                                       2017 IL 120751



                                         IN THE

                                SUPREME COURT

                                             OF

                          THE STATE OF ILLINOIS




                                    (Docket No. 120751)

         EVAN BARR, Appellee, v. LAUREL CUNNINGHAM et al., Appellants.


                               Opinion filed March 23, 2017.



        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



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       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 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




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          ‘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




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       safety when she determined that the floor hockey equipment, together with the
       rules students were required to follow, was sufficient to prevent injuries.

¶ 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




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       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 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




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       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

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




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¶ 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 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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