendants enjoy greater immunity for activities undertaken in the Fox River as opposed to

in a YMCA swimming pool is not arbitrary but is related to the pursuit of a legitimate state

goal. See Bilyk, 125 Ill. 2d at 236.

¶ 65 Appellants acknowledge that it is reasonable for the legislature to seek to protect public

entities located near bodies of waterfrom liability for accidents that occurin bodies of water.

They apparently contend that the legislature may not constitutionally extend that same

protection to landlocked entities, citing McCoy, 334 Ill. App. 3d at 471. We disagree. In

McCoy, the plaintiff, as the administrator of a deceased longshoreman’s estate, brought an

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action against the port district, alleging that the port district’s negligence in maintaining the

dock where the longshoreman was working caused him to fall into the water and drown. Id.

at 464. The trial court dismissed plaintiff’s negligence claim on grounds that the port district

was immune from liability under section 3-110. Id. at 465. On appeal, plaintiff claimed that

section 3-110 was unconstitutional in that it violated the special legislation clause of our state

constitution. Id. at 470. The McCoy court rejects this claim, stating:

“In order to accept the claim that the statute violates the special legislation clause of the

Illinois Constitution, we would have to equate public entities near bodies of water with

those that are landlocked. *** Like all legislation, the sections of the Tort Immunity Act

were created to address certain persons, groups and situations. In this case, section 3-110

deals with immunity in the context of local public entities near waterways. Our reading

of the statute indicates that all municipalities near the water are treated in the same

manner.” Id. at 471.

In this passage, it appears that the McCoy court may have conflated the location of the injury

with the location of the public entity, since, under the facts of McCoy, the location of the

injury and the location of the public entity were one and the same. The McCoy court does not

seem to even contemplate a situation in which the public entity is located somewhere other

than near the body of water where the injury occurred, much less purport to announce a rule

that, in such a case, a landlocked entity may not enjoy the immunity granted by section 3-

110. More overridingly, neither the McCoy court nor the appellants in the instant case make

any compelling argument as to why, if the legislature may legitimately seek to shield riparian

public entities from exposure to liability for accidents on open bodies of water, it may not

seek to confer the exact same protection upon landlocked public entities, provided the injury

for which they are being sued occurred on a waterway. As indicated earlier, there are

legitimate reasons for the legislature to choose to protect public entities from suits

occasioned by the dangers inherent in open waterways. Those dangers are not dependent

upon the location of the public entity but, rather, the location of the accident in, on, or

adjacent to a waterway. Consequently, we reject appellants’ argument that section 3-110 as

applied in the instant case violates the equal protection and special legislation clauses of our

constitution.

¶ 66 We next turn to consider appellants’ contention that section 3-110, as applied to the

instant case, violates the certain remedy clause of the constitution. That clause provides,

“Every person shall find a certain remedy in the laws for all injuries and wrongs which he

receives to his person, privacy, property or reputation. He shall obtain justice by law, freely,

completely, and promptly.” Ill. Const. 1970, art. I, § 12. However, appellants provide no

argument in their brief specifically pertaining to this provision and supporting their

contention that it is violated by the application of section 3-110 in this case. Thus, any such

contention is waived. Ill. S. Ct. R. 314(h)(7) (eff. July 1, 2008) (points not argued are

waived).

¶ 67 In any event, even if we were to reach the merits of appellants’ contention, we would find

it to be unfounded. Our supreme court has noted that the certain remedy clause is “merely

an expression of a philosophy and not a mandate that a ‘certain remedy’ be provided in any

specific form.” (Internal quotation marks omitted.) Cassens Transport Co. v. Illinois

