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A student falls and is injured while running laps in gym class.

A student athlete is injured during horseplay while at another school for a sporting event.

A child is injured while crossing a street where a school crossing guard is on duty.

Is your school district liable?

These cases would likely be covered by the Illinois Tort Immunity Act (745 ILCS 10/1-101 et seq.) and the case law interpreting this Act. In 1965 the Act was enacted to limit the liability of local governmental units, including schools, with an extensive list of immunities based on specific governmental functions. In the years since the Act was created, numerous changes have been made to the statute and a substantial number of court rulings have shed light on its application.

Besides the Tort Immunity Act, in assessing potential risks and responding to threatened or actual litigation, school districts should be aware of other statutes that provide specific immunities or limitations, such as the Tort Liability of Schools Act, the School Code, the Recreational Use of Land and Water Areas Act and the Baseball Facility Liability Act.

The Tort Immunity Act provides immunities and defenses to "local public entities and public employees." Its purpose is to protect them from liability for their acts as part of the operation of government.

The Act makes certain that in granting specific immunities to these government actors it does not take away any defense or immunity that is available to a private person. It is important to note, however, that the Act applies only to local public entities and public employees. It does not apply to the state or any state agency, university or other type of department or division.

An essential element of assessing risks and litigation is determining who is actually covered by these immunities and defenses. The Act provides a list of definitions for a "local public entity" which includes: school districts, school boards, educational service regions, regional board of school trustees, community college districts, community college boards and all other local governmental bodies. The "public employee" definition includes a present or former officer, or member of a board, commission or committee, agent, volunteer, servant or employee, whether or not compensated. It does not, however, include an independent contractor.

School officials must be aware that although the Act provides significant immunity it does not eliminate responsibility in other areas of the law. For example, the Act does not bar claims based upon the Civil Rights Act nor does it have any effect on potential liability based on contract or workers' compensation law.

Perhaps the most important protection available under the Act pertains to property used for recreational purposes. The applicable provision protects a local public entity or public employee from liability unless the court finds that "willful and wanton conduct" directly caused the injury. "Willful and wanton conduct" is defined as "a course of action which shows an actual or deliberate intent 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 contrasts with "negligent" action, which is not intentional or conscious.

Illinois courts have applied the act to several areas, including an outdoor basketball court, a baseball diamond, and football field, and playground equipment.

If anyone -- student or visitor -- is injured on school property, the school district's liability or immunity depends in part upon the nature of the property where the injury occurred. If the district intended or permitted the property to be used for recreational purposes, then the district will not liable unless the injured person can show that the school district's conduct was "willful and wanton" in nature.

It would seem only natural to consider the school gym as a place that has a recreational purpose. After a recent Illinois Appellate Court decision, however, school officials would be wise to take a second look at the use of their gym. In that case, a thirteen year old slipped, fell and was hurt while running laps in a gym class. He sued the district, alleging that the school district was either negligent or willful and wanton in their actions. The student said he fell because volleyball nets were placed so that the students had to run underneath them and also because the floor was warped, uneven and defective.

The trial court dismissed the lawsuit based on the Tort Immunity Act, but the Appellate Court took a different view. The court stated that "compulsory physical education and recreation have different aims: whereas the former seeks to instruct, the latter aspires merely to amuse. Accordingly, although some students may enjoy gym class, it cannot be said to be recreational."

The court then sent the case back to the trial court for further examination of whether the gym was encouraged, permitted or intended to be used for recess, extracurricular events or other recreational common, non-compulsory activities. If so, the Tort Immunity Act will apply. If not, it will not.

The lesson for school officials: make sure your gymnasium, football fields, baseball diamonds, swimming pools and so forth are used for activities other than compulsory physical education classes. Be sure you permit extracurricular events and other non-compulsory recreational activities in these areas.

Other key sections of the law provide immunities in the following situations:

1. Injury sustained in the classroom, lunchroom and on school field trips. The Act provides immunity for failure to supervise an activity on, or for the use of, any public property. The application of this section is not only to that property owned by the governmental entity in question but to any public property. For example, suppose a student athlete is injured during "horseplay" while at another school for a sporting event. The immunity to the visiting school still applies because the location of the injury is on public property.
2. Injuries in swimming pools. Part of the Act addresses specifically the use of public property for swimming. The Act requires that the entity or employee post a notice of hours for use on the premise. The Illinois Supreme Court recently ruled that this section of the Act unconditionally grants immunity unless the injuries were proximately caused by a failure to provide supervision during stated pool hours. For example, if a student is injured during swimming class, the school district is not liable as long as some element of supervision was provided.
3. School safety patrol. The Act states that a public employee is not liable for an injury related to the organization, maintenance and operation of a school safety patrol as authorized by a specific section of the Tort Immunity Act. Interestingly, it appears that there are no court cases interpreting this section at this time.

The Tort Immunity Act is an important part of the overall plan for protecting your school district and its employees from tort liability. The Act, along with the other various statutes which provide specific immunities, should be used to both assess potential risks and to respond to threatened or actual litigation.

The authors are attorneys with Quinn, Johnston, Henderson & Pretorius, Chartered, Peoria, Illinois; 309/674-1133.