## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Choi ce v . Y MCA of McHenry Coun ty , 2012 IL App (1st) 102877

Appellate Court Caption VI R GINI A CHOI CE, as Special Administrator of the Estate of Melvin Choice I I I
, Dec ease d; L EONARD AVANT
, as Special Administrator of the Estate of J immy Avant, Dec ease d; and BRI GETTE J ON E S, as Special Administrator of the Estate of Adrian J ones, Dec ease d, Plai ntiffsAppellants, v. YMCA of McHENRY COUNTY, an I llinois Corporation, Def endant- Appe ll a

nt ( N o rth L awnda le College Prepar atory Charter Hig h School, an I ll i n o i s Corporation, and the Board of Education of t he C ity of Chicag o, Def

endants-A

ppellees)

.

District & N o. First District, F ifth Division Docke t Nos. 1-10-2877, 1-10- 2878, 1-10-2897 c ons.

Filed Aug ust 17, 2012

Held (Note : Thi s syl lab us

con st it u t es no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Section 310 of the Tort I mmunity Act immuniz ed defe ndant school and board of e ducation from liability for the drowning deaths of three students who sneake d awa

y from a leade rship camp for a late-nig ht excursion on paddleboats, since plaintiffs fa iled to establish that se ction 310 violated the equal protec tion, specia l leg islation or cer tain reme d

y clause and there

was a strong argument that plaintiffs failed to a lleg e willful a nd wanton misconduct by

defe ndants.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, Nos. 08-L -12929, 09-L

245, 09-L -8513 cons.; the Hon. Clare E. McWill iams, J udg e, presiding

.J udg ment Affir med.

Counsel on Appea l Timothy J

. Young
, L eena S o n i
, and Michae l L

. Shacter
, all of L ewis Br isbois Bisg aar d & Smit h, L L P, of Chicag o, for appe l l an t YMCA of McHe nry County

.

Thomas E. Pakenas, of Dale & Pakena s , o f Chicag o, for appellant Virg inia Choice.

David E. Rapoport and J oshua L

. Weisberg
, both of Ra p oport L aw Offic es, P.C., and Matthew Wil lens, of Wil lens L aw Offic es, P.C., both of Chicag o, for a

ppellant L eonar d Avant.

Melvin Br ooks
, o f Co c hr a n, Cherry
, Givens, Smit h & Montgome ry , L L C, of Chicag o, for a

ppellant B rig ette Jones.

J oseph P. Postel, David S. Osborne, and J ames L

. Wideikis
, all of Reppaport & Postel, L L C, and L aure n K. Meac ham and Patrick J

. Norris, both of Meac hum & Starc k, both of Chicag o, for a ppellees.

Panel PRES I DI NG J USTI CE EPSTEI

N delivered the judgme nt of the court, with opinion.
J ustices McB ride a

nd Quinn concur

red in the judgment and opinion.*

OP INION

¶ 1 This case arises from the drowning deaths of three high school students on the Fox River. I n November 2008, students from North L awnda le College Prepar atory Charter Hig h School (L awnd al e Hig h School) wer e attending a one-w eek school ethical leade rship prog ram at Camp Alg onquin, a camp operated and maintained by the YMCA of McHe nry County (YMCA). I n the ear ly morning hours of November 14, 2008, 16 students surre ptitious ly left the do rm i t o ry t o ride paddleboats on the near by Fox River. As a result of this late-nig ht boating excursion, three of the students, 17- y ear -old Melvin Choice I I I , J immy Avant, and

*J ust ic e J ose ph Gord on ori ginal ly aut hor ed thi s opi nio n. Fol lowi ng J ust ic e Gord on’ s pas si ng, P re si din g J ust ic e Epst ei n ado pte d the opi nio n. J ust ic e Quin n has re viewed the bri ef s and

ora l a rgum ent re cor din gs.

-2-Adrian Jones, drowne d. 1 ¶ 2 The est at es o f t h e t h re e s t udents who drowne d (collec tively
, the Choice plaintiffs) broug ht a wrong ful death suit ag ainst L awnda le Hig h School, the Boa rd of Education of the C i t y of Chicag o (B oard) (collec tively ref err ed to as the school defe ndants), YMC A, an d Visionquest Association, I nc., which alleg ed ly d e s ig n e d a n d c o n d u c te d th e leade rship retre at. I n addition, one of the surviving students who witnessed the drowning s, Marsha un Wil liams, broug ht suit ag ainst the school defe ndants, YMCA, and Visi o n q u es t Association for
neg lige nt infliction of emotional distress. The Choice plaintiffs’ suit and the Wil liams suit

wer e subseque ntly

consolidated into the instant action. ¶ 3 The school defe ndants filed combined motions to dismiss the counts perta ining to them pursuant to sections 2-615 and 2-619 of the Code of Civil Procedur e (735 I L CS 5/2-615, 2- 619 (West 2008)), claiming that they wer e fully immuniz ed from liability by section 3-110 of the L ocal Gover

nmental and Gover

nmental Employ ees Tort I mmunity Act (745 I L CS 10/1-101 et seq. (West 2008)) (Tort I mmunity Act), which provides, “Ne ither a local public entity nor a public employ ee is liable for any injury o cc u rr i n g on, in, or adjac ent to any water way , lake, pond, river or stream not owned, supervised, maintained, operated, manag ed

or controlled by the local public entity .” 745 I L CS 10/3-110 (West 2008). Plaintiffs, on the other hand, contende d that the applicable immunit y provision was section 3-109 of the Tort I mmunity Act, which provides qualified immunit y for local public entities ag ainst participa nts in hazardous rec reational activities, but, u n l i ke section 3-110, contains an exception for willful and wanton misconduct. These statutes and their interplay shall be fully discussed in the Ana ly sis section of this decision. ¶ 4 The trial court found that section 3-110 of t he Tort Immunity Act fully immuniz ed the school defe ndants from liability

. Acc ording ly
, it g rante d the school defe ndants’ motions to dismiss the counts ag ainst them, leaving the action standing ag ainst t h e re m ai ning defe ndants. Both the Choice plaintiffs and YMCA filed appea ls pursuant to I llinois Supreme Court Rule 304(a) (ef

f. Fe b. 26, 20 10), which have been consolidated into the appea l at hand. (Visionquest Association did not appea l from the judgme nt at issue here in and, 2

acc ording to the brief of the school defe ndants, has been dismiss ed without pr ejudice prior to the issuance of

this opini on.) F or the re asons that follow, we aff irm.

¶ 5 I . BA CKGROUND ¶ 6 The Choice plaintiffs’ firs t co n s o l i d at ed compl aint at law alleg es the following . On October 15, 2008, YMCA’s Camp Alg onquin acc epted rese rv at ions for 31 students from L awnda le Hig h School to attend a one-w eek ethical leade rship prog ram to be held at Camp Alg onquin from November 7, 2008, to November 14, 2008. Acc ording to the complaint, this
prog ram was staffe d by employ ees of eac h of the defe ndants, who share d responsibility for the safe ty and sec urity

of the students.

T he a ges of

Avant a nd J one s a re not m ent ion ed i n t he r eco rd. 1

Pla int if f W il li ams does not app eal

. 2

-3-¶ 7 Camp Alg onquin is located along the wester n shore of the Fox River. Acc ording to the complaint, on October 8, 2008, approximately a month b ef o re the program beg an, Camp Alg onquin staff place d seven paddleboats near the shore of the Fox River without chaining

or otherwise secur ing the paddleboats to preve nt them from being used without permission. The complaint states that these seven paddleboa ts wer e stored with o u t t h ei r drain plugs attache d. Wit hout drain plugs, the paddleboats would slowly fill with water during ordinary

use and become incre asing ly unstable in a proce ss that would be g radua l beca use of the small siz e of the drain holes and the fac t that the boats contained floatation materia l. The complaint alleg es that the paddleboats rema ined without drain plugs until the incident that occa sioned this lawsuit. ¶ 8 The ethical leade rship prog ram took place from November 7, 2008, to No v em b er 14, 2008. During that wee k, the 31 L awnda le Hig h School students wer e assig ned sleeping

acc ommodations in a building known as Ward House, with none of the staff being assig ned
to stay with them in the same building. This alleg edly violated Camp Alg onquin’s chape rone rule, which require d an 8:1 r atio of students to staff, as well as the Boa rd’s chape rone rule, which re quired a

6:1 ratio of students to staff. ¶ 9 Acc ording to the complaint, in the early morning hours of November 14, 2008, during their final nig ht at Camp A lgonquin, six teen of the students sneake d out of Ward House at night, helped themselves to th e Y M CA p a d d le b o a ts, appar ently without permission, and rode them on the Fox River. The complaint alleg es that the boat containing one of the plaintiffs, Choice, beg an to fill with water due to the missing drain plugs, and, as a result, Choice “wa s

cause d to enter the water .” The other two plaintiffs, Avant and J ones, alleg edly dove into the
water to save Choice, r esulting in the dr owningof all three of them. ¶ 10 The complaint further alleg es that four day s prior to this occur renc e, on th e n i gh t o f November

10, 2008, four of the students sneake d out of the Ward House at appr ox imately 11 p.m. They took one of the paddleboats and rode it briefly in the Fox River, not rea liz ing that the drain plugs wer e missing or that the boat was taking on water

. When they finished, they pulled the paddleboat pa rtially onto the west shore of the Fox River, wher e they left it for the night befor e returning to Ward Ho u s e. By the next morning
, the paddleboat had
g otten loose and floated acr oss to the opposite shore of the river, wher e it alleg edly rema ined in plain view until November 14, 2008. The complaint alleg es that most, if n o t all, of the students knew abo u t t he paddleboat on the far shore of the river. The complaint further alleg es t hat s taff of

eac h of the de fenda

nts should have known that there was a paddleboat on the fa r shore and why

it was there

. ¶ 11 The Choice plaintiffs filed a complaint in 25 counts seeking damag es for wrong ful death and for conscious pain and suffe ring

. Counts I throug h VI asser t claims of neg lige nce ag ainst YMCA, alleg i n g t h at YMCA neg lige ntly failed to reinstall the drain plugs on the paddleboats, neg lige ntly place d the paddleboats without drain plugs in an are a that camp employ ees knew or should have known would b e frequented by children, and neg lige ntly failed to war

n of the condition of the paddleboats. Plaintiffs further alleg e that YMCA
neg lige ntly allowed 31 high school students, including the three Choice plaintiffs, to stay at Ward House without an a ppropriate amount of cha perone s.

