Ryan Murray, et al. v. Chicago Youth Center, et al.

Plaintiffs, Ryan Murray and his mother, Joyce Mayers, brought an
action against defendants, the Chicago Board of Education (the
Board), Chicago Youth Centers (CYC), and CYC employee James
Collins (Collins) to recover for serious injuries suffered by Ryan and
for medical expenses incurred as a result of a mini-trampoline
accident. The circuit court of Cook County first denied, but ultimately
granted defendants' motions for summary judgment, holding
defendants immune from liability pursuant to sections 2–201 and
3–108(a) of the Local Governmental and Governmental Employees
Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2–201,
3–108(a) (West 1992)).

The appellate court affirmed the circuit court's grant of summary
judgment, on the separate grounds alleged in CYC and Collins's
motion for summary judgment. 352 Ill. App. 3d 95. The appellate
court held section 3–109(c)(2) of the Tort Immunity Act (745 ILCS
10/3–109(c)(2) (West 1992)) was applicable and, accordingly, the
immunity afforded defendants by the Tort Immunity Act did not
extend to willful and wanton acts. 352 Ill. App. 3d at 105. However,
the appellate court also held, as a matter of law, the facts as set forth
in plaintiffs' second amended complaint, along with the depositions,
affidavits and other documents on file, would not support a finding
that defendants acted willfully and wantonly. 352 Ill. App. 3d at 106.
We allowed plaintiffs' petition for leave to appeal. 177 Ill. 2d R.
315. On July 5, 2006, we issued an opinion affirming the judgment of
the appellate court, but subsequently allowed plaintiff's petition for
rehearing. 210 Ill. 2d R. 367. We now reverse the judgments of the
appellate and circuit courts, and remand for further proceedings.

BACKGROUND

On December 14, 1992, Ryan Murray was a 13-year-old student
at Byrn Mawr School, operated by defendant, the Chicago Board of
Education (Board). On that day, Ryan was participating in an
extracurricular lunch period tumbling class sponsored by the Board
and conducted by defendants, Chicago Youth Center (CYC) and its
employee, James Collins. Ryan apparently attempted to perform a
forward flip off a mini-trampoline and landed on his neck or shoulders.
As a result of the accident, Ryan is now a quadriplegic.

Ryan and his mother, Joyce Mayer, brought suit against
defendants. Plaintiffs' second amended complaint alleged that
defendants, "with an utter indifference and conscious disregard for the
safety of Ryan Murray, were willful and wanton." Plaintiffs further
alleged, inter alia, that defendants knowingly and intentionally or with
reckless disregard, failed to supply appropriate safety and protective
equipment, failed to supply a spotter, failed to warn Ryan of the risk
of spinal cord injury, and failed to stop the class from using the
trampoline unsafely. Plaintiffs further alleged the Board was willful
and wanton in failing to supply a harness and safety belt, and
supplying inadequate gymnastic floor mats rather than proper
trampolining "landing mats." Plaintiffs' complaint also included claims
of negligence against defendants, and product liability claims against
Sports Supply Group, identified in earlier pleadings as BSN Sports,
Inc., and GSC Sports. Those claims are not subjects of this appeal.
In his discovery deposition, James Collins testified that CYC
offered the tumbling class at Bryn Mawr with the permission of the
Board. Beginning in the spring 1992 semester, Collins, a CYC
employee, began instructing the tumbling class. Collins had a degree
in physical education and limited experience with tumbling,
gymnastics, and the mini-trampoline. Collins had no license or
certificate qualifying him as a trampoline instructor or teacher. Collins
had never taught the mini-trampoline to anyone prior to instructing the
tumbling class at Bryn Mawr, but had acted as a "spotter" under the
supervision of an instructor.

According to Collins, Ryan began taking the extracurricular
tumbling class offered by CYC at Bryn Mawr in the spring 1992 term,
when he was in the seventh grade. The tumbling class was held two
days each week and lasted about 50 minutes. Between 16 and 20
students participated in the tumbling class on a given day. No other
teachers or instructors supervised the tumbling class.

