2026 IL App (1st) 251269
FIFTH DIVISION
September 25, 2026
No. 1-25-1269
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________ MARGARET KESSLER, Individually and as Mother and ) Appeal from the Circuit Court Next Friend of A.D., a Minor, ) of Cook County.
)
Plaintiff-Appellant, )
)
)
v. ) No. 23 L 9181
)
THE BOARD OF EDUCATION OF THE CITY OF ) Honorable
CHICAGO; CHICAGO PUBLIC SCHOOLS; NOBLE ) Charles S. Beach, NETWORK OF CHARTER SCHOOLS, an Illinois ) Judge, presiding. Corporation; BUTLER COLLEGE PREP; and DENNIS )
STRATTON, )
)
Defendants )
)
(Noble Network of Charter Schools and Dennis Stratton, )
Defendants-Appellees).
JUSTICE C.A. WALKER delivered the judgment of the court, with opinion.
Presiding Justice Gamrath and Justice Hyman concurred in the judgment and opinion.
OPINION
No. 1-25-1269
¶1 Plaintiff-Appellant Margaret Kessler, in her individual capacity and as mother and next
friend of her minor son, A.D., appeals from two orders of the circuit court dismissing claims in her
suit against the named defendants, Chicago Public Schools (CPS), Board of Education of the City
of Chicago (the Board), Noble Network of Charter Schools (Noble), and Dennis Stratton, which
sought damages for injuries suffered by A.D. in a high school football game. The claims against
CPS and the Board were previously resolved and are not at issue in this appeal. A.D. played for
the Butler College Prep (Butler) high school football team at the time of his injury, for which
Stratton served as the head coach. Butler was a member of Noble’s network of charter schools.
Relevant here, the court granted Noble and Stratton (collectively, the defendants) summary
judgment on claims alleging willful and wanton conduct and, separately, a motion to dismiss
pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West
2024)) regarding certain negligence claims. For the reasons below, we affirm the grant of summary
judgment but reverse the grant of the motion to dismiss, and remand for further proceedings.
¶2 BACKGROUND
¶3 Kessler filed her complaint on September 12, 2023, and alleged that A.D. suffered
significant testicular injury during a high school football game in which he was not wearing an
athletic cup to protect his groin. A.D. was a 15-year-old sophomore at the time of the injury.
Kessler alleged that during the game at issue, which took place on September 16, 2022, A.D. “was
tackled in the testicles and became injured as a result.” After the injury, Stratton “put [him] back
into the *** game while he was still injured.” Kessler argued that this act by Stratton constituted
“willful and wanton” conduct. She further alleged the defendants acted willfully and wantonly by
not requiring players to wear athletic cups during games and failing to instruct them about athletic
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cups. Kessler listed each as grounds for recovery for willful and wanton conduct in singular counts
against each separate defendant, including count V against Noble and count IX against Stratton.
¶4 Following discovery, the defendants moved for summary judgment on November 8, 2024.
They argued that Kessler failed to develop any evidence that the defendants’ conduct rose to the
willful and wanton level, and they were immune from any conduct that did not rise to that level
pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745
ILCS 10/1-101 et seq. (West 2022)).
¶5 The defendants identified two primary theories Kessler set forth for willful and wanton
conduct: (1) Stratton put A.D. back into the game despite knowing he had been injured and (2) the
defendants failed to require players to wear athletic cups during games. As to the second, the
defendants argued that under Illinois law, while a school must provide helmets and face guards for
football players, “the Illinois Supreme Court has repeatedly found that school employees who
exercised some precautions to protect students from injury, even if those precautions were
insufficient, were not guilty of willful and wanton conduct,” citing Lynch v. Board of Education
of Collinsville Community Unit District No. 10, 82 Ill. 2d 415, 430-31 (1980), and Barr v.
Cunningham, 2017 IL 120751, ¶ 18. It continued that the record showed the defendants “furnished
all equipment required by the IHSA (Illinois High School Association) and CPS (Chicago Public
Schools).” It contended there was “no policy—IHSA, CPS, Noble or otherwise—that required
players to wear athletic cups during football games.”
¶6 The defendants attached the depositions of Stratton, Kessler, and A.D. to their motion.
Stratton testified in relevant part that he was very familiar with football, having played in high
school and college, and he underwent IHSA training before every season. The players were
required to wear helmets and shoulder pads, along with knee pads and football pants containing
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No. 1-25-1269
additional padding, all provided by the school. Players also had to wear mouthpieces in practice
and games. The school did not provide or require athletic cups, though Stratton knew what they
were. It was the decision of the parents whether a student should wear an athletic cup during games.