-4-¶ 12 Counts VI I throug h XI I alleg e willful and wanton c onduct by YMCA, predic ated upon the same a lleg ations of neg lige nce ma de in counts I throug h VI

. ¶ 13 Counts XI I I throug h XVI I I asser t claims for “Willful and Wanton Conduct” ag ainst the school defe ndants. I n these counts, plaintiffs alleg e that the school defe ndants had a duty to proper ly supervise and maintain discipline of the high school students attending the ethical leade rship prog ram. Plaintiffs further alleg e that, in violation of this d u t y , the school defe ndants:
“a. Wil lfully
, wantonly and in violation of Boa rd of Education of the City of Chicag o

ru l es , all owed 31 high school students including J immy Avant, Melvin Choice I I I an d Adrian J ones t o stay

in The Ward House dorm at YMCA Camp Algonquin without an appropr iate number of qualified chape rones staying with them from November 7, 2008 to November

14, 2008; b. Wil lfully and wantonly fa i l ed to adequately supervise the high school students attending the ethical leade rship prog ram at YMCA Camp Alg onquin from November 7, 2008 to November

14, 2008;

c. Wil lfully and wantonly failed to adequat ely discipline the high school students attending the ethical leade rship prog ram at YMCA Camp Alg onquin from November 7, 2008 to November

14, 2008.”
Counts XIX throug h XXIV asser t claims of neg lige nce aga inst Visionquest Association. 3 Howeve r, since Visionquest Association is not a party t o the instant appea l and was subsequently

dismiss ed fr om the case , we ne ed not discuss these c ounts. ¶ 14 F in a ll y , in count XXV, the Choice plaintiffs seek a decla ratory judgme nt that, with reg ard
to the instant case , section 3-110 of the Tort I m m u n ity Act, which provides absolute immunit y to local publi c entiti es, i s superse ded in its application by section 3-109, which, unlike section 3-110, does not shield local public entities from lia b ility for willful and
wanton conduct. Alternately
, they seek a decla ration that section 3-110 is unconstitutional. ¶ 15 As noted, plaintiff Wil liams, one of t h e s u rv i v i n g students, filed a separ ate c omplaint

s ee k i n g relief for the emotional distress that he suffe red as a result of the November 1 4
, 2008, incident. His first amende d complaint, which frames the issues with respect t o h i m , larg ely trac ks the alleg ations of the Choice plaintiffs’ complaint and seeks relief in 10 counts. Counts I and I I
, respe ctively
, seek damag es for unspec i fied neg lige nce and damag es for

ne g li g e nt in f

li c ti on of emotional distress ag ainst Visionquest Association. Counts I I I
, I V, and V, respe ctively
, asser

t neg lige nce, neg lige nt infliction of emotional distress, and willful and
wanton conduct ag ainst the Boa rd. In count I I I
, the neg lige nce count, Wil liams contends that the B oard ne g lige ntly
“a. F ailed to ade quately

secur e the pa ddleboats; b. Fa iled to make saf

e the use of the pa ddleboats;

Count s X X I I thr ough X X V app ear to have bee n m is numbere d in the complai nt. To faci li ta te 3

our re fe re nci ng the m in thi s dec is ion
, we have cor re ct ed thi s pro ble m by ord ina ll y numberi ng eac h of the se cou nts in th ei r p rop er se que nce

.

-5-c. F ailed to supply an ade quate number

of cha perone s; d. Fa iled to require that co-de fenda nts supply

an ade quate number

of cha perone s; e. F ailed to ade quately

train its employ ees in prope r super vision; and f. F ailed to ade quately

supervise MARSHAUNWI L L I AMS and other students.”
Wil liams repe ats these alleg ations in count IV and ag ain in count V, except that in count V, he st ates that the Board “Knowing ly and with conscious dis reg ard” failed to perf o rm eac h action. ¶ 16 Counts VI
, VI I
, and VI I I o f W i l l i am s ’ co m p l ai n t , respe ctively
, asser t neg lige nce, neg lige nt infliction of emotional distress, and willful and wanton conduct ag ainst L awnda le Hig h School, a

nd they echo the alleg ations of his claims ag ainst the Boa rd. F inally , counts I X and X of Wil liams’ complaint, respe ctively
, seek damag es for unspecifie d neg lige nce and d amag es for neg lige nt infliction of emotional distress ag ainst YMCA, and they echo the alleg ations of the par allel claims ag ainst the Boa rd. ¶ 17 The school defe ndants filed combined motions to dismiss the counts perta ining to them pursuant to sections 2-615 and 2-619 of the Code of Civil Procedur e, claiming that they wer e immuniz ed from liability by section 3-110 of the Tort I mmunity Act. I n the alternative, they contende d that, even if such immunit y did not apply
, the plaintiffs had failed to state a cause of action for willful and wanton misconduct, and they had also failed to alleg e fac ts that would establish proxi mate ca use. ¶ 18 The trial court g rante d the school defe ndants’ motions to dismiss under section 2-619 of the Code of Civil Procedur e, finding that section 3-110 of the Tort I mmunity Act applied and provided them with unqualified immunit y under the fac ts of the case

. I n doing so, the court reje ct ed t he plaintiffs’ argument that the school defe ndants “super vised” the Fox River within the meaning of section 3-110 so as to be e x cluded f rom the immunity

provisions of section 3-110. I nstead, it found that the Fox River was supervised and controlled by the Fox Waterwa y Ag ency pursuant to the Fox Waterwa y Ag ency Act (615 I L CS 90/1.1 et seq. (West 1998)). The trial court also reje cted plaintiffs’ challeng e to the consti tuti o n al i t y o f section 3 -1 1 0 of the Tort I mmunity Act. Thus, the trial court enter ed order s dismiss ing all cl ai m s ag ainst the school def

endants. ¶ 19 The Choice plaintiffs and YMCA now appea l. Although plaintiff Wil liams did not join in this appea l, the dismiss al of the school defe ndants from his action is included in the appea l broug ht by

the YMCA.

¶ 20 I I . ANALYSI S ¶ 21 T h e fi rs t issue under contention by the parties is the scope of the school defe ndant s ’ immunit y from suit under the Tort I mmunity Act. In this reg ard, appellants argue that, under the fac ts of this case , the applicable section of the Tort I mmunity Act is section 3-109, which would leave the school defen d an ts open to liability for willful and wanton misconduct, i n s t ea d o f section 3-110, which provides blanket immunit y for those defe ndants that fall within its protec tion. Alternatively
, appellants argue that we should interpre t section 3-110

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

-6-fac t that no such exception is contained in the text of that section. L astly
, appellants contend

that, in the event that we find that section 3-110 is the applicable immunit y statute and that the school defe ndants qualify for immunit y under that section, such an i n t erp re t ati on of section 3-110 would r ender it unconstitut ional as applied. ¶ 22 I n addition to contesting e ach of appellants’ c ontentions, the s chool defendants fur ther contend that, even if we we re to ag ree with appellants that section 3-109 is the applicable immunit y statute, such that the school defe ndants would be subject to liability for willful and
wanton misconduct, the school defe ndants are still entitled to be dismiss ed from this action for two rea sons. First, the school defe ndants argue that plaintiffs failed to sufficie ntly alleg e willful and wa nton misconduct in their complaint. Second, they argue that plaintiffs have failed to a lleg e proximate cause as a matter of law

.

¶ 23 A. Dete rmining the Applicable Immunity Statute ¶ 24 We beg in by considering whether section 3-109 or section 3-110 gove rn s t h e scope of the s chool defendants’ imm unity in the instant case . We note at the outset t hat none of t he parties ur g es the a

pplication of any

other sec tion of the Tort Immunity Act. ¶ 25 Section 3-110, which the trial court applied in the instant case , provides: “Ne ither a loca l public entity nor a public employ ee is liable for any injury occur ring on, in, or adjac ent to any water way , lake, pond, river or stream not owned, supervised, maintained, operated, manag ed

o r co n t ro l led by the local public entity .” 745 I L CS 10/3-110 (West 2008). By contra s t , section 3-109, which appellants urg e is the corr ect statute to apply in the instant case , provides limit ed immunit y for local public entities for damag es sustained by plaintiffs participating in “ha zardous rec reational activities”: “(a ) Neither a local public entity nor a public employ ee i s liable to any person who participates in a haz ar d o u s rec reational activity
, including any person who assists the
p ar t i cipant, or to any spectator who knew or rea sonably should have known that t h e hazar d o u s rec reational activity cre ated a substantial risk of i njury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave
, for
any damag e or injury to propert y o r p ersons arising out of that hazardous rec reational activity

. [4 ] (b) As used in this S ec tion, ‘hazardous rec reational activity ’ means a rec reational activity conducte d on proper ty of a local public entity which cre ates a substantial (as distinguished from a minor, trivial, or ins i gn i fi ca n t ) risk of injury to a participa nt or a spectator. ‘Ha zardous rec reational activity ’ also mea ns: (1) Water contac t act i v i t i es , except diving, in place s wher e or at a time when lifeguards are not provided and reasonable war ning there of has been g iven or the injured party should rea sonably have known that there was no lifeguard provided at

Appel la nts do not cha ll enge the sch ool def end ant s’ st at us as loc al publ ic e n t i t ie s for 4
purpos es of the T ort I m

m uni ty Act.