Typically, the students would come to the gym and sign in before
class. Students were permitted to wear loose-fitting clothes and socks
while tumbling. Class would always begin with stretching exercises.
The students would then work on whatever gymnastic maneuver
Collins planned to practice that day. For the most part, tumbling class
consisted of learning and practicing floor maneuvers, including
forward rolls, dive rolls, and cartwheels. Collins used the minitrampoline
as part of his regular class on only a few occasions.
However, at the end of each class, once the planned instruction was
finished, Collins would give the students the last 10 to 20 minutes of
the class period to "freelance" and to "show out" or try to impress
someone. Generally, the mini-trampoline would be made available to
the students during this time. The students would bring the minitrampoline
onto the gym floor and set it up. Collins would then make
sure the trampoline was locked in position and a double layer of floor
mats was placed around the device.

Once the mini-trampoline was set up, the students would form a
line and take turns using it. Some of the students would simply jump
off the mini-trampoline, while other students who were more
advanced might do a flip or somersault off the mini-trampoline. On
occasion, Collins would "spot" the students. He also taught the
students how to "spot" each other. However, Collins did not require
that spotters be used every time a student jumped off the minitrampoline
but, rather, only if the student requested one. Collins did
not always provide spotters when students performed maneuvers
outside of those he was teaching or beyond the student's skill level.

On December 14, 1992, the tumbling class proceeded as usual.
Collins was the only instructor for 18 to 22 students. After regular
class instruction was finished, the mini-trampoline was set up and the
students were allowed to freelance. Ryan got in line and, when it was
his turn, made a running approach to the mini-trampoline, jumped off
the mini-trampoline into the air, and rotated in a forward flip. He then
landed on the mats on his upper body, sustaining injuries and
rendering him a quadraplegic. Collins was in the gymnasium at the
time of the accident, but was standing a few yards away, talking with
a female student. He had not spotted the students using the minitrampoline,
nor had he assigned other students to act as spotters on
the day of Ryan's accident. Collins saw Ryan approach the minitrampoline
before the accident and it appeared to him that Ryan was
going to attempt a double forward flip. However, Collins was too far
away from the mini-trampoline to intervene. After Ryan's accident,
Collins immediately sent some students to the office to call 911 for
assistance. Collins stayed with Ryan until emergency services arrived
and Ryan was taken by ambulance to the hospital.

Ryan Murray testified during his discovery deposition that he
never saw Collins "spot" anyone off of the mini-trampoline and that
his injury occurred during the "freelance" part of the class. Ryan had
only done a forward flip two or three times, and he did not imagine
that he could land on his head or neck while doing a forward flip.
Ryan imagined falling probably on his knees or incorrectly on his feet,
but he did not know a forward flip could cause him to be seriously
injured or paralyzed. The worst injury he imagined was probably a
broken leg or arm. Ryan testified that when he was injured, his body
landed partially on the mat and partially on the floor. Ryan stated that
he felt a lot of pain in his neck and could not get up.

The only expert opinion offered by the parties in this case was
plaintiffs' retained expert, Marc Rabinoff, a doctor of education and
a tenured professor of human performance sport and leisure studies at
Metropolitan State College of Denver in Colorado. He reviewed the
statements of witnesses, depositions, photographs, and exhibits
provided by plaintiffs' attorneys and rendered a series of opinions on
issues of liability in this case. The opinions were furnished to
defendants in response to interrogatories, and he was deposed by
defendant's attorneys. Dr. Rabinoff had more than 30 years of
experience in his field and has testified in several cases as a gymnastics
expert.

Dr. Rabinoff testified that it is well known that the mini-trampoline
is associated with the risk of spinal cord injury from improperly
executed somersaults. According to Dr. Rabinoff, the use of the minitrampoline
requires competent instruction and supervision, and
competent spotters for safety and prevention of catastrophic injury. In
Dr. Rabinoff's opinion, the tumbling environment was not appropriate
for executing somersaults off of a competitive professional minitrampoline
because those maneuvers require considerable skill,
spotting, and appropriate landing mats. The minimum mat requirement
was not met, and there were absolutely no spotters. According to Dr.
Rabinoff, the tumbling program was one of the worst environments he
had ever seen and violated every single safety standard. In his opinion,
Ryan Murray's injury would have been prevented had more than two
inches of mat been used on the landing surface.

