
    Laszlo and Adel KARALYOS, citizens of Canada, individually and as parents of Ann-Claire Karalyos, a minor, Plaintiffs, v. BOARD OF EDUCATION OF LAKE FOREST COMMUNITY HIGH SCHOOL DISTRICT 115, et al., Defendants.
    No. 10 C 2280.
    United States District Court, N.D. Illinois, Eastern Division.
    March 9, 2011.
    
      Luke Parrish Hajzl, Law Office of Luke P. Hajzl, Chicago, IL, for Plaintiffs.
    Stephen David Erf, Michael T. Graham, McDermott, Will & Emery LLP, Chicago, IL, for Defendants.
   MEMORANDUM OPINION AND ORDER

JAMES B. ZAGEL, District Judge.

I. OVERVIEW

Plaintiff, thirteen-year-old Ann-Claire Karalyos, a citizen of Canada, filed a nine-count complaint after suffering spinal injuries when she was instructed to dive into a pool while attending a swimming and diving program at Lake Forest High School. Lake Forest High School now moves to dismiss Plaintiffs claims pursuant to Rule 12(b)(6) alleging that as a municipal corporation it, as well as its employees, are immune from liability under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq. For the following reasons; Defendant’s motion to dismiss is denied.

II. STANDARD OF REVIEW

To state a claim under federal notice pleading standards, all the complaint must do is set forth a “short and plain statement of the claim showing that the pleader is entitled to relief....” Fed. R. Civ. P. 8(a)(2). Factual allegations are accepted as true and need only give “fair notice of what the ... claim is and the grounds upon which it rests.” E.E.O.C. v. Concentra Health Serv., Inc., 496 F.3d 773, 776-77 (7th Cir.2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007). However, the plaintiffs “allegations, [must] show that it is plausible, rather than merely speculative, that he is entitled to relief.” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir.2008). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1945-50, 173 L.Ed.2d 868 (2009). Legal conclusions, unsupported by alleged underlying facts, are not entitled to the “assumption of truth.” Id. at 1951. The application of the standard is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir.2009), quoting Iqbal, 129 S.Ct. at 1950.

III. DISCUSSION

Defendants contend that the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq (“Tort Immunity Act” or “Act”), shields them from liability and requires a dismissal of Plaintiffs Amended Complaint.

The Illinois legislature enacted the Tort Immunity Act to protect local public entities from liability arising from the operation of government. 745 ILCS 10/1-101, et seq; Arteman v. Clinton Cmty. Unit Sch. Dist. No. 15, 198 Ill.2d 475, 261 Ill. Dec. 507, 763 N.E.2d 756, 760 (2002). The Act did not create new duties but instead, codified those duties already existing at common law and provided immunities for certain governmental activities. In re Chicago Flood Litig., 176 Ill.2d 179, 223 Ill.Dec. 532, 680 N.E.2d 265, 271 (1997) (“[Gjovernmental units are liable in tort on the same basis as private tortfeasors unless a tort immunity statute imposes conditions upon that liability.”).

A court must therefore determine if a duty is owed and only then whether the activity is protected by the Act. Arteman, 261 Ill.Dec. 507, 763 N.E.2d at 760. Because the Act was enacted in derogation of common law, it should be strictly construed. Van Meter v. Darien Park Dist., 207 Ill.2d 359, 278 Ill.Dec. 555, 799 N.E.2d 273, 279 (2003). As a federal judge sitting in diversity I apply the substantive law of Illinois, as I believe the highest court in the state would apply it. Ass’n Benefit Servs., Inc. v. Caremark RX, Inc., 493 F.3d 841, 849 (7th Cir.2007).

The Illinois Supreme Court has determined that governmental entities operating swimming pools or public bathing areas owe a common law duty of reasonable care to its users. Barnett v. Zion Park Dist., 171 Ill.2d 378, 216 Ill.Dec. 550, 665 N.E.2d 808, 812 (1996). Having established that a duty is owed, I must now determine whether the Act shields Defendants from liability. Defendants assert that Sections 2-201, 3-106, and 3-108 of the Act shield them from liability.

