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                                  Supreme Court                             Date: 2018.01.22
                                                                            15:13:36 -06'00'




                        Barr v. Cunningham, 2017 IL 120751




Caption in Supreme   EVAN BARR, Appellee, v. LAUREL CUNNINGHAM et al.,
Court:               Appellants.



Docket No.           120751



Filed                March 23, 2017



Decision Under       Appeal from the Appellate Court for the First District; heard in that
Review               court on appeal from the Circuit Court of Cook County, the Hon.
                     Diane Shelley, Judge, presiding.



Judgment             Appellate court judgment reversed.
                     Circuit court judgment affirmed.


Counsel on           Schain, Banks, Kenny & Schwartz, Ltd., of Chicago (Michael E.
Appeal               Kujawa and Deborah A. Ostvig, of counsel), for appellants.

                     Mariam L. Hafezi and Daniel J. Kaiser, of Kaiser Law, of Bensenville,
                     for appellee.

                     Edward F. Dutton, of Lisle, for amici curiae Park District Risk
                     Management Agency et al.
     Justices                 JUSTICE BURKE delivered the judgment of the court, with opinion.
                              Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride,
                              Garman, and Theis concurred in the judgment and opinion.



                                               OPINION

¶1         Plaintiff, Evan Barr, filed suit in the circuit court of Cook County against defendants,
       Township High School District 211 (District) and Laurel Cunningham, for injuries he
       sustained during a physical education class at James B. Conant High School (Conant). The
       lawsuit advanced to a jury trial. After all of the evidence was heard, the trial court entered a
       directed verdict for defendants. The court held that plaintiff failed to prove during his
       case-in-chief that defendants’ conduct was willful and wanton, an exception to the
       supervisory immunity set forth in section 3-108 of the Local Governmental and
       Governmental Employees Tort Immunity Act (Act). 745 ILCS 10/3-108 (West 2010). The
       appellate court, with one justice dissenting, reversed and remanded for a new trial. 2016 IL
       App (1st) 150437. For the following reasons, we reverse the appellate court’s judgment.

¶2                                           BACKGROUND
¶3          On June 3, 2010, plaintiff was playing floor hockey with 11 other students in his physical
       education class when a ball bounced off his stick and hit him in the eye, causing injury to his
       eye. In his second amended complaint, plaintiff alleged that Cunningham, the physical
       education instructor, was willful and wanton in failing to require the students to wear
       protective eyewear while playing floor hockey. In response, defendants asserted affirmative
       defenses alleging statutory immunity under sections 2-201 and 3-108 of the Act. 745 ILCS
       10/2-201, 3-108 (West 2010). The parties filed cross-motions for summary judgment. The
       trial court denied both motions. The parties then proceeded to a jury trial, at which the
       following evidence was introduced.
¶4          In June 2010, plaintiff was 15 years old and a sophomore at Conant. On June 3,
       Cunningham allowed the students in the physical education class to choose one of several
       activities as part of a “heart rate monitor day.” Plaintiff chose to play floor hockey with the
       same group of students with whom he had played floor hockey on 8 to 10 prior occasions. On
       each of these occasions, the students played floor hockey with plastic hockey sticks instead
       of wooden sticks and “squishy” safety balls instead of pucks. Cunningham was supervising
       the game, and all players were following the rules. Plaintiff was playing defense when an
       opposing player hit the ball toward him. The ball bounced off plaintiff’s stick and hit him
       directly in the eye, causing injury and permanent dilation of his pupil.
¶5          Several witnesses testified that a box of safety goggles was stored in the same bucket as
       the safety balls in the equipment closet. However, there was no direct evidence that the
       goggles were purchased specifically for students playing floor hockey. Plaintiff testified that
       he probably would not have chosen to wear goggles had he known they were an available
       option.



