COURT CHANGES DIRECTION ON IMMUNITY FOR TRAMPOLINE CASES

May 25, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Rejecting a 1998 ruling, the Illinois Appellate Court concluded that the Tort Immunity Act does not bar a complaint alleging that the plaintiff was injured by willful or wanton conduct during a hazardous recreational activity.

Despite winning an important victory on this crucial question of law, a catastrophically injured teenager lost the war because the reviewing court also concluded that his complaint failed to allege facts that add up to willful or wanton conduct. Murray v. Chicago Youth Center, 2004 WL 834725 (1st Dist., April 16).

Young Ryan Murray suffered horrifying injuries in a mini-trampoline accident during an after-school tumbling program.

The Cook County Circuit Court dismissed a negligence claim, concluding that the defendants were shielded by sections 2-201 and 3-108(a) of the Local Governmental and Governmental Employees Tort Immunity Act.

Section 3-108(a) states, "Except as otherwise provided by this act, and subject to subdivision (b), neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property."

And section 2-201 reads, "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.' "

Here are some highlights of Justice Ellis E. Reid's opinion (with various omissions not noted in the quoted text):

"Since Murray was injured while trampolining on public property, the defendants aver that their alleged failure to properly supervise the activity is absolutely immunized under section 3-108(a) of the act. Additionally, the defendants maintain that [the instructor's] decision not to use a harness, safety belt or appropriate landing mats was a policy decision or an exercise of his discretion, which is also afforded immunity under section 2-201 of the act.

"In response, the plaintiffs contend that since trampolining is a hazardous activity as defined by section 3-109(b)(3) of the act, the defendants are liable pursuant to section 3-109(c)(2) of the act because their willful and wanton actions were the proximate cause of Murray's injury."

Section 3-109(a) of the act states, "Neither a local public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity."

Plus, section 3-109(b)(3) states: "As used in this section, hazardous recreational activity means a recreational activity conducted on property of a local public entity which creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury to a participant or a spectator." And, "Hazardous recreational activity also means ... surfing, trampolining, tree climbing."

But then there's section 3-109(c)(2), which states:

"(c) Notwithstanding the provisions of subsection (a), this section does not limit liability which would otherwise exist for any of the following:

"(2) An act of willful and wanton conduct by a public entity or a public employee which is a proximate cause of the injury."
"In Barnett v. Zion Park District, 171 Ill.2d 378 (1996)," Reid recounted, "the Illinois Supreme Court visited the question of whether section 3-108(a) contains an exception for willful and wanton behavior. In Barnett, the plaintiff brought suit against a park district for the drowning death of her son in a park district swimming pool. The plaintiff argued that section 3-108 of the act does not establish unconditional immunity but, rather, provides an exception for willful and wanton misconduct.

"In finding that section 3-108 provides immunity for willful and wanton misconduct, the Barnett court stated: 'The plain language of section 3-108 is unambiguous. That provision does not contain an immunity exception for willful and wanton misconduct. Where the legislature has chosen to limit an immunity to cover only negligence, it has unambiguously done so. Since the legislature omitted such a limitation from the plain language of section 3-108, then the legislature must have intended to immunize liability for both negligence and willful and wanton misconduct.'

"Furthermore, the specific issue of whether section 3-109(c)(2) provides an exception to section 3-108(a) has been visited in Johnson v. Decatur Park District, 301 Ill.App.3d 798 (1998). In Johnson, a student and his parents sued the city park district, the coach of his tumbling team and the Young Women's Christian Association after the student sustained a broken neck while attempting a front flip from a mini-trampoline during team practice. The student was taking a tumbling class at the YWCA. The student was also a member of the Power Tumblers, a team that was run by the park district. The mini- trampoline was also owned by the park district, and the park district provided the coach of the team. At the time of his injury, the student was practicing with the Power Tumblers at the YWCA.

"The plaintiffs argued that the defendants were not afforded immunity under section 3-108(a) of the act. In particular, the plaintiffs argued that section 3-109(c)(2) provided an exception for willful and wanton behavior.

"In disagreeing with this argument, the Johnson court stated: 'Plaintiffs argue that section 3-109(c)(2) of the act is a limitation on the absolute immunity granted by section 3-108(a). Their argument is that use of a mini- trampoline is a hazardous recreational activity and that willful and wanton conduct is not immunized when it occurs in connection with such activities. They cite no case so holding. They argue that the plain language of section 3- 109 compels this conclusion.

" 'As stated, in this case, plaintiffs have alleged that the park district failed to (a) provide a safety harness or belt, (b) warn of the dangers associated with using the mini-trampoline and mats, (c) provide adequate spotters, (d) warn and instruct participants concerning the dangers associated with using a mini-trampoline and mats and of the known serious risk of severe spinal cord injury, (e) properly position the mats to prevent gaps, and (f) provide a safe coach.