Dr. Rabinoff testified it was Collins' job, as the tumbling
instructor, to know the maneuver each gymnast intended to execute
and that Collins' supervision and instruction were inadequate. In fact,
Dr. Rabinoff was shocked that Collins inappropriately rolled Ryan
Murray over after the accident, when Ryan had a suspected head and
neck injury. In Dr. Rabinoff's opinion, Collins was not qualified to
teach tumbling. Dr. Rabinoff indicated that school districts all over the
country had banned trampolines from tumbling classes 10 to 15 years
before Ryan Murray's accident, that the Chicago schools should not
have purchased the trampoline and should not have permitted Collins
to use the trampoline in tumbling classes.

Dr. Rabinoff concluded that Collins demonstrated reckless
conduct or conscious disregard for the safety of Ryan Murray in that:

"He elected, made a decision, not to spot, he made a decision
to use the mini trampoline improperly; he made a decision to use mats that are inadequate; he made a decision to conduct
that class the way it was conducted, that's reckless to me, and
complete disregard for what could potentially happen if a
participant, a student in that class doesn't make it all the way
around off the mini-tramp."

Dr. Rabinoff also concluded that the Board of Education
demonstrated reckless conduct or a conscious disregard for the safety
of Ryan Murray in the purchase and use of the mini-trampoline. It was
also clear to Dr. Rabinoff that not enough mats were used on the
landing area because Ryan Murray landed partially on the mat and
partially on the bare gymnasium floor.

Dr. Rabinoff's report was also attached to his deposition and made
a part of the record. The report indicates that in expressing his
opinions on the issues of liability and probable cause, he relied on his
education, training and experience, the other materials furnished to
him, and guidelines and warnings on use of mini-trampolines and
trampolines issued by the United States Gymnastics Federation
(USGF), the American Alliance for Health, Physical Education,
Recreation and Dance, the National Collegiate Athletic Association
(NCAA), the American Academy of Pediatrics (AAP), the United
States Product Safety Commission, and the American Society for
Testing and Materials. Dr. Rabinoff's report quotes extensively from
the USGF safety manuals in effect at the time of Ryan's injury:

"The U.S.G.F. Gymnastics Safety Manual, Second Edition
(1990) requires that spotting should be required for minitramp
activities. The decision as to when and how spotting
should be employed rests with the teacher. Skillful use of
‘hands-on spotting' and a safety rig are essential when
teaching somersault activities. James Collins failed to adhere
to the U.S.G.F. Gymnastics Safety Manual guidelines
regarding spotting.

The U.S.G.F. Safety Manual, Second Edition (1990),
requires the following landing surface:

A suitable landing surface can be established by placing a
4" landing mat (6' x 12') on top of a base mat (6' x 12').
This matting arrangement, positioned securely against the
forward legs of the mini tramp, serves as a minimum
recommendation for stand up jumping activities. For somersault activities, an additional 4" landing mat (6' x
12') placed on top of the above described landing surface
or an 8" to 12" safety cushion placed on top of the base
mat is recommended.

The Chicago Board of Education failed to supply the
appropriate equipment for a landing surface. They further
failed to supply a harness or safety belt to Ryan Murray while
performing a somersault maneuver.

The wrestling mats used by and set up by Mr. Collins for
tumbling class were inappropriate and in clear violation of the
U.S.G.F. Gymnastics Safety Manual guidelines.

The U.S.G.F. Gymnastics Safety Manual, Second Edition
(1990), requires that use of the mini-tramp occur under the
supervision of a trained and qualified instructor. Mr. Collins
was not a trained and qualified instructor.

The U.S.G.F. Gymnastics Safety Manual, Second Edition
(1990), requires that the instructor inform students about the
potential risks associated with the use of the mini-trampoline
and that the instructor be sure that the risks and rules are
appreciated and understood. Mr. Collins did not inform
students of the potential risks and Ryan Murray, a student in
his class, did not appreciate and understand the risks of
trampolining.