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¶6          Cunningham testified that she did not require students to wear safety goggles because she
       felt that the modified floor hockey equipment negated the need for protective eyewear. When
       asked why she did not instruct the students to wear goggles, Cunningham replied, “[m]ostly
       because I thought the equipment that we had was safe. I didn’t think that an eye injury that
       was serious would even happen with the equipment that we had.” Cunningham testified that
       she also imposed certain rules for the players’ safety, including no high sticking, no
       checking, no jabbing, no slashing, no tripping, and no bending of the sticks. Students were
       instructed to keep the ball on the floor and to stop playing when Cunningham blew her
       whistle. Players would be penalized for breaking one of the rules.
¶7          Cunningham acknowledged that the ball would fly above players’ waists at times during
       the games. However, she stated that she had not witnessed a student get hit in the face with a
       safety ball or stick prior to plaintiff’s injury. According to Cunningham, no other student had
       suffered a serious injury from floor hockey prior to June 2010.
¶8          David Peña, the chairperson of the physical education department, testified that there was
       no rule mandating that students wear goggles while playing floor hockey. Peña further
       testified that there was no school district policy, law, or statute requiring the use of protective
       eyewear. Peña said he was not aware of any student other than plaintiff who had suffered an
       injury due to a lack of eyewear in a physical education class at Conant.
¶9          At the close of the evidence, defendants moved for a directed verdict. The trial court
       granted the motion and entered judgment for defendants. The court rejected defendants’
       claim of discretionary immunity under section 2-201 (745 ILCS 10/2-201 (West 2010)) of
       the Act but held that defendants were immune from liability as a matter of law pursuant to
       section 3-108 (745 ILCS 10/3-108 (West 2010)). The court based its holding on plaintiff’s
       failure to present evidence of any willful and wanton conduct by defendants.
¶ 10        On appeal, a divided appellate court panel reversed the judgment of the trial court and
       remanded for a new trial on the merits. 2016 IL App (1st) 150437. The majority held that
       Cunningham’s decision not to require students to wear the available safety goggles could be
       considered by a jury to be willful and wanton. The majority held, therefore, that the trial
       court erred in directing a verdict for defendants on the issue of supervisory immunity under
       section 3-108 of the Act (745 ILCS 10/3-108 (West 2010)). 2016 IL App (1st) 150437, ¶¶ 25,
       31. The majority further held that the evidence did not support defendants’ claim of
       discretionary immunity under section 2-201 of the Act (745 ILCS 10/2-201 (West 2010)).
       2016 IL App (1st) 150437, ¶¶ 26-31. The dissenting justice argued that the trial court’s
       judgment was correct because the evidence presented by plaintiff did not raise a substantial
       factual dispute as to whether defendants’ conduct was willful and wanton. Id. ¶ 34 (Mason,
       P.J., dissenting).
¶ 11        This court granted defendants’ petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Mar.
       15, 2016). We allowed the Illinois Trial Lawyers Association, as well as the Park District
       Risk Management Agency and the Illinois Governmental Association of Pools, to file briefs
       as amici curiae. Ill. S. Ct. R. 345(a) (eff. Sept. 20, 2010).

¶ 12                                        ANALYSIS
¶ 13      Defendants challenge the appellate court’s reversal of the directed verdict in their favor
       on the issue of whether defendants committed willful and wanton conduct. Willful and

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       wanton conduct is an express exception to the immunity afforded by section 3-108 of the Act
       concerning the supervision of an activity on public property:
               “(a) Except as otherwise provided in this Act, neither a local public entity nor a public
               employee who undertakes to supervise an activity on or the use of any public property
               is liable for an injury unless the local public entity or public employee is guilty of
               willful and wanton conduct in its supervision proximately causing such injury.” 745
               ILCS 10/3-108 (West 2010).
¶ 14       Section 1-210 of the Act defines willful and wanton conduct as follows:
               “ ‘Willful and wanton conduct’ as used in this Act means 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. This definition shall apply in any case where a ‘willful and wanton’
               exception is incorporated into any immunity under this Act.” 745 ILCS 10/1-210
               (West 2010).
¶ 15       “Although the issue of willful and wanton conduct is usually a question of fact for the
       jury, a verdict may be directed on this issue if the evidence, viewed in its light most favorable
       to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that
       evidence could ever stand.” Harris v. Thompson, 2012 IL 112525, ¶ 42 (citing Pedrick v.
       Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967)). We consider the totality of the
       evidence in determining whether a defendant’s conduct was willful and wanton. Id. ¶ 45. If
       there is insufficient evidence to sustain an allegation of willful and wanton conduct, the issue
       should not go to the jury for its consideration. Id. ¶ 46. However, “[t]he circuit court may not
       enter a directed verdict ‘if there is any evidence, together with reasonable inferences to be
       drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of
       credibility of the witnesses or the determination regarding conflicting evidence is decisive to
       the outcome.’ ” Id. ¶ 45 (quoting Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992)). This
       court’s review is de novo. Id. ¶ 42.
¶ 16       Plaintiff contends that Cunningham demonstrated a conscious disregard for the safety of
       her students when she opted not to require safety goggles for floor hockey. Plaintiff makes
       two arguments in favor of affirming the appellate court’s decision to allow a jury to decide
       the issue of willful and wanton conduct. First, he argues that the fact that goggles were
       available and stored with the floor hockey equipment presents a substantial question as to
       whether Cunningham was willful and wanton. We disagree.
¶ 17       According to the evidence introduced at trial, Cunningham required students to play floor
       hockey using plastic hockey sticks instead of wooden sticks and “squishy” safety balls
       instead of hard pucks. Based on her experience and expertise, Cunningham determined that
       the goggles were not necessary because she did not believe a serious eye injury could occur
       using this equipment. Cunningham also imposed and enforced various rules for the specific
       purpose of ensuring safety and preventing injuries. Thus, plaintiff did not meet his burden to
       show that Cunningham exhibited a conscious disregard for the students’ safety. To the
       contrary, the evidence showed that Cunningham consciously considered student safety when
       she determined that the floor hockey equipment, together with the rules students were
       required to follow, was sufficient to prevent injuries.