-7-the time.
* * * (c) Notwithstanding the provisions of s ub section (a)
, this Section does not limit liability which would other

wise exist for any

of the following :

*** (2) An act of willful and wanton conduct by a public entity or a public employ ee which is a proximate cause of the injury .” 745 I L CS 10/ 3-109 (West 2008). ¶ 26 T h e s ch o o l defe ndants contend that section 3-109, by its terms, does not apply to the instant case, be cause paddleboa ting doe s not constitute a “hazardous re cre ational ac tivity ”

an d beca use the paddleboating incident was not “conduc ted on proper ty of a lo ca l p u b l i c entity ” as require d u n d er section 3-109(b)

. Appellants, on the other hand, contend that section 3-110 does not apply to the instant case becau s e i t s protec tion only extends to ri p arian entities, located adjac ent to a body of water , and not to landlocked entit i es

. Additionally
, appellants argue that even i f t h e provisions of section 3-110 applied under these fac ts, the school defe ndants would not be immune from suit, since section 3-110 only confe rs i mmunity wher e the body of water at issue is “not owned, supervised, m aintained,
operated, manag ed or controlled by the local public entity .” 745 I L CS 10/3-110 (West 2008). I n that respe ct, appellants contend that the school defe ndants supervise the Fox River within the meaningof that provision. ¶ 27 We consider these contention s in turn. I n doing so, we are mindful that in all statutory construction, our primary task is to asce rtain an d eff ectua te the intent of the leg islature. People v. Pullen
, 192 I ll. 2d 36, 42 (2000). I n doing so, we must assume that the leg islature did not intend to cre ate an absurd or unjust result. Id. Howeve r, we are also mindful that the lang uag e of the statute is the sure s t an d most reliable indicator of leg islative intent, and wher e that lang uag e is clea r and unambig uous, we must apply that lang uag e without further aids of statutory

construction. People v

. Zaremba
, 158 I ll. 2d 36, 40 (1994); see Village of Carpentersville v. Pollution Control Board
, 135 I ll. 2 d 4 6 3
, 469-70 (1990) (dec lining to consider le g islative history wher e languag e of statute w as unambiguous).

¶ 28 1. Whether Section 3-109 Applies ¶ 29 We beg in by considering the applicability of section 3-109 to the instant case

. The school defe ndants’ first contention in this reg ard is that paddleboating does n o t co n s titute a “hazar dous rec reational activity ” bec ause it neither “cr eate s a substantial (as disting uished from a minor, trivial, or insignifica nt) risk of injury to a participa nt or a spectator” (745 I L CS 10/3-109(b) (West 2008)) nor quali fi es as a “[w]ater contac t activit[y ]” under subsection (b)( 1) (745 I L CS 10/3-109(b)( 1) (West 20 0 8 )). Appellants argue that paddleboating is, in fac t, a water contac t activity
, citing Burdinie v. Village of Glendale Heights
, 139 I ll. 2d 501, 514 (1990), overruled in part on other grounds by McCuen v. Peoria Park District
, 163 I ll.

-8-2d 125 (1994)
, wher e our supreme court stated, without qualification, that “ ‘Water contac t 5 activities’ include sw imming, boating , and wa ter skiing .” (Empha sis added.) ¶ 30 The school defe ndants never theless argue that “[w]ater contac t activities” s hould only
encompa ss activ i t ies in which it is fore seea ble that the participa

nt will become entirely immersed in water and there fore vulnera ble to water

borne pathog ens. They further argue that paddleboating is not such an activity
, since “the user sits above the water line and immersion is not contemplated or rea sonably fore seea ble.” How ever , we note that a si milar argument could be made with respe ct to the majority of boatin g ac t i v i t ies, in that the participa nt is intended to rema in on the boat and there is littl e, if any , contac t with the water , let alone full bodily immer sion, y et our supreme court in Burdinie never theless found boating to constitute

a water contac t activity within the meaning of section 3-109. Although the Burdinie court’s
statement with reg ard to boating was dictum
, i n that Burdinie was a case involving swimming rathe r than boating
, we never theless must be g uided by it. Cates v. Cates
, 156 I ll. 2d 76, 80 (1993) (“[e]ven obiter dictum of a court of last resor t can be tantamount to a decision and the ref

ore bindingin the absenc e of a contra ry decision of that c ourt”). ¶ 31 The school defe ndants next conte n d that this section does not apply to the i nstant case beca use the paddleboating excursion was not “conduc ted on proper ty of a local public entity ”

as stated in section 3-109(b)
, which define s hazardous rec reational activities. Appellants, on the other hand, contend that since subsection (1) is pref ace d by the word “also,” the definition of hazardous r e c r e a ti o n a l a c tiviti es 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 conducte d on public proper ty , as require d under the portion of section 3-109(b) immediately

prec edingsubsection (1). ¶ 32 Howeve r, the text of section 3-109(b) does not require that we construe the word “ also”

as providing an alterna

ti v e to ever

y require ment contained in the opening para g raph of section 3-109(b)
, including the require ment that the activit y at issue be conducte d on proper ty of a local publi c entity

. Rather, more convincing ly , the term “ also” would simply expand the ty

pe of activities which are considere d to be hazardous without setting aside the

overa ll require ment that all such activities would have to be conducte d on proper ty of a local public entity

in order to trig g er the immunit y g rante d by section 3-109. This interpretation would be the more cog ent one in deter mining the intent of the leg islature. To adopt the appellants’ interpre tation that the activities listed afte r the word “also” would not be subject
to the require ment that they be conducte d on proper ty of a local public entity
, as stated in the opening p a

r a gr a p h o f s e c tion 3-109(b)
, would appea r to be wholly arbitra

ry

. Appellants make

no attempt to explain wh y t he leg islature would choose to require an activity descr ibed
g ener ically as one that “cr eate s a substantial (as distinguished from a minor, trivial, or insignifica

nt) risk of injury to a participa nt or a specta

tor” to be conducte d on proper ty of a

Burd ini e dea l t wit h sever al imm uni ty sec ti ons of the T ort I m m uni ty Act
, inc lud ing bot h 5

sec ti on 3- 109 and sec ti on 3- 106, the la tt er of whic h is not at is sue in the pre sen t cas e. Burd ini e , 139 I ll

. 2d at 513-14. I n Mc Cuen
, a sec ti on 3- 106 cas e, our sup re m e cou rt overrule d Burd ini e wit h

re spe ct to it s sec ti on 3- 106 ana lysis onl y. M c Cuen
, 163 I ll

. 2d at 130. T hus
, Mc Cuen doe s not purpor t t o di st urb th e viab il it y of Burd ini e ’s se ct ion 3- 109 ana lysis as app li ed t o t he p re sen t c ase

.
-9-local public entity
, while imposing no such para llel require ment fo r the specific ally

enumer ated hazardous rec reational activities listed in the rema inder of section 3-109(b)

. Nor do we see any rationale for draw ing such a distinct i o n

. S ee P u l l en , 192 I ll. 2d at 42 (in interpre ting a statute, we must assume that the leg islature did not intend to cre ate an absurd result). In addit ion, appellants do not provide any case s that have followed their interpre tation of the statute in this reg ard. ¶ 33 I t is of interest that in the case of Steinbach v. CSX Transport ation, Inc.
, 393 I ll. App. 3d 490 (2009), which involved a claim of immunit y under section 3-109, the court did not even contemplate any such di stinction as appellants are now urging

. I n that case , t h e father of a dece ased dir t b i k er broug ht a wrong ful death action ag ainst the city to rec over for the dirt biker’s death when he struck a steel cable that was stretche d acr oss a g rave l roadw ay

. Id. at 491. The Steinbach court rejecte d th e ci t y ’s claim t hat i t was im mune from liability under section 3-109, finding that the city did not have a possessory interest in the land at issue and the i ncident was there fore not “conduc ted on proper ty of a l o ca l public entity ” as require d under section 3-109(b) (745 I L CS 10/3-109(b) (West 2008)). Steinbach
, 393 I ll. App. 3d at 520. In doing so, the co u rt did not discuss whether the dece dent’s dirt biking “cr eate [d] a substantia l * * * ri s k of injury to a participa nt or a spectator,” as descr ibed in the opening
para g raph of section 3-109(b) (745 I L CS 10/3-109(b) (West 2008)), or whether it fell under one of the enumerated categ ories of a ctivities following the w ord “a lso.” Rather, the court appea red to g lobally apply the require ment of being “conduc ted on proper ty of a local public entity ” reg ardle ss of any such distinction. (Interna l quotation marks omitted.) Steinbach
, 393 I ll. App. 3d at 520; see 745 I L C S 10/3-109(b)( 3) (West 2008) (enume rating “off -roa d motorcy cling ” as a per se hazardous re cre ational ac tivity). ¶ 34 Thus, we reje ct appellan t s ’ co n t ention that the immunit y confe rre d by section 3-109

wou l d ap p l y i n the instant case , even wher e the activity at issue was not conducte d on proper ty of a local public entity
, simply beca use that activity is an enumer ated activity listed under subse ction (1) a

nd is prece ded by

the word “ also.” ¶ 35 We note that appellants do not c halleng e the trial court’s conclusion that the Fox Ri ver

was not the proper

ty of a local public entity bey o n d making a cursor y one-se ntence statement, without any elabor ation or further discussion, that the trial court failed to provide
any support or explanation for such a conclusion. Conversely
, appellants do not prese nt any authority or cit at i o n to the rec ord that would support a finding that the trial court’s conclusion was in err or, nor do they attempt to explain what ramifications would follow from such conclusion on the part of the trial court. Acc ording ly
, appellants have waived this point. I ll. S. Ct. R. 314(h)( 7) (ef

f. J uly 1, 2008) (appe llants’ brief shall contain citation of authority and the pa g es of the r ecor d relied upon)

