Section 3-108 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act provides that local public entities and their employees are immune from tort liability caused by a failure to supervise an activity on public property except where their failure to supervise rises to a level of willful and wanton conduct. 745 ILCS 10/3-108(a). So does that exception include a school employee’s failure to require use of safety equipment which was available during a students’ floor hockey game? That’s the question which the Illinois Supreme Court agreed to answer in the closing days of their September term, allowing a petition for leave to appeal in Barr v. Laurel Cunningham and Township High School District 211, a case from Division Three of the First District.

Barr arose from an injury during a physical education class at a high school. At the time of the injury, the plaintiff had played floor hockey during the class approximately eight to ten times. The teacher prohibited high sticking, fighting and checking. Violations were punishable by immediate removal from the game. She had observed the hockey ball (used as a safer alternative to a hockey puck) flying above students’ waists during play, but had never seen a student hit in the face with a ball or a stick. The teacher was aware that safety goggles were available in the equipment closet where the hockey balls were kept, but the goggles were not required, and she was uncertain whether there were enough to go around for all the students. Both the teacher and her supervisors testified that the teacher had discretion to make and enforce the rules for any sport played during class. At trial, the Circuit Court granted the defendants’ motion for directed verdict on the grounds that plaintiff had failed as a matter of law to prove willful and wanton conduct.

The Appellate Court reversed. The Court noted that the Act defined willful and wanton conduct as a course of action which demonstrates “an utter indifference to or conscious disregard for the safety of others or their property.” 745 ILCS 10/1-210. On appeal, the plaintiff argued that the teacher’s mere failure to use the safety goggles – an available safety precaution – was enough to create a triable issue of fact on willful or wanton conduct. The teacher testified that she did not believe that serious injury could occur as a result of a student being struck in the eye, but the Appellate Court pointed out that the teacher did not suggest that no injury whatsoever could occur, nor did she define what a “serious” injury was. “This decision making process involves the sort of conduct that a jury could find amounts to a conscious disregard for the safety of her students,” the Court found. The defendants argued that no finding for willful or wanton conduct was possible absent proof of a previous similar accident, but the Appellate Court disagreed.

In the alternative, the defendants argued that they were immune under Section 2-201 of the Act, which bars liability for a “public employee serving in a position involving the determination of policy or the exercise of discretion.” Section 2-201 immunizes even willful and wanton conduct. The Appellate Court disagreed, finding that the teacher had not decided not to require the safety goggles as a policy decision within the meaning of the statute, nor had she balanced competing interests and made a judgment call in reaching that decision.

Presiding Justice Mason dissented, writing that a mere failure to take sufficient precautions was not, as a matter of law, willful and wanton conduct.

We expect Barr to be decided within eight to ten months.