                                                   -4-
¶ 18        This court has held that school employees who exercised some precautions to protect
       students from injury, even if those precautions were insufficient, were not guilty of willful
       and wanton conduct. See Lynch v. Board of Education of Collinsville Community Unit District
       No. 10, 82 Ill. 2d 415, 430-31 (1980) (prior to “powderpuff” football game, teachers
       conducted practice sessions, warned girls that football could be “ ‘rough,’ ” and advised them
       to wear mouth guards, but teachers did not provide any safety equipment). Accordingly, the
       evidence that Cunningham instituted several safeguards to prevent injuries shows that, at
       most, she took insufficient precautions. The fact that she did not take the additional step of
       requiring goggles does not establish a conscious disregard for her students’ safety. Thus,
       Cunningham’s decision not to require the students to use available safety equipment,
       standing alone, does not rise to the level of willful and wanton conduct.
¶ 19        Plaintiff next argues that Cunningham was aware that the ball could fly above players’
       waists and hit them in the eye. This fact, plaintiff argues, necessitated sending the issue of
       willful and wanton conduct to the jury. We reject this argument.
¶ 20        Illinois courts define willful and wanton conduct, in part, as the failure to take reasonable
       precautions after “knowledge of impending danger.” Id. at 429; Burke v. 12 Rothschild’s
       Liquor Mart, Inc., 148 Ill. 2d 429, 449 (1992) (willful and wanton conduct differs from mere
       negligence in that 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.’ ” (quoting Restatement (Second) of Torts
       § 500 cmt. g, at 590 (1965))); see also Miller v. General Motors Corp., 207 Ill. App. 3d 148,
       161 (1990). In this case, plaintiff failed to introduce any evidence at trial that Cunningham
       either knew or had reason to believe that a serious injury could occur as a result of students
       playing floor hockey. The students had played the same game with the same equipment on
       multiple occasions, and no student had been injured. Nevertheless, the appellate court
       majority below held that willful and wanton conduct could be found even though
       Cunningham had no “specific notice” of “a prior injury to a floor hockey player’s eye with
       the use of a safety ball.” 2016 IL App (1st) 150437, ¶ 23. While we agree with the appellate
       court that evidence of prior incidents need not involve the same specific injury as that
       suffered by plaintiff, here there was no evidence at all of prior injuries. Plaintiff did not
       present evidence of any other injuries suffered by anyone playing floor hockey under any
       circumstances.
¶ 21        To establish willful and wanton conduct in the absence of evidence of prior injuries,
       Illinois courts have required, at minimum, some evidence that the activity is generally
       associated with a risk of serious injuries. See Murray v. Chicago Youth Center, 224 Ill. 2d
       213, 246 (2007); Choice v. YMCA of McHenry County, 2012 IL App (1st) 102877, ¶¶ 72-80;
       Miller, 207 Ill. App. 3d at 161; Hadley v. Witt Unit School District 66, 123 Ill. App. 3d 19, 23
       (1984). For instance, in Murray, a student suffered a spinal cord injury while using a
       mini-trampoline during an extracurricular tumbling program. This court held that the
       defendants’ failure to take adequate safety precautions in light of their knowledge of the
       inherent dangers of the activity raised genuine issues of material fact on the question of
       willful and wanton conduct. Murray, 224 Ill. 2d at 246. We explained:
                     “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