A. Discretionary Policy Decisions

Defendants contend that Sections 2-201 and 2-109 of the Tort Immunity Act, which provide immunity for discretionary policy decisions, prevent the imposition of liability. Section 2-201 states:

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.

745 ILCS 10/2-201 (West 2010).

In addition, Section 2-109 states “[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.” 745 ILCS 10/2-109 (West 2010). These two sections have been termed the “discretionary immunity doctrine.” Chicago Flood Litig., 223 Ill.Dec. 532, 680 N.E.2d at 272.

To be immune from suit pursuant to Section 2-201 an act must be both an act of discretion as well as a policy decision. See Harinek v. 161 N. Clark St. Ltd. P’ship, 181 Ill.2d 335, 230 Ill.Dec. 11, 692 N.E.2d 1177, 1181 (1998) (“[I]mmunity will not attach unless the plaintiffs injury results from an act performed or omitted by the employee in determining policy and in exercising discretion.” (emphasis in original)). A policy decision is one that “require[s] the municipality to balance competing interests and to make a judgment call as to what solution will best serve each of those interests.” Id., 230 Ill.Dec. 11, 692 N.E.2d at 1181 (citations omitted). In contrast, governmental activities are outside the immunity provided by the Act when they are ministerial in nature. See Chicago Flood Litig., 223 Ill.Dec. 532, 680 N.E.2d at 272 (“Official duty is ministerial, when it is absolute, certain and imperative, involving merely the execution of a set task, and when the law which imposes it, prescribes and defines the time, mode and occasion for its performance with such certainty, that nothing remains for judgment or discretion.” (citations omitted)).

In determining whether an act is a discretionary policy decision or simply a ministerial one, courts have examined the extent to which the government employee had to balance competing interests. See e.g., Arteman, 261 Ill.Dec. 507, 763 N.E.2d at 764 (finding that the “decision not to provide rollerblade safety equipment was a discretionary policy determination” because it involved balancing the costs of the equipment against student safety); Harinek, 230 Ill.Dec. 11, 692 N.E.2d at 1181-82 (holding that a fire marshal’s decisions during a fire drill involved “balancing] various interests which compete for the time and resources of the department, including the interests of efficiency and safety”); Snyder v. Curran Twp., 167 Ill.2d 466, 212 Ill.Dec. 643, 657 N.E.2d 988, 993 (1995) (determining that the placement of road signs was a ministerial activity because the task was “preformed under a given set of facts in a prescribed manner”); Torres v. City of Chicago, 123 F.Supp.2d 1130, 1134 (N.D.Ill.2000) (determining that the decision of police officers not to contact an ambulance was a ministerial decision).

Here, there is no evidence that the decision to instruct Plaintiff to dive into a pool required the balancing of competing interests. Accepting the allegations contained in the complaint as true, it is improbable that Defendants were required to engage in policy calculations. It cannot be assumed that the decision of where and when to dive required balancing of policy considerations. In Arteman and Harinek, the Illinois Supreme Court emphasized the extent to which the decisions involved the allocation of limited resources, such as time or money. I do not find that directing swimmers to dive into a pool required a policy making decision. In fact, if as the complaint alleges, the Lake Forest High School swimming rules forbade such dives, then the decision was in violation of a stated policy, not a policy decision.

Accordingly, Defendants’ acts were not discretionary policy decisions and therefore not protected by Section 2-201 of the Tort Immunity Act.

B. Condition of Public Property

The defendants contend that Section 3-106 provides them with immunity from Plaintiffs claims. Section 3-106 states:

Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.

745 ILCS 10/3-106 (West 2010).

Section 3-106 includes injuries that result from “the existence of a condition of any public property intended.... for recreational purposes” Id. Accordingly, “[i]f liability is not based on the existence of a condition of public property, section 3-106 does not apply.” McCuen v. Peoria Park Dist., 163 Ill.2d 125, 205 Ill.Dec. 487, 643 N.E.2d 778, 780 (1994). In McCuen, the Illinois Supreme Court examined the “condition” requirement of Section 3-106 as applied to a negligently operated hayrack. Id. The court found that when the plaintiffs did not claim that the hayrack itself was dangerous, but rather that it was negligently operated, 3-106 did not apply. Id. It held that where “otherwise safe property is misused so that it is no longer safe, but the property itself remains unchanged, any danger presented by the property is due to the misuse of the property and not to the condition of the property.” Id.