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Industrial Comm’n, 218 Ill. 2d 519, 532 (2006); see Bilyk, 125 Ill. 2d at 245. Thus, although

the certain remedy clause has been held to prohibit the legislature from entirely abolishing

a particular category or type of action (Heck v. Schupp, 394 Ill. 296, 300 (1946) (holding

unconstitutional a statute barring civil actions based on alienation of affection, criminal

conversation, and breach of promise to marry)), it is well established that the legislature

retains broad discretion to restrict or alter an existing remedy as necessary to promote the

general welfare (Bilyk, 125 Ill. 2d at 245). For instance, it does not violate the certain remedy

clause for the legislature to enact periods of repose within which actions must be brought,

even if some individual plaintiffs’ actions may be barred before they are discovered (Mega

v. Holy Cross Hospital, 111 Ill. 2d 416, 424 (1986)), or to restrict the amount or type of

damages a party may recover (Siegall v. Solomon, 19 Ill. 2d 145, 149 (1960) (upholding

constitutionality of statute providing that punitive damages are not recoverable in an action

for alienation of affection)), or to restrict the class of potential defendants from whom a

plaintiff mayseek a remedy (Ostergren, 104 Ill. 2d at 133-34 (statute providing that an owner

of premises had no duty to keep the premises safe for snowmobilers did not violate the

certain remedy clause where “[t]he victim in a snowmobile accident can still sue the

manufacturer, distributor or designer of the snowmobile, as well as other drivers, to name

only a few of the myriad of possible defendants”)).

¶ 68 In keeping with these principles, and, in particular, the principle that the legislature has

broad power to restrict the class of potential defendants from whom a plaintiff can seek

recovery as long as it does not entirely abolish the plaintiff’s cause of action, the Tort

Immunity Act has repeatedly withstood constitutional challenges under the certain remedy

clause. See Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 519-20

(2000) (upholding constitutionality of Tort Immunity Act against certain remedy clause

challenge because “passage of the Tort Immunity Act constituted an exercise by the General

Assembly of its broad power to determine whether a statute that restricts or alters an existing

remedy is reasonably necessary to promote the general welfare”); Davis, 136 Ill. 2d at 301-02

(holding that there was “no substance” to plaintiff’s claims that section 3-106 of the Tort

Immunity Act was unconstitutional under the certain remedy clause); Sullivan v. Midlothian

Park District, 51 Ill. 2d 274, 277-78 (1972) (section 3-106 of Tort Immunity Act does not

violate certain remedy clause); cf. Bilyk, 125 Ill. 2d at 245-47 (provision of Metropolitan

Transit Authority Act which provides immunity to Chicago Transit Authority for failure to

provide a security or police force did not violate the certain remedy clause because that

provision “does not abolish the plaintiff’s cause of action for the injuries he suffered; it

simply restricts the liability of one category of defendants”). Similarly, in addition to having

the purpose of enhancing the “ ‘protect[ion of] public funds and public property’ ” (Davis,

136 Ill. 2d at 302 (quoting 18 Eugene McQuillin, McQuillin on Municipal Corporations

§ 53.24 (1963))), the application of section 3-110 of the Tort Immunity Act to the instant

case does not purport to abolish plaintiffs’ cause of action, since, although the class of

potential defendants is restricted, plaintiffs are not precluded from seeking a remedy from

third parties, such as the YMCA. See Ostergren, 104 Ill. 2d at 133 (certain remedy clause not

violated where plaintiff is restricted from suing a particular defendant but retains cause of

action against third parties); Bilyk, 125 Ill. 2d at 247 (legislature may use immunity statutes

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to restrict the class of potential defendants from whom a plaintiff may recover so long as it

does not abolish the cause of action itself). Accordingly, we must reject appellants’

contention that section 3-110 of the Tort Immunity Act, as applied, violates the certain

remedy clause.

¶ 69 D. Whether Plaintiffs State a Cause of Action

for Willful and Wanton Misconduct

¶ 70 Based on the foregoing analysis, we find that section 3-110 applies to the instant case and

provides absolute immunity to the school defendants. However, at this juncture, we note that

the school defendants additionally contend that, even if they were not immune from liability

for willful and wanton misconduct, dismissal of the complaint was nevertheless proper,

because plaintiffs failed to state a cause of action for willful and wanton behavior on the part

of the school defendants. We find that, even if willful and wanton misconduct were the

relevant standard, either because of the application of section 3-109, which would arguably

be the applicable immunity statute if not for its requirement that the activity at issue be

conducted on property of a local public entity, or because a willful and wanton standard were

to apply under section 3-110, a strong argument could be made that plaintiffs have not

adequately stated a cause of action for willful and wanton conduct.