. ¶ 36 I n any event, even if the activities enumer ated u nder section 3-109(b) would not have require d that they occur

on the prope rty of the school defe ndants, or even if the proper ty at issue met the require ment of being proper ty of a local public entity
, the paddleboat excursion that led to the Choice plaintiffs’ deaths was not “conduc ted” by the school defe ndants within
t h e m ea n i n g of section 3-109(b)
, since it was not in any way done at the direc tion of the school defe ndants. See Grandalski v. Lyons Townshi p High School District 204
, 3 05 I ll. App. 3d 1, 11-12 (1999). I n Grandalski
, the court deter mined that a student who perf ormed

-10-a g y mnastics maneuve r known as a “flip-f lop” during a g y

mnastics class was not eng ag ing in activity “conduc ted” by the local public entity within the meaning of section 3-109, beca use t he maneuver was not perf ormed at the t eac her’ s direc tion but was spontaneously perf ormed by the student. Id

. L ikewi s e, i n the prese nt case , the students spontaneously sneake d out of Wa rd Hous e in the ear ly hours of November 14, 2008, and the rec ords provide no basis for the conclusion that this surr eptitious a ctivity was sanctioned, let alone conducte d, by

the school def

endants. ¶ 37 Acc ording ly
, we find that, beca use th e p ad d l eb o at i n ci d ent was not “conduc ted on
proper ty of a local public entity ” as require d under section 3-109(b)
, that sec t i on does not apply to the instant case.

¶ 38 2. Whether Section 3-110 Protec ts Nonriparia n Entities ¶ 39 We now turn to consider the applicability of section 3-110 to the instant case . Appellants contend that section 3-110 only aff ords protec tion f

rom suit to riparian public entities and 6
not to landlocked public entities. Bo th the Boa rd and L awnda le Hig h School are based in Chicag o. Thus, appellants arg ue, they are both “landloc k e d ” a n d in e li g ible to claim immunit y under se ction 3-110. ¶ 40 As noted, section 3-110 provides, in its entirety : “Ne ither a local publi c en t i t y n o r a public employ ee is liable for any injury occur ring on, in, or adjac ent to any water way , lake, pond, river or

stream not owned, supervised, maintained, operated, m anag ed or controlled by the local public entity .” 7 4 5 I L CS 10/3-110 (West 2008). The plain lang uag e of this
statute does not purport to draw any distinction based on the g eographic location of the entity but, rather , on the location of the injury “on, in, or a djace nt to” a wa terwa y . On the fa ce of the statute, there is nothing that require s any proxi mity betwee n the entity and the water way at issue. Rather than limit ing its scope based upon the g eog raphic relationship betwe en the entity and the water

way at issue, its a

pplication is pr emised upon the site of the occur renc e and the proprieta

ry interest and deg ree of contro l m ai n t ai n ed by the entity over that site. Thus, contra

ry to appellants’ c ontention, it would appear that the leg islature did not intend
to deny landlocked public entiti es t h e p rot ection afforde d by section 3-110. See Zaremba
, 158 I ll. 2d at 40 (languag e of the statute is the surest and most reliable indicator of leg islative intent). ¶ 41 Appellants never theless contend that this court has previously restric ted the application of section 3-110 to municipalities l o ca t ed near water way s, citing McCoy v. Illinois Int er n ational Port District
, 334 I ll. App. 3d 462, 471 (2002). We disag ree

. McCoy is primari l y focused on the issue of specia l leg islation, which is invoked by applying the immunit y provisions under section 3-11 0 an d with which we deal later on in considera ble detail. The require d 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

Bla ck’s Law D ic ti ona ry def ine s “ ri par ia n” a s “ Of, r el at ing to , or loc at ed on the bank of a 6 ri ver or st re am (or occ as i o n a l l y ano the r body of wat er , suc h as a la ke).” Bla ck’s Law Dic ti ona ry 1328 (7 th ed. 1999 ).

-11-itself to be located adjac ent to a water way , it would be unacc epta b l e, since it would
contravene the plain l an gu age o f that section. As discussed, the languag e of that section addre sses only the location of the injury and not the location of the protec ted entity

. Moreove r, as shall be more fully discussed later on, that interpre tation, even if otherwise tenable under the plain lang uag e of the statute, which it is not, would be wholly unnece ssary to preser ve its constitutionalit y

. ¶ 42 The school defe ndants r a is e th e alternative argument that, even if section 3-110 wer e only to apply to riparian e ntities, they

would still qualify

for its protec tion, because they are not landlocked but are located in a municipality which contains the Chicag o R i v er , L ake Michig an, and “numer ous other subst antial waterwa y s.” Alt houg h there i s co gency to this
argument, we ne ed not re ach it in light of our hol ding that, under the pla in lang uag e of the statute, section 3-110 may be applied to local public entities that wo u l d o therwise incur liability for acc idents occur ring on, in, or adjac ent to bodies of water , without reg ard to their status as landlocke d or ripar ian.

¶ 43 3. Whether the School De fenda nts “Supervised” the Fox River ¶ 44 Ap p el l an t s n ex t co n t en d t hat, even if section 3-110 is controlling
, and even if the i m m u n i t y conferre d by that section may be claimed by landlocked entities, the school defe ndants are still not immune from suit under that section beca use of t h e supervisory authority that appellants claim they exercised over the Fox River under the fac ts of this case

. As noted, section 3-110 provides: “Ne ither a l o ca l p u b l i c entity nor a public employ ee is liable for any injury occur ring on, in, or adjac ent to any water way , lake, pond, river or stream not owned, supervised
, maintained, operated, manag ed or controlled by t h e l o ca l public entity .” (Emphasis added.) 745 I L CS 10/3-110 (West 2008). Thus, if the school defe ndants did, in fac t, supervise the Fox River, they would not be shiel d ed fr o m liability under this section. ¶ 45 The school defe ndants contend that the Fox River is supervised not by them, but by the Fox Water

way Ag ency , pursuant to the F ox Waterwa y Ag ency Act (615 I L CS 90/1 et seq

. (West 2008)). Indeed, se ction 7.1 of the F ox Waterwa y Ag ency Act provide s: “The Ag ency shall implement rea sonable programs and adopt nece ssary and rea sonable ordinanc es and rules to improve and maintain the Chain O L akes–F ox River rec reational
water way from t h e W i s co n s in State line to the Alg onquin Dam for the purposes of boating *** and other rec reational uses, *** and to cre ate and administer a proce dure for establishing r estricted a

rea s.” 615 I L CS 90/ 7.1 (West 2008).
See g ener ally County of

Lake v. Fox W

aterway Agenc

y , 326 I ll. App. 3d 100, 105-06 (2001) (citing this provision i n discussing the power s and duties of the F ox Waterwa y Ag ency ). ¶ 46 Appellants do not argue that the Fox Waterwa y Ag ency lacks supervisory authority over the Fox River, but the y

argue that such supe rvisory authority need not be exclusive a

nd, in this case , the school defe ndants also had supervisory authority in that they had “the rig ht and obligation to deny their students acc ess to the Fox River.” The sch o o l d ef en d ants , on the other hand, argue that supervising student s , ev en at a prog ram located near a river, is not tantamount to supervising the river itself. We ag ree with the school defe ndants.

-12-¶ 47 I n this reg ard, we find Frayne v. Dacor Corp.
, 362 I ll. App. 3d 5 7 5 (2 0 0 5 ), t o b e

instructive. When plaintiff’s dec edent, a firef ighte r, drowne d in a multi-ag ency scuba dive trainin g ex er cise, plainti ff broug ht suit ag ainst the fire protec tion districts involved in that training exercise. Id. at 576. At issue was whether the districts wer e protec ted from liability by section 3-110 of the Tort I mmunity Act. Id. at 577. The Frayne plaintiff, like the plaintiffs in the instant case , argued that the districts “super vised” the lake wh er e t h e d ive occur red within the meaning of section 3-110. Id. at 5 8 0