Though McCuen may be factually dissimilar to this case, it is noteworthy because it explicitly overrules Burdinie v. Vill. of Glendale Heights, 139 Ill.2d 501; 152 Ill.Dec. 121, 565 N.E.2d 654 (1990). In Burdinie, the court held that Section 3-106 served to immunize a governmental entity where the plaintiff was injured after being instructed to jump feet first into a pool because the plaintiff failed to plead facts that indicated that the defendant did not maintain the pool in a reasonably safe condition. Id., 152 Ill.Dec. 121, 565 N.E.2d at 660. In overruling Burdinie, the McCuen court noted that “[t]he swimming instructor’s negligence was unrelated to the condition of the swimming pool. We find here that Section 3-106 provides immunity only where liability is based on the condition of public property.” McCuen, 205 Ill.Dec. 487, 643 N.E.2d at 781.

With this distinction in mind, it is clear that the cases cited by Defendants do not involve circumstances similar to those alleged in Plaintiffs Amended Complaint. See e.g., Bubb v. Springfield Sch. Dist., 167 Ill.2d 372, 212 Ill.Dec. 542, 657 N.E.2d 887, 894 (1995) (holding that injuries caused by a height difference between the sidewalk and playground were within Section 3-106); Kayser v. Vill. of Warren, 303 Ill. App.3d 198, 236 Ill.Dec. 440, 707 N.E.2d 285, 289 (Ill.App.Ct.1999) (finding injuries suffered after tripping at a community center within Section 3-106); Dinelli v. Cnty. of Lake, 294 Ill.App.3d 876, 229 Ill. Dec. 284, 691 N.E.2d 394, 398 (Ill.App.Ct. 1998) (holding that injuries suffered while crossing a crosswalk were within the immunity provided by Section 3-106).

The Amended Complaint alleges that the supervision and instruction provided to Plaintiff was deficient, not that the pool itself was of an unsuitable condition. Accordingly, Section 3-106 is inapplicable to the present complaint and does not shield Defendants from liability.

C. Willful and Wanton Conduct

The defendants next contend that they are immune from suit because Section 3-108 requires “willful or wanton conduct” where the injury is proximately caused by improper supervision.

(a) Except as otherwise provided in this Act, neither a local public entity nor a public employee who undertakes to supervise an activity on or the use of any public property is liable for an injury unless the local public entity or public employee is guilty of willful and wanton conduct in its supervision proximately causing such injury.
(b) Except as otherwise provided in this Act, 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 unless the employee or the local public entity has a duty to provide supervision imposed by common law, statute, ordinance, code or regulation and the local public entity or public employee is guilty of willful and wanton conduct in its failure to provide supervision proximately causing such injury.

745 ILCS 10/3-108 (West 2010).

For purposes of the Tort Immunity Act the term “willful and wanton conduct” is defined as follows:

“Willful and wanton conduct” as used in this Act means a course of action which shows an actual or deliberate intention 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 definition shall apply in any case where a “willful or wanton” exception is incorporated into any immunity under this Act.

745 ILCS 10/1-210 (West 2010).

In defining the term, Illinois courts have stated that “[ijnadvertence, incompetence, or unskillfulness does not constitute willful and wanton conduct.” Floyd v. Rockford Park Dist., 355 Ill.App.3d 695, 291 Ill.Dec. 418, 823 N.E.2d 1004, 1010 (Ill.App.Ct. 2005). However, the term does include “a range of mental states from actual or deliberate intent to cause harm, to utter indifference for the safety or property of others, to conscious disregard for the safety of others or their property.” Murray v. Chicago Youth Ctr., 224 Ill.2d 213, 309 Ill.Dec. 310, 864 N.E.2d 176, 189 (2007). Although the Act incorporates a definition for “willful and wanton conduct” the Illinois Supreme Court has determined that it was added by the legislature with the intent of integrating the common law definition of “willful and wanton” into the Act. Id., 309 Ill.Dec. 310, 864 N.E.2d at 193.

