Longfellow v. Corey

NO. 4-96-0460

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

BRETT LONGFELLOW, a Minor Child, by ) Appeal from
his Mother and Next Friend, HOLLY ) Circuit Court of
LONGFELLOW, and HOLLY LONGFELLOW, ) Champaign County
Plaintiffs-Appellants, ) No. 94L1715
v. )
J.D. COREY, TERRY NAPPER, and URBANA ) Honorable
SCHOOL DISTRICT NO. 116, ) John G. Townsend,
Defendants-Appellees. ) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In November 1994, plaintiff, Holly Longfellow, individ-
ually and as the mother and next friend of Brett Longfellow, a
minor, sued defendants, Urbana School District No. 116 (School
District), Terry Napper, and J.D. Corey, in an action for person-
al injuries. In May 1996, the trial court determined that defen-
dants were immune from liability pursuant to section 3-108(a) of
the Local Governmental and Governmental Employees Tort Immunity
Act (Act) (745 ILCS 10/3-108(a) (West 1992)) and dismissed
plaintiffs' second-amended complaint with prejudice. Plaintiffs
appeal from that dismissal, and we reverse and remand.
I. BACKGROUND
In February 1996, plaintiffs filed a second-amended
complaint alleging that on December 1, 1993, Brett (then eight
years old) was a student in an after-school child care program at
Wiley Elementary School in Urbana, Illinois. Defendant School
District operated the after-school program. The School District
employed defendant Napper as the site coordinator and defendant
Corey as a recreational leader for the program. The second-
amended complaint alleged that on December 1, 1993, Corey "di-
rected [Brett] to participate in a game of tag requiring [Brett]
to have a piece of cloth in his pant's back pocket and to be
pursued by [Corey], for the intended purpose of avoiding [Corey]
from removing the piece of cloth from [Brett's] pant's back pock-
et." At Corey's direction, Brett ran backward across the gymna-
sium floor while Corey ran toward him. The complaint further
alleged that (1) Corey was "significantly" taller and faster than
Brett; (2) Corey had a "longer foot span and longer gait"; (3)
Corey was "running full speed facing straight at" Brett as Brett
ran backward, mirroring Corey's movements; (4) Corey was able to
change direction more quickly than Brett; and (5) Brett was
pushed beyond his normal capabilities by Corey's actions. The
complaint further alleged that "as a direct and proximate result"
of Corey's conduct as an active participant in the game, Brett
tripped while running backward and fell, suffering injuries to
his mouth and teeth.
Defendants moved to dismiss the second-amended com-
plaint pursuant to section 2-619(a)(9) of the Code of Civil
Procedure (735 ILCS 5/2-619(a)(9) (West 1992)). They claimed
that "all counts of the [p]laintiff's [sic] second[-]amended com-
plaint are based upon allegations that the [d]efendants failed to
properly supervise the activities" of Brett, and therefore,
section 3-108(a) of the Act immunized them from liability from
any claim of negligence or wilful or wanton conduct based on
supervision of an activity.
In May 1996, after considering the parties' motions and
arguments, the trial court granted defendants' motion and dis-
missed the second-amended complaint with prejudice. The court
specifically found that "there is no qualitative difference
between the 'participatory' activity argued by [p]laintiff[s] to
be present here and the activities involved in supervising encom-
passed by [section 3-108(a) of the Act]."
II. SECTION 3-108(a) IMMUNITY
Plaintiffs argue that section 3-108(a) of the Act does
not provide immunity in this case where "[t]he cause of action in
question rests squarely on the active participation by an adult
in a children's game, not on a failure to adequately supervise a
children's game." Plaintiffs contend that section 3-108(a) of
the Act is specifically limited to situations in which a failure
to "oversee" an activity results in injury and does not extend to
situations in which "participatory" conduct proximately causes
the injury. In response, defendants argue that even though the
second-amended complaint did not specifically allege a "failure
to supervise," the facts alleged therein constitute nothing more
than supervision.