Stratton had not worn cups while playing football but did for baseball. He did not know the
American Urological Association (AUA) or American Medical Society for Sports Medicine
(AMS) recommendations regarding athletic cups. He followed the IHSA guidelines because that
was the organization that “certifi[ed] us here in Illinois to play football.” He understood testicular
injuries can be lifelong and include infertility. He could not recall whether he met with parents
before the 2022 season to discuss wearing athletic cups but did not personally discuss the issue
with Kessler. Stratton had not seen an injury to the testicles “to this extent” before in his football
playing or coaching career and could only recall one or two instances where a player had injured
his testicles but simply “walk[ed] it off.”
¶7 Kessler testified that she purchased cleats and a mouthguard at the school’s instruction. She
asked A.D. if he also needed an athletic cup, but he relayed that “coach said to only get cleats and
a mouthguard.” She did not attend the game on September 16 and only learned of the injury “a day
and half later.” When she learned the athletic cup was not required, she did not consider making
A.D. wear one anyways, explaining, “I don’t know much about the game, so no. I just—if they
said it’s not required, then I went off of them.”
¶8 A.D. testified that he never had any discussions about athletic cups with Stratton, other
coaches, or school personnel. He had never worn a cup previously. Immediately following the play
on which he was injured, he came off the field and informed Stratton he had injured his testicles,
but Stratton told him to “man up.”
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¶9 On December 9, 2024, Kessler filed a first amended complaint, which, in relevant part,
added negligence claims (count XII against Noble and count XIII against Stratton). These counts
alleged that each defendant had “a duty to provide proper sports equipment to its players and to
properly supervise and monitor football players” during games, which the defendants breached
through
“one or more of the following careless and negligent acts or omissions:
a. Failed to provide proper sporting equipment to its football players,
including an athletic cup, including to [ A.D.], for use in school sanctioned
sophomore football games;
b. Failed to require its football players, including those of the
sophomore football team, including [A.D.], to wear proper sporting equipment,
including an athletic cup, to participate in football games;
c. Failed to properly ensure and supervise its players at a sophomore
football game, including [A.D.], to ensure its players were wearing proper sports
equipment, including athletic cups, in football games; [and]
d. Failed to properly instruct its players at a sophomore football game,
including [A.D.], in the wearing of proper sporting equipment, including an
athletic cup, during football games.”
¶ 10 Kessler then responded to the summary judgment motion. She acknowledged that the Act
generally afforded the defendants immunity but argued that immunity did not shield them from
her suit because under section 3-109(c)(2) (745 ILCS 10/3-109(c)(2) (West 2022)), the defendants
are not immune from willful and wanton conduct, a finding the evidence supported. She contended
both Stratton placing A.D. back into the game and the defendants’ failure to provide athletic cups
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No. 1-25-1269
constituted willful and wanton conduct. She acknowledged Butler provided “football helmets,
shoulder pads, football pants with thigh, hip and butt pads” and required players to wear cleats and
mouthpieces. Kessler emphasized that Stratton admitted at his deposition that he was familiar with
athletic cups and their purpose but still opted not to require them. Moreover, Kessler maintained
that before the injury, Stratton never discussed athletic cups with her and did not provide “any
literature, flyers, or handouts to parents of football players concerning the issue of using athletic
cups during the football season.”
¶ 11 Kessler attached the affidavit of Dr. Daniel Cohen-Neamie, a board-certified urologist, to
her response. Therein, Cohen-Neamie averred that he reviewed the complaint, A.D.’s medical
records from Northwestern Palos Community Hospital and University of Chicago Comer
Children’s Hospital, and the deposition transcripts of A.D., Kessler, Stratton, and Brian Riddick,
Butler’s principal. The depositions were not attached to the affidavit, though were included as
exhibits to the motion. The other referenced documents were attached to the affidavit.
¶ 12 Cohen-Neamie opined that “All male children in grade school and high school playing
contact sports like football must wear protective cups to protect their testicles.” He continued, “The
failure to provide a protective cup or require that one be worn created significant risk of injuries”
to A.D., and Stratton and Butler “showed reckless conduct and a conscious disregard” for A.D.’s
safety “for failing to furnish or require that [A.D.] wear a protective cup.” He averred that both the
AUA and AMS had “taken the position that boys playing contact sports like football must wear a
protective cup.” These positions constituted standards the defendants should have followed, and
their failure to do so showed “conscious disregard for safety of the boys who play tackle football.”