. The evidenc e showed that the districts
sup er v i s ed the di ve and, in fac t, exercised control over nearly ever y aspec t of t he dive. Id.
at 578, 581. However, t h e d istricts did not own the lake. Id. at 577. Rather, the lake was owned by a local club that ag ree d to permit the districts to use the lake for the dive training exercise. Id. ¶ 48 Under these fac ts, the Frayne court agr ee d wi t h t h e trial court’s conclusion that the districts did not supervise the lake for purposes of section 3-110, since “although the defe ndants may have controlled and sup er v i s ed the di ve, they did not control or supervise the lake.” Id. at 581. The c ourt explained: “[T] here is no evidenc e sug g esting that defe ndants could exert any minimal control over the lake. As the trial cour t noted, the firef ighte rs wer e nothing more than g uests. The
uncontra dicted deposition of Ritz makes it clea r that defe ndants had no rig ht to g rant or deny anyone ac cess to the lake or any portion of it.” Id.
I n particula

r, t he court cited testi mony that, even while the di ve was on go i n g, t h e districts lacke d authority

to preve nt club members f rom using the lake. Id. ¶ 49 Thus, under Frayne
, supervision require s a right t o control ac cess to the body of water at issue, not mere ly derive d from the public entity ’s rig ht to control the behavior of a small
g roup of individuals under its command, bu t a gen eral rig ht derive d from a proprieta ry or simil ar interest in the situs of the body of water itself. That is why the fire districts’ control

over the firef

ighte rs was insufficient to constitute supervision over the lake itself. Simi larly
, in the prese nt case , althoug h plaintiffs have alleg ed that the school defe ndants had the rig ht and the obligation to supervise the students, plaintiffs have not all ege d t h at the school defe ndants h ad any g ener al s upervisory authority over the Fox River, s uch that they could
g rant or deny acc ess to third parties who might wish to use the river. Consequently
, pursuant to the standard articulated in Frayne
, the school defe ndants did not supervise the Fox River for pur poses of sec tion 3-110. ¶ 50 B. Whether Section 3-110 Contains an Exception
for Willful and Wanton Mis conduct ¶ 51 Ap p el l an t s n ex t contend that, even if we find that section 3-110 is the appl i ca b l e i m m u nity statute in the instant case , we should find that section to contain an i m m u n i t y exception for willful and w a n to n mi s c o n d

uct, notwithstanding the fac t that no such exception for willful and wanton misconduct is stated in the text of that section. I n support, appellants raise two arguments. First, they argue that, under Kobylanski v. Chicago Board of Education
, 63 I ll. 2d 165 (1976), it is “we ll 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 I mmunity Act, which provides partial immunit y for conduct conc erning supervision of an

-13-activity
, demonstrates that “the leg islature intended a willful and wa nton standard to a

pply universally

to educators’ liability

for supe rvising stude nts.” ¶ 52 We disag ree with appella n t s

. Ou r supreme court has consistently reje cted attempts to inject willful and wanton immunit y exceptions into statutes that, on their fac e, do not contain them. Rather, our supreme court has stated that when the leg islature intends to except willful and wanton misconduct from the provisions of an i m m u nity statute, it has “ ‘ “u nambig uously done so.” ’ ” DeSme t v. County of Rock Island
, 219 I ll. 2d 497, 514 (2006) (quoting Village of Bloomingd a l e v. C DG Enterprises, Inc.
, 196 I ll. 2d 484, 491 (2001), quotin g B a r n et t v. Zion Park District
, 171 I ll. 2d 378, 391 (1996)) ; see also In re Chicago Flood Liti

gation
, 176 I ll. 2d 179, 196 (1997) (whe re the leg is l at u re omitted an immunit y exception for willful and wanton conduct from the plain lang uag e of section 2-201 of the Tort Immunity Act, the leg islature must have intended to immuniz e liability for both
neg lige nce a

nd willful and wanton misconduct)

. ¶ 53 Thus, for instance, in DeSme t , 219 I ll. 2d at 514-15, the court held that beca use the plain lang uag e of the immunit y provision in section 4-102 of the Tort I mmunity Act, dealing with police protec tion service s, contained no exception for wil l fu l and wanton conduct, the leg islature intended to immuniz e local public entities and public employ ees from liability for both neg lige nce and willful and wanton conduct. The court explained: “Section 4-102 of the Act is compre hensive in the bre adth of its rea ch ***. More over, se ction 4-102 conta ins no exception for wi l l fu l and wanton misconduct. We hold, g iven the fac ts of this case , that section 4-102 immuniz es defe ndants ag ainst both neg lige nce and willful and wanton misconduct.” Id. at 515. Simi larly
, our supreme court held in the 1996 case of Barnett
, 171 I ll. 2d at 391-92, that since the plain lang uag e of section 3-108 did not, at that time, contain

an immunit y ex ce p tion for willful and wanton misconduct, the leg islature must have intended to g rant immunity for suc h misconduct. ¶ 54 No r d o es K

o b yl a n s ki
, 63 I ll. 2d at 173, require a contra ry result. As noted above, appellants cite that case for the proposition that educators may be held liable for willful and wanton cond u ct

. However, Kobylanski is inapposite, beca use i t does not purport to define the scope of immunit y g rante d to local public entities under section 3 -1 10 of the Tort I mmunity Act but, ra

ther, de als with immunit y under the School Code (now see 105 I L CS 5/1-1 (West 2008)). Kobylanski
, 63 I ll. 2d at 170. I ndeed, the Kobylanski court expli citly finds that the Tort I mmunity Act is inapplicable to the fac tual situations prese n t ed i n that

case

. Id. at 174. Acc ording ly
, Kobylanski is not controlling with respe ct to the scope of immunit y provided by

section 3-110. ¶ 55 Appellants next arg ue that the 1998 amendment to section 3-108 of the Tort Immunity Act demonstrates that the leg islature intended for a willful and wanton standard to apply in all case s involving educators’ liability for su p e r v is in g s tu d e nts. Prior to the 1998 amendment, section 3-108, which confe rs immunit y for injuries sustained during the course of an activity

on public proper

ty which a public entity undertook to supervise, g rante d absolute immunit y to public entities. See Barnett
, 171 I ll. 2d at 391. In 1998
, t he legislature amende d section 3-108 to contain an immunit y exception for willful and wanton misconduct. 745 I L CS 10/3- 108 (West 2008). Although appellants do not contend in their appellate brief that section 3- 108 applies to the instant c ase, they asser t that the immunit y standard articulated in section

-14-3-108–name ly
, liability for willful and wanton co n d uct–should also be applied to case s

falling under se ction 3-110. ¶ 56 Howeve r, appellants point to no case wher e exclusion of wil l fu l an d wa n t on conduct from an immunit y statute was implied from another statute rathe r than expli citly stated, and they provide no basis upon which such an infere nce wo u l d be predic ated. Moreove r, the tenuousness of this argument is expli citly addre ssed i n Ries v. City of Chicago
, 242 I ll. 2d 205 (2011), wher e our supreme court reje cted a near ly identical argument. The Ries plaintiffs broug ht suit ag ainst the city of Chicag o afte r they wer e injured when a stolen police vehicle struck their vehicle. Id. at 207. The Ries co u rt initially had to deter mine the applicable immunit y statute under the Tort I mmunity Act. Id

. Plaintiffs urg ed the court to apply section 2-202 (745 I L CS 10/2-202 (West 2008)), which deals with the execution or enfor ceme nt of law and which contains an immunit y exception for willful and wanton misconduct, while the city urg ed the court to apply section 4-106(b)
, which deals with injuries inflicted by esca ping prisoners and, on its fac e, contains no such immunit y exception. Ries
, 242 I ll. 2d at 220. The Ries court found that section 4-106(b) applied under the fac ts of that case

. Id. Plaintiffs then
argued that section 2-202’s immunit y exception f or willful and wanton misconduct should be applied to narr ow the scope of the city ’s immunit y under section 4-106(b)

. Id. at 221. Our

s u p r e me c o urt disag ree d, citing DeSme t for its “unambiguous decla ration of the principle th a

t exceptions for willful and wanton misconduct may not b e rea d into Tort I mmunity provisions that do not contain them.” Id. at 225 (citing DeSme t , 219 I ll. 2d at 514-15); see also Chicago Flood Liti gation
, 176 I ll. 2d at 196 (whe re the leg islature omits an exception for willful and
wanton misconduct from the text of an immunit y statute, it must have intended to immuniz e liability for such misconduct). L ikewise, under Ries
, DeSme t , and Chicago Flood Liti gation
, we must reje ct appellants’ argument that section 3-108’s immunit y exception for willful and

wa n t o n misconduct should be applied to narr ow the scope of the school defe nd an t s ’ immunit y under section 3-110, si nce the plain lang uag e of section 3-110 contains n o s u ch exception.

¶ 57 C. Const itutionalit y of Section 3-110 ¶ 58 Appellants finally contend that se ction 3-110 is unconstitutional as applied to the fa cts of t he ins tant case

. I n this reg ard, as shall be fully devel o p ed below, appellants arg ue that, in the case at bar, application of sec t i o n 3 -1 1 0 violates the equal protec tion and specia l leg islation clause s of the I llinois Constit ution, as well as the cer tai n reme dy clause of the I llinois Constit ution. I ll. Const . 1970, art. I , §§ 2, 12; art. I V, § 13. ¶ 59 I

n a s s e s s ing these claims, we rec og nize that our supreme court has fre quently empha s iz e d that all leg islati v e enac tments car ry a strong presumption of constitutionalit y

. Bernier v. Burris
, 113 I ll. 2d 219, 227 (1986). Acc ording ly
, we must constru e a s t at u te in a manner upholding its constitutionalit y if rea sonably possible, and we must resolve any interpre tative doubt in favor of the statute’s validity

. People v. Boec km a n n , 238 I ll. 2d 1, 6-7 (2010); Harris v. Manor Healthcare Corp.
, 111 I ll. 2d 350, 368 (1986). Moreove r, the party raising

a constitutional challeng e bear s the burden of clea rly establishing a constitutional violation. Boec kmann
, 238 I ll. 2d at 6-7; Barnes v. Chicago Housing Authority
, 326 I ll. App. 3d 710,

-15-729 (2001) (stressing the “hea vy burden” borne by a party challeng ing the constitutionalit y of a statute)