                                                   -5-
               and that catastrophic injuries, including quadriplegia, can result from an improperly
               executed 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. Hence,
               genuine and material triable issues of fact exist in this case on the question of whether
               defendants are guilty of willful and wanton conduct. Under the circumstances, it was
               error for the appellate court to affirm summary judgment.” Id.
¶ 22       In another case, Hadley v. Witt Unit School District 66, 123 Ill. App. 3d 19 (1984), the
       plaintiff filed suit against a teacher and school district after being injured in a high school
       industrial arts class. On the day of the class, the students were supposed to be working on a
       woodworking assignment. Instead of working on the assigned project, plaintiff and three
       other boys attempted to pound a piece of scrap metal through a hole in an anvil. The teacher
       observed the boys’ activity but did not tell them to stop or instruct them to put on safety
       goggles. After about 20 minutes, a metal chip flew into plaintiff’s eye, causing trauma and
       visual impairment. Id. at 20. The appellate court held that the teacher’s failure to act after
       observing the students engaging in a “dangerous activity” could constitute willful and wanton
       conduct. Accordingly, the issue should have gone to the jury instead of being disposed of by
       summary judgment. Id. at 23.
¶ 23       In contrast to Murray and Hadley, there was no evidence presented at trial that floor
       hockey played with plastic hockey sticks and squishy balls is an obviously dangerous
       activity. Plaintiff failed to introduce evidence of any particular dangers associated with floor
       hockey that called for the use of protective eyewear by students. Thus, plaintiff failed to meet
       his burden of proving that defendants knew or had reason to know that he could be seriously
       injured from playing floor hockey without safety goggles. Under these circumstances,
       plaintiff’s claim that Cunningham was willful and wanton in neglecting to require safety
       goggles amounts to mere speculation, which is insufficient to establish a claim for willful and
       wanton conduct. See Choice, 2012 IL App (1st) 102877, ¶¶ 75, 79-80.
¶ 24       There was no evidence introduced at trial that defendants were aware of facts which
       would have put a reasonable person on notice of the risk of serious harm from the activity.
       See Lynch, 82 Ill. 2d at 429-30. This conclusion does not turn on a substantial factual dispute
       or an issue regarding the credibility of the witnesses or conflicting evidence. See Harris v.
       Thompson, 2012 IL 112525, ¶ 45. Viewing the evidence in the light most favorable to the
       plaintiff, we find that no jury could find for plaintiff on the issue of willful and wanton
       conduct. Id. ¶ 42. Therefore, the trial court did not err in directing a verdict for defendants on
       the issue of whether defendants were guilty of willful and wanton conduct in the exercise of
       their supervisory authority.1
¶ 25       Because we have held that the trial court properly directed a verdict in favor of
       defendants on the issue of supervisory immunity (745 ILCS 10/3-108 (West 2010)), we need

           We note that if Cunningham, the District’s employee, is immune from liability, the District is also
           1

       immune. See 745 ILCS 10/2-109 (West 2010) (“A local public entity is not liable for an injury resulting
       from an act or omission of its employee where the employee is not liable.”).

                                                      -6-
       not address defendants’ alternative argument that they were also entitled to a directed verdict
       on the basis of discretionary immunity (745 ILCS 10/2-201 (West 2010)).2

¶ 26                                        CONCLUSION
¶ 27       For the foregoing reasons, we hold that the trial court did not err in allowing defendants’
       motion for a directed verdict. We thus reverse the judgment of the appellate court and affirm
       the judgment of the circuit court.

¶ 28       Appellate court judgment reversed.
¶ 29       Circuit court judgment affirmed.




           2
            “Except as otherwise provided by Statute, a public employee serving in a position involving the
       determination of policy or the exercise of discretion is not liable for an injury resulting from his act or
       omission in determining policy when acting in the exercise of such discretion even though abused.” 745
       ILCS 10/2-201 (West 2010).

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