¶ 71 Section 1-210 of 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.” 745 ILCS 10/1-210 (West 2008). Our supreme court has explained that

willful and wanton conduct involves more than “ ‘mere inadvertence, incompetence,

unskillfulness, or a failure to take precautions.’ ” Burke v. 12 Rothschild’s Liquor Mart, Inc.,

148 Ill. 2d 429, 449 (1992) (quoting Restatement (Second) of Torts § 500 cmt. g (1965)).

Rather, it “ ‘requires a conscious choice of a course of action, either with knowledge of the

serious danger to others involved in it or with knowledge of facts which would disclose this

danger to any reasonable man.’ ” Burke, 148 Ill. 2d at 449 (quoting Restatement (Second)

of Torts § 500 cmt. g (1965)).

¶ 72 Applying this standard to cases involving misconduct by students, Illinois courts have

held that a teacher’s mere act of leaving students unsupervised, without more, is not

sufficient to establish willful and wanton conduct. Jackson v. Chicago Board of Education,

192 Ill. App. 3d 1093, 1100 (1989). Rather, a plaintiff must plead and prove that the school

“was aware or should have known that the absence of supervision posed a high probability

of serious harm or an unreasonable risk of harm.” Id.; see Pomrehn v. Crete-Monee High

School District, 101 Ill. App. 3d 331, 335 (1981) (“It is essential that plaintiff allege and

establish that when the defendant acted, or failed to act, he had knowledge, or should have

had the knowledge under the circumstances, that his conduct posed a high probability of

serious physical harm to others.”). Where such knowledge is lacking, Illinois courts have

consistently held that willful and wanton misconduct is not present. See Knapp v. Hill, 276

Ill. App. 3d 376, 385 (1995); Jackson, 192 Ill. App. 3d at 1101; Pomrehn, 101 Ill. App. 3d

at 335-36; Mancha v. Field Museum of Natural History, 5 Ill. App. 3d 699 (1972). The mere

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fact that teenagers, being teenagers, may comport themselves in such a manner as to expose

themselves or others to injury is legally insufficient to support a claim of willful and wanton

misconduct in the absence of a specific, foreseeable, and probable danger.

¶ 73 Such was the court’s holding in Pomrehn, 101 Ill. App. 3d at 335. The Pomrehn plaintiff,

a member of her high school softball team, was injured in an automobile-related accident

prior to the team’s daily softball practice. Id. at 333. Practice was scheduled to begin at 5:50

p.m., and the incident in question occurred at 5:45 p.m., at a time when the softball coach

had not yet arrived at the practice field. Id. The reason for the coach’s absence was that, on

that day, the school principal had specifically required the coach to remain at the school until

5:45 p.m. Id. Plaintiff brought suit against the school district, alleging that the principal knew

or should have known that his action increased the risk of injury at softball practice, since

the girls arrived at the practice field beginning around 5:30 p.m. Id. at 333-34. Nevertheless,

the Pomrehn court found that summary judgment was proper against plaintiff on the issue

of willful and wanton misconduct, since she failed to present any evidence that the school

acted in reckless or conscious disregard of known dangers. Id. at 335. The court explained:

“There was no evidence of any special dangers presented during the time between the

end of classes and the beginning of softball practice. There was no evidence of prior

problems or hazards with the softball team members, or the practice area involved herein.

Certainly, there is a risk of injury and a danger involved in almost any gathering of

teenagers. Yet this general potential for danger with groups of children is not sufficient

to support a charge of willful and wanton misconduct. [Citation.] No foreseeable,

probable danger flowing from a lack of supervision between 5:30 p.m. and 5:45 p.m. was

shown to have existed.” Id.