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No. 1-25-1269
¶ 13 In Riddick’s deposition, also attached to Kessler’s response, he testified that, to his
knowledge, the IHSA does not require football players to wear athletic cups and no parent had
previously complained about the school’s failure to provide athletic cups to students.
¶ 14 The defendants also moved to dismiss certain counts of the first amended complaint under
section 2-619(a)(9) of the Code of Civil Procedure, including counts XII and XIII, arguing the
counts failed because the defendants were immune from negligence claims under section 3-109 of
the Act (relating to hazardous recreational activities, which included football) and no exception
applied.
¶ 15 In Kessler’s response to the motion to dismiss, she argued that the Act did not preclude her
claims for negligence because the exception in section 3-109(c)(1) of the Act applied. Specifically,
she argued that the failure to require and/or provide athletic cups constituted the failure to guard
or warn students of a dangerous condition and that both her first amended complaint and the record
were sufficient to at least create a factual issue on whether the defendants were guilty of this
conduct. She pointed to Cohen-Neamie’s affidavit describing the dangers of playing football
without a cup and her and A.D.’s deposition testimony revealing their lack of familiarity with
athletic cups or previous experience playing football as support. She also stated that her theories
of recovery in counts XI and XII were sufficient to invoke section 3-109(c)(1) of the Act when
taken in the light most favorable to her, as the court must when considering a motion to dismiss.
¶ 16 The circuit court issued separate orders on the defendants’ motions: the first granting
summary judgment in part and the second granting section 2-619(a)(9) motion to dismiss in full.
In the first order, dated January 13, 2025, the court, in relevant part, delineated between the two
primary theories of recovery and denied summary judgment as to Stratton’s alleged decision to
play A.D. in the game after learning of his injury but granted summary judgment as to the theory
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No. 1-25-1269
regarding the failure to provide or require athletic cups. The court explained that Kessler had failed
to demonstrate the defendants engaged in willful and wanton conduct respecting athletic cups
because, “The decision to leave the use of athletic cups to players and their parents is consistent
with IHSA policies and does not constitute a breach of safety standards.” It continued, “The IHSA
did not required student athletes to wear a cup for football games. The school and coaches provided
all necessary items as required by the IHSA.”
¶ 17 Next, in an order dated March 17, 2025, the circuit court granted the defendants’ motion to
dismiss pursuant to section 2-619(a)(9), explaining only that the defendants’ “alleged liability is
limited when it comes to plain negligence. Therefore, Counts XII and XIII are dismissed.”
¶ 18 On May 5, 2025, Kessler moved for a finding pursuant to Illinois Supreme Court Rule
304(a) (eff. Mar. 8, 2016) as to the claims against the defendants on which the court granted
summary judgment on January 13 and dismissed under section 2-619(a)(9) on March 17 (namely
portions of counts V and IX and counts XII and XIII in their entirety, as relevant to this appeal).
The defendants responded, contending that Rule 304(a) language was improper because the
dismissed claims were too factually similar to the surviving claims, rendering the orders
insufficiently final. On June 6, 2025, the court granted Kessler’s motion. This appeal followed.
¶ 19 JURISDICTION
¶ 20 The circuit court granted Kessler’s motion for Rule 304(a) language on June 6, 2025, and
she filed her appeal on July 1, 2025, which satisfies the requirements of Illinois Supreme Court
Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017). This does not end our jurisdictional
inquiry, however, as the defendants contend this court lacks jurisdiction because the circuit court’s
Rule 304(a) decision was an abuse of discretion. See American Advisors Group v. Unknown Heirs
& Devisees of Williams, 2022 IL App (1st) 210734, ¶ 10. When determining whether the issuance
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of Rule 304(a) language constitutes an abuse of discretion, a reviewing court may consider the
following (nonexhaustive) factors:
“ ‘(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility
that the need for review might or might not be mooted by future developments in the [trial]
court; (3) the possibility that the reviewing court might be obliged to consider the same issue
a second time; (4) the presence or absence of a claim or counterclaim which could result in
set-off against the judgment sought to be made final; [and] (5) miscellaneous factors such
as delay, economic and solvency considerations, shortening the time of trial, frivolity of
competing claims, expense, and the like.’ ” Geier v. Hamer Enterprises, Inc., 226 Ill. App.
3d 372, 383 (1992) (quoting Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d
360, 362 (3d Cir. 1975)).