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

case violates the equal protec tion and s p ec i al l egis lation clause s. Since the analy sis under both of these clause s is identical ( Bilyk v. Chicago Transit Autho r i t y , 125 I ll. 2d 230, 236 (1988); People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, I nc. , 114 I ll. 2d 252, 259 (1986))
, we consider these claims toge ther. See Gave ry v. County of Lake
, 160 I ll. App. 3d 761, 765 (1987). Appellants urg e that section 3-110 violates the equal protec tion and specia l leg islation clause s under the fac ts of the prese nt case beca use it “denie d rec overy of damag es based on the fortuitous location of whe re the dece dents’ deaths occurr ed.” T hey arg ue that if, hy pothetically
, 16 high sc hool 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 drowne d in that swimming pool, those hy pothetical plaintiffs would be in a superior position
to the plaintiffs in the instant case beca use the school defe ndants would not be able to claim immunit y under section 3-110. Appellants further argue that such distinction is entirely arbitra ry and ther efor e unconstitutional. ¶ 61 T h e eq u al protec tion clause provides that “No person shall be *** denied th e eq u al protec tion of the laws.” I ll. Const . 1970, art. I , § 2. Under this section, the state is require d
to treat simil arly situated persons in a simil ar manner

. People v. Kimbrough
, 163 I ll. 2d 231, 237 (1994). Al t h o ug h the State reta ins the power to classify persons and treat differ ent classes of persons differ ently
, it may not exercise this power arbitra rily

. Id. ; People v. Ree d
, 148 I ll. 2d 1, 7 (1992). In particula r, it may not arbitra

rily differ entiate b et we en simil arly situated people by placing them in nominally differ ent classes. Ree d
, 148 I ll. 2d at 7 (citing Eisenstadt v. Baird , 405 U.S. 438, 447 (1972)). ¶ 62 This pr ohibition on arbitra ry discrimination a g ainst persons or classes is supplemented by the specia l leg islation clause in our state constitution, which provides, “The Gene ral Assembly shall pass no specia l or local law when a g ener al law is or can be made applicable

. Whether a g ener al law is or can be made applicable shall be a matter for j u d icial deter mination.” I ll

. C o n s t

. 1 9 70, art. I V, § 13. Our supreme court has explained that this clause “prohibits the Gene ral Assembly from confe rring a specia l benef it o r ex cl u sive privileg e on a person or class to the exclusion of others simil arly situate d

. I n s h o rt , it prohibits leg islation which arbitra rily discriminates in favor of a selec t g roup.” Bilyk
, 125 I ll. 2d at 236. ¶ 63 Where, as here
, a statute does not af fe ct a fu n d am ental rig ht or involve a suspect or quasi-suspec t classification, the deter mination as to whether it violates the equal protec tion

an d s pecia l leg islation clause s is conducte d under the rational basis test, under which t h e statutory classification will be upheld if it is r ationally related to a leg itimate State interest. Best v. Taylor Machine W orks
, 179 I ll. 2d 367, 393 (1997); see People v. Shephard
, 152 I ll. 2d 489, 500-01 (1992) (for purposes of equal protec tion analy sis, a fundame ntal rig ht is one that is g uara

nteed by the fede ral or state constitution); People v. Hagen
, 191 I ll. App. 3d 265, 267 (1989) (suspec t classes include rac e, relig ion, and alienag e). Our su preme court has explained reviewunder the rational ba sis test as follows:

-16-“A statute will be held unconstitutional as specia l leg islation and as violative of the equal protec tion guara

ntee only if it was enac ted for rea sons totally unrela ted to the pursuit of

a leg itimate State g oal. [C itation.] The leg islature has broad latitude and discretion in draw ing statutory classifica tions to benef

it the g ener al welfa

re, and the classifications it makes are presumed to be valid. A leg islative classification will be uphe ld if any set of fac ts can be rea sonably conce ived which justify distinguishing the class to which the law applies from the cl ass to which the statute is inapplicable.” Bilyk
, 125 I ll. 2d at 236 (citing People v . Coleman , 111 I ll. 2d 87 (1986)).
I t is difficult for a party challeng ing the constitutionalit y of an immunit y statute to meet this burden, as shown by the numerous instances in wh i ch t h e Tort I mmunity Act and simil ar immunit y s t at u t es have withstood challeng es under the equal protec tion and specia l leg islation clauses. See, e.g. , Davis v. Chicago Housing Authority , 136 I ll. 2d 296, 301-02 (1990); Bilyk
, 125 I ll. 2d at 236 (re jecting plaintiff’s claim that Tort I mmunity Act violated equal pr otection and spe cial leg islation clauses). ¶ 64 I n this case , we disag ree with appellants’ contention t h at d i s t i n gu i shing betwee n a swimming pool and a river is not rationally related to a leg itimate state interest. I t would not be unre asonable for the le g islature to f ind that w ater

way s, such as the Fox Ri ver, pr esent a signific antly g reater threat i n terms of potential liability for public entities than swimming pools, beca

use of such fac tors as g reater total are a, g rea ter potential distance from s h ore, g reater depth, and gr ea t er unpredictability due to such factors as water curr ent. S eeking to reduc e such potential liability for public entities is a leg itimate state g oal, as our supreme court ha s expl ained: “The rea son [for tort immunit y of local g overnme ntal entities] is one of public policy
, to protec t public funds and p u b lic proper ty

. Taxes are raised for cer tain specific
g overnme ntal purposes; and, if they could be diverted t o t h e pay ment of the damag e claims, the more important work of g overnme nt, which ever y municipality must perf

orm reg ardle ss of its other relations, would be seriously impaired if not totally d es t roy ed.” (Interna l quotation marks omitted.) Davis
, 136 I ll. 2d at 302 (holding that Tort I mmunity Act did not violate specia l leg islation and equal protec tion clause s) (quoting 18 Eug ene McQuillin, McQuillin on Muni cipal Corporations § 53.24 (1963)). Cf. Ostergren v. Forest Preserv e Di s trict
, 104 I ll. 2d 128, 133 (1984) (absolute immunit y g rante d to fore st prese rve f o r injur ies sustained by plaintiff while snowmobiling was justified in light of the “massive repa irs” that might be require d for landowner s to make their proper ty safe for snowmobiling in the absenc e of such immunit y ). Thus, the fac t that the s ch o o l defe ndants enjoy g rea

ter immunit y for activities underta ken in the Fox River as opposed to in a YMCA swimming pool is not arbitra ry but is related to the pursuit of a leg itimate state g oal. See Bilyk

, 125 I ll. 2d at 236. ¶ 65 Appellants acknow ledg e that it is rea sonable for the leg islature to seek to protec t public entities located near bodies of water from liability for acc idents that occur in bodies of water

. They appar ently contend that the legi s l at u re may not constitutionally extend that same protec tion to landlocked en t i t i es, citing McCoy
, 334 I ll. App. 3d at 471. We disag ree

. I n McCoy , the plaintiff, as the administrator of a dece ased long shoreman’ s estate, br oug ht an

-17-action ag ainst the port district, alleg ing that the port district’s neg lige nce in maintaining the

dock wher e the longshor eman was working cause d him to fall into the water and drown. Id.
at 464. The trial court dismiss ed plaintiff’s neg lige nce claim on g rounds that the port district

was immune from liability under section 3-110. Id. at 465. On appea l, plaintiff claimed that section 3-110 was unconstitutional in that it violated the specia l leg islation clause of our state constitution. Id. at 470. The McCoy court re jects this claim, stating:
“In order to acc ept the claim that the statute violates the specia l leg islation clause of the I llinois Constit ution, we would have to e quate public entities near bodies of water with those that are landlocked. *** L ike all leg islation, the sections of the Tort I mmunity Act

wer e cre ated to addre ss cer tain persons, g roups and situations. In this case , section 3-110 deals with immunit y in the context of local public entities near water way s. Our rea ding of the statute indicat es t h at all municipalities near the water are treated in the same

manner .” Id. at 471.
I n this passag e, it appea

rs that the McCoy court may have conflated the location of the injury with the location of the public entity
, since, under the fac ts of McCoy
, t h e l o ca t i o n of the injury and the location of the public entity wer e one and the same. The McCoy court does not

seem to even contemplate a situation in which the public entity is located somewher e other than near the body of water wher e the injury occur red, much less purport to announce a rule
t hat, i n such a case , a landlocked entit y may not enjoy the i mmunity g rante d b y s ec t i o n 3

- 110. More overr idingly
, neither the McCoy court nor the appellants in the instant case make
any compelling argument as to why
, if the leg islature may leg itimately seek to shield riparia n public entities from ex posure to liability for accide nts on open bodies o f water, it may not seek to confe r the exact same protec tion upon landlocked public entities, provided the injury for which they are bei n g s u ed occur red on a water

way

. As indicated ear lier, there are legi t i m at e rea sons for the leg islature to choose to protec t public entities from suits

occ as i o n ed by the dang ers inhere nt in open water way s. Those dang ers are not depende nt upon the location of the public entity but, rathe r, the location of t h e ac ci d en t i n, on, or adjac ent to a water

way

. Consequently
, we reje ct appellants’ argument that section 3-110 as applied in the instant case violates the equal protec tion and specia l leg islation clause s of our constitution. ¶ 66 We n ex t t u rn to consider appellants’ contention that section 3-110, as applied to the instant case , violates the cer tain reme dy clause of the constitution. That clause provides, “Eve ry person shall find a certain remedy i n the l aws for all injuries and wrong s which he

rec eives to his person, privac y , proper ty or reputation. He shall obtain justice by law, fre ely
, completely
, and promptly .” I ll. Const. 1970, art. I
, § 12. Howeve r, app el l an t s provide no argument in their brief specific al l y p er t aining 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. I ll. S. Ct. R. 314(h)( 7) (ef f. J uly 1, 2008) (p o ints not argued are waived)