In Murray, the Illinois Supreme Court held that where a student was seriously injured while using a trampoline, without a certified instructor present, and where the program did not obey national gymnastic safety standards there existed a genuine issue of material fact as to whether the defendants were guilty of willful and wanton conduct. Id., 309 Ill.Dec. 310, 864 N.E.2d at 195. The court also emphasized the well-known risks of trampoline use and that the absence of supervision was sufficient to raise a question of fact for a jury. Id., 309 Ill.Dec. 310, 864 N.E.2d at 194.

Illinois appellate courts, too, have found that being instructed to engage in a dangerous act is sufficient to allege an “utter indifference or conscious disregard” for one’s safety. Peters v. Herrin Cmty. Sch. Dist., 401 Ill.App.3d 356, 340 Ill.Dec. 661, 928 N.E.2d 1258, 1264 (Ill.App.Ct.2010) (student instructed to run over obstacle sufficient to support a cause of action for willful and wanton conduct); Manuel v. Red Hill Cmty. Unit Sch. Dist. No. 10 Bd. of Educ., 324 Ill.App.3d 279, 257 Ill.Dec. 790, 754 N.E.2d 448, 459 (Ill.App.Ct.2001) (handicapped student instructed to walk over snow-covered stairs alleged willful and wanton conduct).

Consequently, accepting the allegations contained in the amended complaint as true I find that Plaintiff has successfully plead facts showing that Defendants’ conduct was willful and wanton.

D. Distinct Causes of Action

Lastly, Defendants propose that Plaintiffs claims in Counts III-IX, against Carolyn Grevers, John Higgins, and Colin Kiely, are impermissibly duplicative of Counts I, II, and IX against Lake Forest High School. Defendants assert that because Illinois law requires school districts to defend and indemnify their employees, Counts other than those against Lake Forest High School should be dismissed.

However, Defendants state no authority other than the Illinois statute to demonstrate that Counts III-VIII are impermissible. In the absence of individual employee liability there is no duty to indemnify. Plaintiff tailors Counts III-VIII to each individual Defendant and alleges that Defendants were acting “individually, and as agent[s] and employee[s] of... .Lake Forest Public Schools.” Furthermore, in its pleadings “[a] party may state as many separate claims or defenses as it has, regardless of consistency.” Fed. R. Civ. Pro. 8(d)(3). Accordingly, I decline to dismiss Counts III-VIII for failing to “state a claim upon which relief can be granted.” Fed. R. Civ. Pro. 12(b)(6)

IV. CONCLUSION

For the foregoing reasons, I deny Defendants’ motion to dismiss. 
      
      . Count I and II of Plaintiffs First Amended Complaint allege negligence and willful and wanton conduct on the part of The Board of Education of Lake Forest Community High School District 115. Counts III and IV allege negligence and willful and wanton conduct against Carolyn Grevers individually and as an agent of Lake Forest High School. Counts V and VI allege negligence and willful and wanton conduct against John Higgins individually and as an agent of Lake Forest High School. Counts VII and VIII allege negligence and willful and wanton conduct against Colin Kiely individually and as an agent of Lake Forest High School. Lastly, Count IX seeks medical expenses from Defendants pursuant to the Illinois Family Expense Act.
     
      
      . Defendants in their Reply properly note that Murray addresses Section 1-210 prior to its 1998 amendment. See Id., 309 Ill.Dec. 310, 864 N.E.2d at 193 (“[W]e express no opinion on the effect, if any, of the 1998 amendment on willful and wanton liability governed by the Tort Immunity Act.”). However, the 1998 amendments to Section 1-210 left the definition of “willful and wanton conduct” unchanged. It is unclear why I should apply a wholly different definition of "willful and wanton” from that identified by the Murray court as being appropriate for the Act. The essential reasoning of Murray, namely, that the language of 1-210 merely incorporated the common law definitions of "willful and wanton” remains persuasive.
     