In a situation “where one claim based on the same operative facts is stated differently in multiple
counts, the dismissal of fewer than all counts is not a final judgment as to any of the party’s claims
as required by Rule 304(a).” Blumenthal v. Brewer, 2016 IL 118781, ¶ 27.
¶ 21 We find the surviving aspects of counts V and IX are sufficiently distinct from those at issue
in this appeal such that the circuit court did not abuse its discretion in granting Rule 304(a)
language, and accordingly this court has jurisdiction to hear Kessler’s appeal. The question is
whether the claims resolved by those orders are separate claims for purposes of Rule 304(a) rather
than different theories of the claims that remain pending. We conclude they are. The
surviving claims, based on the alleged in-game decision by Stratton to put A.D. back into the game
despite knowing of his injury, arise from a distinct set of facts and require distinct legal analysis
from the claims at issue in this appeal—whether the defendants can be held liable for failing to
require A.D. to wear an athletic cup during the game. Our resolution of this appeal will have no
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No. 1-25-1269
impact on the resolution at trial on the in-game claims, and as such, there is no basis to find the
circuit court abused its discretion in granting the Rule 304(a) motion.
¶ 22 The defendants argue that the other Geier factors weigh in their favor such that, even if the
issues are unrelated, this appeal still should not go forward. Most of these arguments are
duplicative to the above. The only alternative argument is that Kessler unduly delayed filing the
motion for the Rule 304(a) finding, but this is belied by the record. Kessler may not have filed
immediately after the circuit court granted summary judgment, but there is no dispute the motion
to dismiss was still pending when the court issued the summary judgment order and Kessler moved
for Rule 304(a) language as to all the dismissed counts across the two orders within a reasonable
time after the court granted the motion to dismiss.
¶ 23 ANALYSIS
¶ 24 Turning to the substance of Kessler’s appeal, she claims the circuit court erred by
(1) granting the defendants’ motion for summary judgment on the counts for willful and wanton
conduct for the athletic cup issue and (2) granting the defendants’ section 2-619(a)(9) motion to
dismiss on the negligence counts based on the defendants’ purported immunity under the Act.
¶ 25 There is no dispute that Noble, and Stratton as Noble’s employee, were governed entities
protected by the immunity afforded under the Act. Also undisputed is that A.D. was participating
in a hazardous recreational activity, bringing the conduct at issue subject to the specific provisions
of section 3-109 of the Act. 745 ILCS 10/3-109 (West 2022). Section 3-109 reads in relevant part,
“Neither a local public entity nor a public employee is liable to any person who participates in a
hazardous recreational activity ***.” Id. § 3-109(a). This does not end our consideration, however,
as Kessler contends that two statutory exceptions preserve her claims. First, specific to the claims
dismissed on summary judgment, Kessler invokes the exception under section 3-109(c)(2) of the
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Act, which exempts from immunity “[a]n act of willful or wanton conduct by a public entity or
public employee which is a proximate cause of the injury.” Id. § 3-109(c)(2).
¶ 26 Summary judgment is appropriate when the “pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005 (West
2024). The “court will construe the record strictly against the movant and liberally in favor of the
nonmoving party.” Haase v. Kankakee School District 111, 2025 IL 131420, ¶ 29. Summary
judgment is a drastic remedy that is only appropriate where the record conclusively shows the
nonmoving party’s right to judgment is “ ‘clear and free from doubt.’ ” Id. (quoting Seymour v.
Collins, 2015 IL 118432, ¶ 42). We review the grant of summary judgment de novo. Id.
¶ 27 The Act defines willful and wanton conduct as, “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.” 745 ILCS 10/1-210 (West 2022).
Whether an act constitutes willful and wanton conduct is generally a question of fact, but it may
be resolved as a matter of law if the evidence overwhelmingly favors the moving party. Barr, 2017
IL 120751, ¶ 15. In determining whether a school employee consciously disregarded student
safety, courts consider the precautions taken in light of the known risks. Id. ¶ 18. Under Illinois
law, a school has a duty to provide students with safety equipment that is necessary to prevent
serious injury. Palmer v. Mt. Vernon Township High School District 201, 169 Ill. 2d 551, 557
(1996) (citing Gerrity v. Beatty, 71 Ill. 2d 47 (1978), and Lynch, 82 Ill. 2d 415)).
¶ 28 Before addressing the merits of Kessler’s claim regarding summary judgment, we must first
resolve the defendants’ contention on appeal that Cohen-Neamie’s affidavit should be disqualified
from consideration. As the defendants accurately note, per Illinois Supreme Court Rule 191 (eff.