. ¶ 67 I n any event, even if we wer e to rea ch the merits of appellants’ contention, we would find i t t o be unfounded. Our supreme court has not ed that the certain remedy clause is “mer ely

an expression of a philosophy and not a mandate that a ‘ce rtain reme dy ’ be provided in any specific form.” (Int erna l quotation marks omitted.) Cassens Transport Co. v. Illinois

-18-Industrial Comm’n
, 218 I ll. 2d 519, 532 (2006); see Bilyk
, 125 I ll. 2d at 245. Thus, althoug h

the ce rtain re medy

clause has bee n held to prohibit the leg islature fr om entirely abolishing

a particula

r cate g ory or ty

pe o f ac tion (

Hec k v. Schupp
, 394 I ll. 296, 300 (1946) (holding unconstitutional a statute barr ing civi l actions based on alienation of aff ection, criminal

conver sation, and brea ch of promise to marry )), it is well establi s h ed that the leg islature
reta ins broad discretion to restric t or alter an exis ting reme dy as n ec es s ar y t o promote the
g ener al welfa

re ( Bilyk
, 125 I ll. 2d at 245). For instance, it does not violate the cer tain reme dy clause for the leg islature to enac t periods of repose wi thin which actions must be brought,

even if some individual plaintiffs’ actions may be barr ed befor e they are discovere d ( Mega

v. Holy Cross Hospital
, 111 I ll. 2d 416, 424 (1986))
, or to restric t the amount or ty pe of damag es a party may reco v er ( S i egall v. Solomon
, 19 I ll. 2d 145, 149 (1960) (upholding constitutionalit y of statute providing that punitive damag es are not rec overa ble in an action for alien at i o n of aff

ection))
, or to restric t the class of potential defe ndants from whom a plaintiff may seek a reme dy ( Ostergren
, 104 I ll. 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

cer tai n remedy clause wher e “[t] he victim in a snowmobile acc ident can still sue the manufa cture r, di stributor or designer of t he snowmobi le, as well as o t h er drivers, to name only a fe w of the my

riad of possible de fenda

nts”)). ¶ 68 I n keeping with these principles, and, in particula r, the principle that the leg islature has broad power to restric t the class of potential defe ndants from whom a plaint iff can seek

rec overy as long as it does not entirely abolish the plaintiff’s cause of action, the Tort I mmunity Act has r epeatedly

withstood constitut ional challeng es under the cer tain reme dy clause

. See Mi ch i

g a n A venue National Bank v. County of Cook
, 191 I ll. 2d 493, 519-20 (2000) (upholding constitutional ity of Tort Immunity Act ag ainst cer tain reme dy clause challeng e beca

use “passa g e of the Tort Immunity Act constituted an exercise by the Gene ral Assembly of its broad power to deter mine whether a statute that restric ts or alters an exis ting

reme dy is rea sonably nece ssary to promote the g ener al welfa re” ); Davis
, 136 I ll. 2d at 301-02 (holding that there was “no substance” to plaintiff’s claims that section 3-106 of the Tort I mmunity Act was unconstitutional under the cer tain reme dy clause ); Sullivan v. Midlothian Park Dist rict
, 51 I ll. 2d 274, 277-78 (1972) (sec tion 3-106 of Tort I mmunity Act does not violate cer

tain reme dy clause ); cf. Bilyk
, 125 I ll. 2d at 245-47 (provision of Metropolitan Transit Authority Act which provides immunit y to Chica g o Transit Authority for failure to provide a secur ity or police forc e did not violate the cer tain reme dy clause beca

use that
p rovi sion “does not abolish the plaintiff’s cause of action for the injuries he suffe re d ; i t simply restric ts the liability of one cate g ory of defe ndants”). Simi larly
, in addition to having the purpose of

enhanc ing the “ ‘pr otect[ion of] public funds and public proper ty ’ ” ( Davis
, 136 I ll. 2d at 302 (quoting 18 Eug ene McQuillin, McQuillin on Municipal C orporations § 53.24 (1963)) ), the application of section 3 -1 10 of the Tort I mmunity Act to the instant

case does not purport to abolish plaintiffs’ cause of action, since, alt h o u gh t he class of potential defe ndants is restric t ed
, p l aint iffs are not prec luded from seeking a remedy from third parties, such as the YMCA. See Ostergren
, 104 I ll. 2d at 133 (ce rtain reme dy clause not violated where plainti ff is restric ted fr o m s u i n g a particular defenda nt but reta ins cause of action ag ainst third parties) ; Bilyk
, 125 I ll. 2d at 247 (leg islature may use immunit y statutes

-19-to r estrict the class of potential defe ndants from whom a plaintiff may rec over so long as it

does not aboli s h t he cause of action itself). Acc ording ly
, we must reje ct appellants’ contention that section 3-110 of the Tort Immunity Act, as applied, vio l ates the cer tain

reme dy clause

.

¶ 69 D. Whether Plaintiffs State a Cause of Ac tion for Willful and Wanton Mis conduct ¶ 70 Ba sed on the fore g oing analy sis, we find that section 3-110 applies to the instant case and provides absolute immunit y to the school defe ndants. Howeve r, at this juncture, we note that the school defe ndants additionally contend that, even if they wer e not immune from liability for willful and wanton miscondu ct , d i s missal of the complaint was never theless proper , beca use plaintiffs failed to state a cause of action for willful and wanton behavior on the part of the sch o o l d ef

endants. We find that, even if willful and wanton misconduct wer e the rele vant standard, either beca use of the application of section 3-109, which would arguably be the applicable immunit y statute if not for its require ment that t h e ac t i v i t y at issue be conducte d on proper

ty of a local public entity
, or beca use a willful and wanton standard wer e to apply under section 3-110, a strong argument coul d be made that plaintiffs have not adequately

stated a c ause of

action for

willful and wanton c onduct. ¶ 71 Section 1 -2 1 0 o f t h e T o rt I mmunity Act define s “willful and wanton conduct” as “a

course of action which shows an actua l or deliberate intention to cause harm or which, if not intentional, shows an utter indiffer ence to or conscious disreg ard for the safe ty of others or their proper

ty .” 745 I L CS 10/1-210 (West 2008). Our supreme court has expl ained that willful and want o n conduct involves more than “ ‘mere inadver tence , incompetenc e, unskillfulness, or a failure to take prec autions.’ ” Burke v. 12 Rothschild’s Liquor Mart, Inc.
, 148 I ll. 2d 429, 449 (1992) (quoting Restatement (Second) o f T o rts § 500 cmt. g (1965))

. Rather, it “ ‘re quires a conscious choice of a course of action, either with knowledg e of the serious dang er to others involved in it or with knowledg e of fac ts which would disclose this dang er to any rea sonable man.’ ” Burke
, 148 I ll. 2d at 449 (q u o t i ng Restatement (Second) of Torts § 500 cmt. g(1965))

. ¶ 72 Applying this standard to case s involving misconduct by students, I llino i s courts have held t hat a teac her’ s mere act of leaving students unsupervised, without more, is not sufficie nt to establish willful and wanton conduct. Jack son v. Chicago Board of

Education
, 192 I ll. App. 3d 1093, 1100 (1989). Rather, a plaintiff must plead and prove that the school “wa s awa re or should have known that the absenc e of supervision posed a high probability of serious harm or an unrea sonable risk of harm.” Id. ; see Pomrehn v. Cr et e-M onee High School Di s t r i ct , 1 01 I ll. App. 3d 331, 335 (1981) (“It is essential that plaintiff alleg e and establish that when the defe ndant acte d, or fa iled to act, he ha d knowledg e, or should ha ve had the knowl ed ge u n d er the circ umstances, that his conduct posed a high probability of serious phy sical harm to others.”)

. Where such knowledg e is lacking
, I llinois courts have consistently held that willful and wanton misconduct is not prese nt. See Knapp v. Hill
, 276 I ll. App. 3d 376, 385 (1995); Jack son , 192 I ll. App. 3d at 1101; Pomrehn
, 101 I ll. App. 3d
at 335-36; Mancha v. Field Museum of Natural History
, 5 I ll. App. 3d 699 (1972). The mere

-20-fac t that teena g ers, being teena g ers, may comport themselves in such a manner as to expose

themselves or others to injury is leg ally insufficient to support a claim of willful and wanton misconduct in the absenc e of a specific , fore seea

ble, and pr obable da

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

a member of her high school softball team, was injured in an autom o bile-re lated acc ident prior to the team’s daily softball prac tice. Id. at 333. Practice was schedule d to beg in at 5:50
p.m., and the incident i n question occur red at 5:45 p