¶ 74 Similarly, in Jackson, 192 Ill. App. 3d at 1095, the court rejected plaintiff’s claim that

a failure to supervise students constituted willful and wanton misconduct. The Jackson

plaintiff alleged that, while she was in a classroom for 12- to 15-year-old mentally

handicapped students, the teacher left the classroom unsupervised, and during this time she

was struck by a chalkboard clip thrown by anotherstudent. Id. She brought a personal injury

suit against the teacher, the teacher’s aide, and the Board. Id. The Jackson court held that her

averments were insufficient to establish willful and wanton conduct where there was no

evidence that the school had any knowledge of prior behavioral problems of the student who

threw the clip. Id. at 1101; see also Mancha, 5 Ill. App. 3d at 703 (during school field trip

to museum, 12-year-old student was allowed to tour without supervision and was attacked

and beaten by third parties; court held that school district could not be held liable for willful

and wanton misconduct, since “[a]llowing the plaintiff to tour the Field Museum without

supervision was an intentional act, but it was not an act which the defendant teachers

knew–orshould have known–would result in harm to the plaintiff or create an unreasonable

risk of harm”).

¶ 75 Moreover, mere speculation as to potential harm, or conclusory allegations as to

knowledge of potential harm, are also insufficient to sustain a cause of action for willful and

wanton misconduct. Knapp, 276 Ill. App. 3d at 385. In Knapp, the plaintiff’s decedent,

Robert, as well as his classmates Michael and Charles, were classmates in an automotive

repair class. Id. at 378. At the end of class, when Charles drove his car from the class area

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to return it to the school parking lot, Robert hid in the back of Charles’ car. Id. Afterreaching

the parking lot, Robert began to walk back to the classroom. Id. On his way there, he

encountered Michael returning his car to the parking lot and jumped on the hood of

Michael’s car. Id. Michael accelerated and then braked suddenly, causing Robert to be

thrown from the hood and sustain injuries leading to his death. Id. at 378-79. Robert’s estate

brought suit against, among other parties, the school district, claiming that the school district

had committed willful and wanton misconduct in failing to prevent such horseplay. Id. at

379.

¶ 76 The Knapp court rejected this claim. Id. at 385. In doing so, it observed that plaintiff

merelymade a conclusory allegation that the school district knew or should have known that

students had previously been injured or that there was a substantial risk of injury during the

removal of automobiles from the shop area. Id. However, plaintiff failed to allege what these

previous injuries were, when they occurred, or how the school district could properly be

charged with knowledge of them. Id. Thus, the Knapp court found that plaintiff’s allegation

in this regard was “a mere conclusion premised upon unfounded speculation” and was

insufficient to constitute an allegation of willful and wanton misconduct on the part of the

school district. Id.

¶ 77 By contrast to Pomrehn, Jackson, Mancha, and Knapp, in the cases where Illinois courts

have found a triable issue of material fact with respect to willful and wanton misconduct

premised upon a lack of proper supervision, it has been because plaintiffs have alleged that

defendants knew or should have known of a specific, foreseeable, and probable danger

arising from their lack of supervision. Forinstance, in Murray v. Chicago Youth Center, 224

Ill. 2d 213, 217 (2007), a 13-year-old student was injured in a mini-trampoline accident

during a tumbling class sponsored and taught by defendants. The Murray court held that a

triable issue of material fact existed on whether defendants’ conduct was willful and wanton.

Id. at 246. It explained that there was specific evidence, not only that the supervision in the

tumbling class was inadequate, but that defendants knew or should have known that such

inadequate supervision posed substantial risks to students:

“The evidence demonstrates that it is well known that use of a mini-trampoline is

associated with the risk of spinal cord injury from improperly executed somersaults and

that catastrophic injuries, including quadriplegia, can result from an improperlyexecuted

somersault. The evidence also indicates that the tumbling/trampoline program was not

supervised by an instructor with professional preparation in teaching trampolining, nor

was it taught in a proper manner with reminders of the risk of injury incorporated into

the teaching process. The evidence also indicated that trained spotters and safety

equipment were not provided at all times, and none of the United States Gymnastic

Federation Safety Manual guidelines were followed.” Id.