" 'The gist of these allegations is that the park district, through its employee, Park, failed to warn [plaintiff] of the dangers of spinal cord injury attendant to use of the mini-trampoline and to adequately supervise activities performed on the mini-trampoline given the dangers associated with its use. Thus, section 3-108(a) applies to immunize this conduct. Plaintiffs do not argue otherwise; they seek to avoid the immunity granted in that section by invoking section 3-109(c)(2) of the act.

" 'However, plaintiffs have misconstrued the import of section 3-109(c)(2) of the act. That subsection does not itself create an exception to the absolute immunity granted by section 3-108(a) of the act. It simply states that nothing in section 3-109(a) of the act limits liability "which would otherwise exist" for an act of willful and wanton conduct by a public entity or employee that is a proximate cause of injury. Thus, if section 3-108 of the act does not itself contain an exception for willful and wanton conduct in connection with supervisory activities, section 3-109(c)(2) of the act does not apply to provide such an exception, simply because the activity involved may be a hazardous recreational activity.

" 'Section 3-108(a) of the act contains no such exception; its plain language provides immunity for supervisory activities, regardless of whether the conduct is merely negligent or willful and wanton. We note section 3-109(c)(2) of the act also provides that nothing in that section creates a duty of care or basis of liability for personal injury or damage to personal property. We therefore reject plaintiffs' argument that section 3-109(c)(2) of the act provides an exception to the absolute immunity granted by section 3-108(a) of the act.'

"We disagree with the holding reached in Johnson," Reid and his colleagues explained. "In our opinion, the Johnson court fails to sufficiently address the '[e]xcept as otherwise provided by this act' language which appears in section 3-108(a). In our view, Epstein v. Chicago Board of Education, 178 Ill.2d 370 (1997), provides guidance with regard to situations where the immunity that is provided in certain sections of the act, such as sections 3- 108(a) and 2-201, is overridden due to other sections of the act.

"In Epstein, the court was dealing with the issue of whether section 3- 108(a) of the act ever provides local governmental units with immunity from Structural Work Act claims. In answering this question, the Epstein court noted that there were situations in which there were exceptions to the immunity provided in section 3-108(a).

"The Epstein court wrote: 'A further evaluation of section 3-108(a), along with the Tort Immunity Act as a whole, also supports our rejection of the plaintiff's argument. Section 3-108(a) grants immunity "[e]xcept as otherwise provided by this act." Accordingly, section 3-108(a) by its own terms provides that the only exceptions to its grant of immunity are those set forth elsewhere in the Tort Immunity Act.

" 'Our review of the entire Tort Immunity Act reveals that it provides exceptions for liability under the Workers' Compensation Act and the Workers' Occupational Diseases Act, (d)), among other things. The Tort Immunity Act, however, nowhere makes an exception for liability under the Structural Work Act or for construction activities. Nor does the Tort Immunity Act contain any provision limiting section 3-108(a)'s application to only recreational or scholastic activities. Consequently, none of the asserted exceptions or limitations exist.'

"In our opinion," Reid recounted, "Epstein provides support for the conclusion that section 3-109(c)(2) provides an exemption to section 3-108(a) and furthermore to section 2-201, which contains similar exception language, for willful and wanton behavior with regards to hazardous activities.

"Here, Murray was engaged in a hazardous activity as defined by section 3- 109(b)(3) when he was injured. Section, 3-109(c)(2) provides an exception to the immunity that is otherwise afforded under the act, if a willful and wanton act by a public entity or employee is the proximate cause of an injury to a person engaged in a hazardous activity.

"We must reiterate, we evaluate the act as a whole; we construe each provision in connection with every other section. Section 3-108(a) provides immunity for a failure to supervise an activity on or the use of any public property. The following section of the act, section 3-109, provides immunity with relationship to any person who participates in a hazardous activity. However, an individual who is participating in a hazardous activity can bring suit if the public entity or employee commits a willful and wanton act which proximately causes that person to be injured.

"Consequently, in this particular situation, Murray can bring suit because section 3-109(c)(2) provides an exception to the immunity otherwise provided by the act. When a public entity or employee's willful or wanton misconduct proximately causes an injury to an individual participating in a hazardous activity, the act does not provide immunity.

"We believe that the Johnson decision was erroneous because it fails to address the significance of the specific exception language found in section 3- 108(a)."

Having won a big battle on tort immunity, "The plaintiffs maintain that the board's failure to provide certain safety equipment, particularly a harness, a safety belt and appropriate landing mats, amounted to willful and wanton behavior for which the defendants are liable."

However, Reid concluded, the dismissal "was correct because the defendant's alleged behavior was not willful and wanton."

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