The purpose of a section 2-619 motion to dismiss is to
provide a means to dispose of issues of law or easily proved
issues of fact. Kedzie & 103rd Currency Exchange, Inc. v. Hodge,
156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993). In the present
case, the ground advanced for dismissing the complaint is that
the claims asserted therein are barred by a defense that com-
pletely negates the asserted causes of action. Payne v. Lake
Forest Community High School District 115, 268 Ill. App. 3d 783,
784-85, 644 N.E.2d 835, 836 (1994); see 735 ILCS 5/2-619(a)(9)
(West 1992). The trial court should grant the motion and dismiss
the complaint if, after construing the allegations in the light
most favorable to the plaintiff, no set of facts can be proved
which would entitle the plaintiff to recover. Payne, 268 Ill.
App. 3d at 785, 644 N.E.2d at 836. When reviewing the propriety
of the trial court's decision to grant a section 2-619 motion,
the reviewing court must accept as true all well-pleaded facts
alleged in the complaint. Payne, 268 Ill. App. 3d at 785, 644 N.E.2d at 836. We review the trial court's ruling on the
defendants' section 2-619 motion de novo. Payne, 268 Ill. App.
3d at 785, 644 N.E.2d at 836.
In the present case, defendants relied upon the immuni-
ty provided by section 3-108(a) of the Act, which reads as
follows:
"(a) Except as otherwise provided by
this Act and subject to subdivision (b) nei-
ther a local public entity nor a public em-
ployee is liable for an injury caused by a
failure to supervise an activity on or the
use of any public property." 745 ILCS 10/3-
108(a) (West 1992).
The supreme court recently discussed section 3-108 of the Act in
Barnett v. Zion Park District, 171 Ill. 2d 378, 388-89, 665 N.E.2d 808, 813 (1996), as follows:
"In interpreting section 3-108, our
primary goal is to ascertain and give effect
to the intention of the legislature. We seek
the legislative intent primarily from the
language used in the Tort Immunity Act. We
evaluate the Act as a whole; we construe each
provision in connection with every other
section. [Citation.] If we can ascertain
the legislative intent from the plain lan-
guage of the Act itself, that intent must
prevail, and we will give it effect without
resorting to other interpretive aids. [Cita-
tion.] We must not depart from the plain
language of the Act by reading into it excep-
tions, limitations, or conditions that con-
flict with the express legislative intent."
The Act itself does not define the term "supervise" or
the phrase "failure to supervise." Webster's Third New Interna-
tional Dictionary defines "supervise" as follows:
"[T]o coordinate, direct, and inspect contin-
uously and at first hand the accomplishment
of: oversee with the powers of direction and
decision the implementation of one's own or
another's intentions." (Emphasis added.)
Webster's Third New International Dictionary
2296 (1993).
The Oxford English Dictionary defines "supervision" as "[g]eneral
management, direction, or control; oversight, superintendence."
Oxford English Dictionary 245 (2d ed. 1989). Further, the Oxford
English Dictionary defines "direct" in the following manner:
"[k]eep in right order; to regulate, control, govern the actions
of *** [t]o cause (a thing or person) to move *** towards a
place." (Emphasis added.) Oxford English Dictionary 701 (2d ed.
1989). One author has defined "supervision" (in the context of
school tort liability) as "the general conduct of the teacher or
other school personnel, and thus it includes negligent acts
inflicting or resulting in injury." Annotation, Tort Liability
of Public Schools and Institutions of Higher Learning for Inju-
ries Resulting from Lack or Insufficiency of Supervision, 38
A.L.R. 3d 830, 833 (1971). Further, in its ordinary usage,
supervision often involves some active participation (such as
when physical education instructors, teachers aides, or recre-
ational leaders provide hands-on instruction to students or
referee games devised for students).