¶ 78 In reaching its decision, the Murray court relied in part upon Doe v. Chicago Board of

Education, 213 Ill. 2d 19 (2004), the facts of which are also instructive. In Doe, plaintiff’s

ward, a mentally impaired special education student, was allegedly sexually assaulted by a

fellow student while riding the school bus, and plaintiff brought suit against the Board. Id.

at 22. Plaintiff alleged that the attendant employed to supervise the children on the school

bus had called in sick, thus leaving the children unsupervised. Id. Plaintiff further alleged that

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the assailant had a deviant sexual history, had been declared a sexually aggressive child and

youth ward, and was under a “ ‘Protective Plan’ ” requiring that he not be left unsupervised

with other children. Id. The Doe court held that these averments of fact were sufficient to

present a jury question as to whether the Board committed willful and wanton misconduct

in leaving the children unsupervised. Id. at 29.

¶ 79 Arguably, plaintiffs in the instant case have not alleged any such foreknowledge of

specific and probable harm as was present in Murray or in Doe. It is true that plaintiffs have

alleged that the school defendants knew or should have known that, on November 10, 2008,

several students sneaked out of Ward House and rode a paddleboat on the Fox River.

However, plaintiffs have failed to allege facts from which it could be concluded that the

school defendants knew or should have known that harm was likely to result from any such

late-night excursion. See Mancha, 5 Ill. App. 3d at 703 (no willful and wanton misconduct

where teachers intentionally allowed student to tour museum unsupervised but it was not an

act that teachers knew or should have known would create an unreasonable harm). In this

regard, the instant case would be distinguishable from Murray and Doe, both of which

involved activities that were patently dangerous on their face, respectively, trampolining,

about which it is “well known” that “catastrophic injuries, including quadriplegia,” may

result from improperlyexecuted maneuvers (Murray, 224 Ill. 2d at 246), and leaving plaintiff

unsupervised with a student who had a deviant sexual history and who had been declared

sexually aggressive (Doe, 213 Ill. 2d at 22). By contrast, there is no such obvious danger

associated with paddleboating. Plaintiffs have not alleged that the school defendants had any

knowledge of the dangerous condition of the boats, namely, the removal of drain plugs, that

led to the injury in the instant case. Rather, the complaint states that these paddleboats were

the property of YMCA. Plaintiffs do not claim that the school defendants owned the boats,

were responsible for their maintenance in any way, or otherwise had any basis upon which

we could infer that they knew or should have known of their dangerous condition.

¶ 80 In the absence of any such knowledge by the school defendants, any claim that the school

defendants should have known of the danger these paddleboats posed to their students is

mere speculation. See Knapp, 276 Ill. App. 3d at 385 (plaintiff’s claim that school district

should have known that there was a substantial risk of injury during the removal of

automobiles from the shop area was “a mere conclusion premised upon unfounded

speculation” where plaintiff failed to allege any specific incidents of past injuries or how the

school district could properly be charged with any knowledge of them). Thus, a strong

argument could be made that plaintiffs have failed to allege that the school defendants acted

in reckless disregard of a “foreseeable, probable danger flowing from a lack of supervision”

during the night of November 14, 2008, as would be necessary to sustain a claim for willful

and wanton misconduct. Pomrehn, 101 Ill. App. 3d at 335; see Mancha, 5 Ill. App. 3d at 703.

¶ 81 Since we have already found the school defendants’ immunity in this case to be

controlled by section 3-110, which confers absolute immunity from suit, and we have

additionally found that, even if the school defendants were not immune from liability for

willful and wanton misconduct, a strong argument could be made that plaintiffs have failed

to allege such misconduct, we need not address the school defendants’ final argument,

namely, that the actions of the students in sneaking out of the dormitory and the actions of

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the YMCA in failing to have drain plugs in their paddleboats constitute superseding causes

absolving the school defendants of liability.

¶ 82 III. CONCLUSION

¶ 83 For the foregoing reasons, the judgment of the trial court in dismissing all counts against

the school defendants is affirmed.

¶ 84 Affirmed.

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