Willful, Wanton Conduct and Governmental Immunity

Ryan Murray was an eighth-grader at Bryn Mawr Elementary School on Chicago’s Southeast Side.

The chubby 13-year-old signed up for an extracurricular tumbling class during lunch period in the school’s main building with an instructor hired by the Chicago Board of Education from Chicago Youth Centers.

One of the pieces of equipment used was a mini-trampoline that had been purchased by the board. In December 1992, Ryan took his turn jumping on the mini-trampoline that had been set in place by the instructor, James Collins. Collins did not require spotters while others were jumping, and the plaintiff’s expert indicated that the padding for such exercises was insufficient.

At the end of the class, the instructor allowed free time for the students to do whatever they wanted, without instruction or guidance. Ryan jumped off the mini-trampoline into the air, attempting to perform a flip, and landed on his upper chest and neck, partially on the mat and partially on the gym floor. He sustained injuries that rendered him a quadriplegic.

On appeal, the Illinois Supreme Court decided that, as a matter of law, the conduct of the defendants did not amount to willful and wanton, despite previous Illinois precedent that indicated that question generally is decided by a jury. Murray v. Chicago Youth Center, Ill.2d (No. 99457, decided July 5, 2006). A rehearing on the matter was granted Sept. 25, 2006.

At an unusual second oral argument, the plaintiffs argued that the majority in Murray defined willful and wanton inconsistently with previous court rulings, as well as the statutory definition in place for decades, pointing out that it has been defined as "recklessness or carelessness when it could have been discovered by the exercise of ordinary care." Schneiderman v. Interstate Transit Lines, Inc., 394 Ill.569 (1946).

The plaintiff additionally argued that Illinois counts have defined the term since 1961 identically to the language in the Illinois Pattern Jury Instruction (Civil, No. 14.01) that was later codified in the Tort Immunity Act, 745 ILCS 10/3-108(a). Yet, the majority decided to adopt what the plaintiff termed a "novel" approach and limited recovery for willful and wanton misconduct against governmental entities to "quasi-intentional conduct."

As Justice Thomas L. Kilbride noted in a vigorous dissent, the court has found before that "in some instances, willful and wanton conduct may be only degrees more than ordinary negligence ‘citation omitted]." A new decision on the matter is expected from the court soon.

Generally, teachers and coaches are required to exercise reasonable care in their supervision of students. Immunity, though, may apply if the activity involves a "discretionary policy determination" in relation to a governmental function. Kain v. Rockridge Community Unit School District, 117 Ill.App.3d 681, 453 N.E.2d 118 (3d Dist. 1983).

This could mean that a physical education class or school athletic activity mandated by the state may be immune from liability, but several exceptions to such immunity have been applied in this state on a number of grounds, one of the most notable being willful and wanton conduct.

Courts in Illinois have been long made a distinction between negligent conduct and that defined as willful and wanton conduct. In Murray, Justice Kilbride, along with two other justices, dissented, inter alia, on the grounds that the issue of willful and wanton was a factual determination that could not be determined on a motion for summary judgment. He stated that sufficient facts had been pleaded in the case for the issue to be decided by a jury.

Although the court’s majority recognized that "the tumbling class which Ryan participated was run haphazardly, that Collins was not a qualified trampoline teacher, and that defendants failed to provide the level of supervision and equipment that would have made the class safer," the court, nonetheless, in the first instance, found that amounted to "nothing more than negligence."

In Murray, although the child might have done a few jumps from the mini-trampoline prior to the fateful one, it is clear he did not have an appreciation of the risks associated with the equipment, nor did the instructor explain to the students the enormous potential dangers of such a piece of equipment.

As was argued before the new court in November, the case of Ryan Murray was not an accident or a mistake. Instead, the plaintiff’s attorneys likened it to the defendants allowing a child to play with a loaded gun.

Certainly, an instructor hired to supervise and teach the children in a hazardous activity should convey to the students the need to be careful, but he should also take proper and necessary precautions such as trained spotters, sufficient padding, and adequate qualified supervision in the area, not to mention the follow-up care required after the failed maneuver that would include not rolling over the child with a suspected head and neck injury.

Hopefully, the court will clarify this issue in its decision that is expected shortly, not only for the sake of Ryan Murray, but also for all Illinois courts in deciding willful and wanton conduct involving the conduct of governmental employees.