. m

. , at a ti me when the s oftball coac h had not y et arr ived at the prac tice field. Id. The rea son for the coac h’s absenc e was that, on that day
, the school principal had specific ally require d the coac h to rema in at the school until 5:45 p.m. Id. Plaintiff broug ht suit ag ainst the school district, alleg ing that the principal knew or shoul d h ave known t hat hi s action increase d the risk of i njury at s oftball prac tice, si nce the g irls arr ived at the prac tice field beg inning around 5:30 p.m. Id. at 333-34. Neve rtheless, the Pomrehn court found that summary judgme nt was proper ag ainst plaintiff on the i ssue of wi llful and wanton misconduct, since she failed to prese nt any evidenc e that the s chool
acte d in rec kless or conscious disreg ard of known dang ers. Id. at 335. The court explained:
“The re was no ev i d en ce of any specia l dang ers prese nted during the time betwee n the end of classes and the begi n n i n g of softball prac tice. There was no evidenc e of prior problems or hazards with the softball team members, or the prac tice are a involved here in. Certainly
, there is a risk of injury and a dang er involved in almost any g ather ing of
teena g ers. Yet this g ener al potential for dang er with g roups of children is not sufficie nt to support a char g e o f willful and wanton misconduct. [C itation.] No fore seea ble, probable dang er flowing from a lack of supervision betwee n 5:30 p.m. and 5:45 p.m. was shown to have e x isted.” Id. ¶ 74 Simi larly
, in Jack son , 192 I ll. App. 3d at 1095, the court reje cted plaint i ff’s claim that

a failure to supervise students constituted willful and wanton misconduct. The Jack son p laintiff alleg ed that, while she was in a classroom for 12- to 15-y ear -old ment al l y handica pped students, the teac her left the classroom unsupervised, and during this time she

was struck by a chalkboa

rd clip thrown by another student. Id. She broug ht a persona l injury suit ag ainst the teac her, the teac her’ s aide, and the Boa rd. Id. The Jack

son court held that her

aver ments wer e insufficient to establish willful and wanton conduct wher e there was no evidenc e that the school had any knowledg e of prior behavior al problems of the student who threw the clip. Id. at 1 101; see also Mancha
, 5 I ll. App. 3d at 703 (during school field t rip to museum, 12-y ear -old student was allowed to tour without supervision and wa s attacke d and beate n by third parties; court held that school district could not be held liable for willful and wanton misconduct, s i n ce “[a]ll owing the plaintiff to tour the Field Museum without supervision was an intentional act , b u t i t wa s not an act which the defe ndant teac hers knew–or should have known–would result in harm to the plaintiff or cre ate an unrea sonable risk of har

m”). ¶ 75 Moreove r, mere speculation as to potenti al h ar m , o r co n cl u s o ry al l ega t ions as to knowledg e of potential harm, are also insufficient to sustain a cause of action for willful and
wanton misconduct. Knapp
, 276 I ll. App. 3d at 3 8 5

. I n K n app , the plaintiff’s dece dent, Ro bert, as well as his classmates Michae l and Charles, wer e classmates in an automotive
repa ir class. Id. at 378. At the end of class, when Charles drove his car from the class ar ea

-21-to return it to the school parking lot, Robert hid in the back of Charles’ car

. Id. After rea ching

the parking l o t , R o b ert beg an to walk back to the classroom. Id. On his way there
, he
encounte red Michae l returnin g h i s car to the parking lot and jumped on the hood of M i ch ael’s car

. Id. Michae l acc eler ated and then brake d suddenly
, causing Robert t o b e thrown from the hood and sustain injuries leading to his death. Id. at 378-79. Robert’s estate broug ht suit ag ainst, among other parties, the school district, claiming that the school district had committed wi l l fu l an d wanton misconduct in failing to preve nt such horseplay

. Id. at 379. ¶ 76 The Knapp court reje cted this claim. Id

. at 385. I n doing so, it observe d that plaintiff

mere ly made a conclusory alleg ation 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

remova l of automobiles from the shop are a. Id. Howeve r, plaintiff failed to alleg e what these previous injuries wer e, when they occur red, o r h o w the school district could proper ly be char g ed with knowledg e of them. Id. Thus, the Knapp court found that plaintiff’s alleg ation in this reg ard was “a mere conclusion premised upon unfounded speculatio n ” and was insufficient to constitute an allegation of wil lful and wanton misconduct on the par t of the school district. Id. ¶ 77 By contra st to Pomrehn
, Jack son , Mancha
, and Knapp
, in the case s wher e I llinois courts have found a triable issue o f m at er i al fac t with respe ct to willful and wanton misconduct premised upon a lack of proper supervision, it has been beca use plaintiffs have alleg ed that defe ndants knew or should have known of a specific
, for es ee able, and probable dang er arising from their lack of supervision. For instance, in Murray v. Chicago Y outh Center
, 224 I ll. 2d 213, 2 1 7 (2 007), a 13-y ear -old student was injured in a mini-trampoline acc ident during a tum bling class sponsored and taug ht by defe ndants. The Murray court he ld that a triable issue of materia l fac t exis ted on whether defe ndants’ conduct was willful and wanton. Id. at 246. I t explained that there was specific evidenc e, not only that the supervision in the tumbling class was inadequate, but that defe ndants knew or should have known that such inadequate supervision posed substantial risks to students: “The evidenc e demonstrates that it is well kno wn t h at u s e of a mini-trampoline is associate d with the risk of spinal cord injury from improperly executed somersaults and that cata strophic injuries, including quadrip leg ia, can result from an improperly executed somersault. The e vidence also indicates that the tumbl ing/tra mpoline prog ram wa s not supervised by an instructor with pr ofessional prepa ration in te aching trampolining, nor was it taug ht in a proper manner wit h reminder s of t he ri s k o f i njury incorporated i nto the t ea ch i n g proce ss. The evidenc e also indicated that trained spotters and safe ty equipment wer e not provided at al l t i m es , and none of the United States Gy mnastic Fe deration Safety

Manual guidelines wer e followe d.” Id. ¶ 78 I n rea chingits decision, the Murray court re lied in part upon Doe v. Chicago Board of Education , 213 I ll. 2d 19 (2004), the fa cts of which are also instructive. In Doe , plaintiff’s

war d, a mentally impaired specia l e ducation student, was alleg edly sexually assaulted by

a fellow student while r iding the sc hool bus, and plaintiff broug ht suit ag ainst the B oard. Id.
at 22. Plaintiff alleg ed that the attendant employ ed to supervise the children on the s ch o o l bus had called in sick, thus leaving the children unsupervised. Id. Plaintiff further alleg ed that

-22-the assailant had a deviant sexual history
, had been decla red a sexually ag g ressive child and
y outh war d, and was under a “ ‘Protective Plan’ ” requiring that he not be left unsupervised with other ch i l d re n

. Id. The Doe court held that these aver ments of fac t wer e sufficie nt to prese nt a jury question as to whether the B oard c ommitt ed willful and wanton misconduct in leavingthe childre n unsupervised. Id. at 29. ¶ 79 Arguably
, plaintiffs in the instant case have not alleg ed an y s u ch fo re k nowledg e of specific and probable harm as was prese nt in Murray or in Doe

. I t is true that plaintiffs have alleg ed that the school defe ndants knew or should have known that, on November 10, 2008,

sever al students snea k ed o ut of Ward House and rode a paddleboat on the Fox River. Howeve r, p l ai n tiffs have failed to alleg e fac ts from which it could be conclude d that the school defe ndants knew or should have known that harm was likely to result from any such late-nig ht e x cursion. See Mancha
, 5 I ll. App. 3d at 703 (no willful a nd wanton misconduct wher e teac hers intentionally allowed student to tour museum unsupervised but it was not an act that teac hers kn ew o r s hould have known would cre ate an unrea sonable harm). I n this
reg ard, the instant case would be distinguishable from Murray and Doe
, both of wh i ch involved activities that wer e patently dang erous on their fac e, respe ctively
, trampolining, about which it is “we ll known” that “ca tastrophic injuries, including quadr ipleg ia,” may result from improperly executed maneuve rs ( Murray
, 224 I ll. 2d at 246), and leaving plainti f f unsupervised with a student who had a deviant sexual history and who had been decla red sexually ag g ressive (

Doe
, 213 I ll. 2d at 22). By contra st, there is no such obvi o u s d an ger associate d with paddleboating. Plaintiffs have not alleg ed that the school defe ndants had any knowledg e of the dang erous condition of the boats, namely
, the remova l of drain plugs, that led to the injury in the instant case

. Rather, the complaint states that these paddleboats wer e the proper

ty of YMCA. Plaintiffs do not claim that the school defe ndants owned the boats,

wer e responsible for their maintenanc e in any way , or otherw ise had a

ny basis upon which

we c ould infer that they

knew or should have known of

their dang erous c ondition. ¶ 80 I n the absenc e of any such knowledg e by the school defe ndants, any claim that the school defe ndants should have known of the dang er t h es e paddleboats posed to their students is

mere speculation. See Knapp
, 276 I ll. App. 3d at 385 (plaintiff’s clai m that school district

s h o u l d have known that there was a substantial risk of injury during the remova l of automobiles from the sh op are a was “a mere conclusion premised upon unfounded speculation” wher e plaintiff failed to alleg e any specific incidents of past injuries or how the school district could proper ly be char g ed with any knowledg e of them). Thus, a strong argument could be made that plaintiffs have failed to alleg e that the school defe ndants acte d in rec kless disreg ard of a “for esee able, probable dang er flowing from a lack of supervision” during the night of November 14, 2008, as would be nece ssary to sustain a claim for willful and wanton misconduct. Pomrehn
, 101 I ll. App. 3d at 335; see Mancha
, 5 I ll. App. 3d at 703. ¶ 81 Since we have alre ady found the school defe n d an t s ’ i m m u n i t y i n t his case to be controll ed b y section 3-110, which confe rs absolute immunit y from suit, and we have additionally found that, even if the s ch o o l defe ndants wer e not immune from liability for willful and wanton misconduct, a strong argument could be made that plaintiffs have failed
to alleg e such misconduct, we need not addre s s t h e school defe ndants’ final argument, namely , that the ac tions of the students in sneakingout of the dormitory and the actions of

-23-the YMCA in failing to have drain plugs in their paddleboats constitute superse ding cause s

absolving the school def

endants of liability

.

¶ 82 I I I . CONCL USI ON ¶ 83 For the fore g oing rea sons, the judgme nt of the trial court in dismiss ing all counts ag ainst the school def

endants is af

firmed.

¶ 84 Affir

med.

-24-