* * *

The U.S.G.F. Gymnastics Safety Manual, Second Edition
(1990), clearly warns that improper execution of the
somersault is one of the most common causes of serious,
catastrophic spinal cord injury. This warning applies to both
forward and backward somersaults as well as any of their
related dive roll activities. Mr. Collins as a trampoline
instructor knew or should have known of this risk.

The failure of Mr. Collins to adhere to the mini-trampoline
guidelines enunciated in the U.S.G.F. Gymnastics Safety
Manual, demonstrates reckless conduct or conscious disregard
for the safety of Ryan Murray and the students in the tumbling
class at Bryn Mawr School.

* * *

The Chicago Board of Education did not adequately
determine Mr. Collins' qualifications to teach tumbling and
mini-tramp.

Risk of serious injury, including quadriplegia, is known to
occur from improper execution of a somersault when using a
mini-trampoline

Safety rules are a fundamental part of a safe trampoline
program. The rules should be conspicuously and thoroughly
understood by each participant in the class. Each student must
understand and respect the hazards of the trampoline and the
disastrous consequence including paralysis of an improper
head and neck landing. Safety must be constantly reinforced.
A student does not assume any risk of which he is not aware
or does not appreciate. Responsibility rests on the instructor
to communicate the risk. Knowledge of the risk is not enough.
Appreciation of the risk of serious catastrophic injury,
including paralysis, must be supplied to every student by the
instructor. The instructor must ascertain that the student
understands this risk."

Dr. Rabinoff's opinions and deposition were submitted to the
court in response to CYC and Collins' motion for summary judgment
alleging that the pleaded facts did not constitute willful and wanton
conduct as a matter of law, in addition to contending immunity
applied. The Board's motion for summary judgment was limited to the
issue of immunity and did not address the willful and wanton conduct
issue.

The circuit court ultimately granted defendants' motions for
summary judgment. The circuit court held, pursuant to sections 2–201
and 3–108(a) of the Tort Immunity Act (745 ILCS 10/2–201,
3–108(a) (West 1992)), Collins, CYC, and the Board were entitled to
immunity from all of plaintiffs' claims. The circuit court, relying on a
Fourth District appellate court opinion, Johnson v. Decatur Park
District, 301 Ill. App. 3d 798 (1998), ruled that section 3–109 of the
Act did not serve to "trump" the blanket immunity provided by
sections 2–201 and 3–108(a). The court did not revisit the earlier
denial of CYC and Collins' motion on the willful and wanton conduct
issue.

The appellate court affirmed the circuit court's grant of summary
judgment, but held, because trampolining is a hazardous recreational
activity, section 3–109 of the Tort Immunity Act is the provision that
determines the scope of defendants' immunity. 352 Ill. App. 3d at
105. Accordingly, defendants were immune from all negligence
claims, but pursuant to section 3–109(c)(2) of the Act, defendants
would not be immune if plaintiff's injury resulted from defendants'
willful and wanton conduct. 352 Ill. App. 3d at 105. Nevertheless, the
appellate court held, based on the facts drawn from plaintiffs' second
amended complaint and the affidavits, depositions, and documents on
file, "defendants' actions do not approach the degree of
blameworthiness necessary to maintain an action for willful and
wanton behavior." 352 Ill. App. 3d at 106.

ANALYSIS

At the time of Ryan's accident in 1992, sections 2–201 and
3–108(a) of the Tort Immunity Act provided:

"§2–201. 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
1992).

"§3–108. (a) 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."
745 ILCS 10/3–108(a) (West 1992).

Plaintiffs do not dispute that, under ordinary circumstances,
sections 2–201 and 3–108(a) of the Tort Immunity Act would provide
defendants with absolute immunity for discretionary and supervisory
conduct. Plaintiffs maintain, however, the appellate court correctly
determined that section 3–109 of the Tort Immunity Act, that sets
forth the scope of immunity afforded local governmental entities and
their employees in relation to hazardous recreational activities, applies
in this case.

* * *