Giving the statutory language its plain and ordinary
meaning, we conclude that supervision extends beyond passive
oversight of an activity and includes direction, teaching,
demonstration of techniques, and--to some degree--active partici-
pation in an activity while supervising it. Because supervision
often involves some level of active participation, it would be
illogical to provide immunity to a public employee for passively
overseeing an activity, yet withhold immunity the moment such an
employee undertakes any active role in an activity that employee
is supervising. However, supervision does not encompass active
participation that rises to the level--as here--of intense one-
on-one competition in the form of a game or activity that has a
winner and a loser. Under such circumstances, the public employ-
ee clearly has abandoned the role of supervisor and become an
equal competitor with the participant.
For example, within the scope of supervision, a wres-
tling coach may physically demonstrate a particular technique or
hold on a wrestler. However, if that wrestling coach partici-
pates in a one-on-one competition with a student wrestler, the
coach abandons his role as supervisor and becomes an equal
competitor with his student wrestler. Within the supervisory
role, a basketball coach or instructor may teach her players or
students how to run a fast break by actively participating in the
fast break drills. But if that basketball coach or instructor
participates in a competitive one-on-one game with one of her
players or students, she abandons the supervisory role. Further,
within the scope of supervision, a football coach may hold a
blocking sled for players or demonstrate blocking techniques.
However, if that football coach engages in a head-to-head block-
ing or tackling competition with a player, he abandons the role
of supervisor.
Such an interpretation finds support in appellate court
decisions concluding that section 3-108(a) of the Act provides
immunity not only for complete "failure to supervise," but also
for inadequate or improper supervision, including negligent or
willful or wanton conduct once supervision is undertaken. In Koh
v. Village Greens, 158 Ill. App. 3d 226, 227, 511 N.E.2d 854, 855
(1987), the plaintiff sought recovery for injuries sustained when
she was struck by a golf ball while on a public golf course owned
and operated by a village. The plaintiff alleged, in part, that
she was injured as a result of the defendant's conduct in manag-
ing the crowd at the first tee where defendant directed partici-
pants and spectators to stand on the golf course where errant
golf balls could reasonably strike those individuals. Koh, 158
Ill. App. 3d at 228, 511 N.E.2d at 855. The trial court granted
the defendant's motion to dismiss one count of the plaintiff's
complaint, finding that section 3-108(a) of the Act immunized the
village from liability. Koh, 158 Ill. App. 3d at 228, 511 N.E.2d
at 855. On appeal, the plaintiff conceded that a public entity
and its employees have immunity from liability for a failure to
undertake supervision of activities on public property, but
argued that such immunity does not extend to negligent conduct
once supervision is undertaken. Koh, 158 Ill. App. 3d at 228-29,
511 N.E.2d at 855. The Second District Appellate Court rejected
the plaintiff's argument, concluding that "the alleged negligent
conduct of the defendant village in supervising and regulating
the use of its public golf course is immune from the liability"
pursuant to section 3-108(a) of the Act. (Emphasis added.) Koh,
158 Ill. App. 3d at 229, 511 N.E.2d at 856; see also Ramos v.
City of Countryside, 137 Ill. App. 3d 1028, 1032, 485 N.E.2d 418,
421 (1985) (where the court held that section 3-108(a) of the Act
was applicable "to shield the city *** from liability for an
asserted failure to adequately supervise a summer recreation
program held on public property"); Payne, 268 Ill. App. 3d at
784, 644 N.E.2d at 836.
In the present case, Corey (the adult recreational
leader) directed eight-year-old Brett to participate in a game of
tag in which Corey ran full tilt toward Brett as Brett ran
backward attempting to avoid him. Corey and Brett were engaged
in an intense one-on-one competition in an activity that has a
winner and a loser. Under these circumstances, Corey abandoned
his role as supervisor of the activity and became an equal
competitor with Brett. Accordingly, we hold that the trial court
erred by determining that defendants were immune from liability
pursuant to section 3-108(a) of the Act and dismissing plain-
tiffs' second-amended complaint with prejudice.
III. CONCLUSION
For the reasons stated, we reverse and remand for
further proceedings consistent with the views expressed herein.
Reversed and remanded.
GARMAN and KNECHT, JJ., concur.