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Jan. 4, 2013), an expert’s affidavit on summary judgment “shall have attached thereto sworn or
certified copies of all documents upon which the affiant relies.” This is a mandatory requirement,
and a party’s failure to attach the documents is considered grounds for the court to strike the
affidavit. Robidoux v. Oliphant, 201 Ill. 2d 324, 343-45 (2002). But the defendants cannot invoke
this mandatory rule because they failed to move to strike the affidavit in the circuit court, thereby
waiving their right to challenge its consideration on appeal. See Bysom Enterprises, Ltd. v. Peter
Carlton Enterprises, Ltd., 267 Ill. App. 3d 1, 6 (1994). We reject defendants’ argument as to the
affidavit accordingly.
¶ 29 It is undisputed that the IHSA requires schools to provide certain equipment for students to
participate in football, all of which the defendants provided, and that the IHSA did not require
athletic cups. We note that apparently neither party submitted the actual IHSA requirements into
the record, but there is no claim that the defendants did not follow the rules, and we will therefore
accept the parties’ position on this point. Cohen-Neamie opined that athletic cups were mandatory
for participation in tackle football and the failure to require cups constituted willful and wanton
behavior, citing standards from the AUA and AMS. Stratton testified, and Kessler again does not
dispute that he knew and followed the IHSA standards at all relevant times. He also confirmed he
knew of athletic cups and their purpose; had worn them himself when playing baseball in the past,
but not football; and chose to permit students and their parents to make the decision for themselves,
despite knowing that potential testicular injury was a risk associated with playing organized high
school football. Stratton had never seen a football player suffer an injury to his groin that the player
could not “walk off,” and Riddick did not know of any previous issue in which parents of football
players had raised the issue of athletic cups.
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No. 1-25-1269
¶ 30 On this record, the evidence does not permit a reasonable inference that defendants
consciously disregarded player safety by failing to require athletic cups. Defendants provided the
protective equipment required by the IHSA, and Stratton followed the IHSA equipment
requirements. Although Stratton knew the purpose of athletic cups and understood that testicular
injuries could be serious, he had never encountered a significant testicular injury during his years
playing and coaching football. Nor had Butler received complaints about its failure to require cups.
These undisputed facts show, at most, that defendants may have taken insufficient precautions
against a particular injury, not that they consciously disregarded A.D.’s safety. See Barr, 2017 IL
120751, ¶¶ 14-18. In so finding, we note that IHSA compliance is not conclusive of the willful and
wanton issue, and this opinion should not be interpreted as creating such a rule.
¶ 31 Our resolution of this issue is guided by the principles articulated in two Illinois Supreme
Court cases, both of which the parties discuss extensively. First, in Murray v. Chicago Youth
Center, 224 Ill. 2d 213, 217 (2007), our supreme court ruled the defendant Chicago Youth Center
(CYC) and their employee James Collins were not entitled to summary judgment for the plaintiff’s
claim of willful and wanton conduct after the plaintiff was seriously injured when “apparently
attempt[ing] to perform a forward flip off a mini-trampoline.” The trampoline activity was part of
an extracurricular tumbling class. Id. The record showed that the injury occurred during a
“freelance” period of the class, during which the mini-trampoline was made available, and Collins
“would then make sure the [mini] trampoline was locked in position and a double layer of floor
mats was placed around” it. Id. at 219. During the jump that injured the plaintiff, Collins did not
assign a spotter and was not close enough to the mini-trampoline to intervene. Id. at 219-20.
Plaintiff’s expert opined that “the risk of spinal cord injury from improperly executed somersaults”
was well known, and the “use of the mini-trampoline requires competent instruction and
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supervision, and competent spotters for safety and prevention of catastrophic injury.” Id. at 221.
The expert cited guidelines from multiple organizations requiring increased safety measures from
those the defendants used. Id. at 222.
¶ 32 In ruling the willful and wanton claims survived summary judgment, the supreme court
stated,
“The evidence demonstrates that it is well known that use of a mini-trampoline is
associated with the risk of spinal cord injury from improperly executed somersaults and
that catastrophic injuries, including quadriplegia, can result from an improperly executed
somersault. The evidence also indicates that the tumbling/trampoline program was not
supervised by an instructor with professional preparation in teaching trampolining, nor was
it taught in a proper manner with reminders of the risk of injury incorporated into the
teaching process. The evidence also indicated that trained spotters and safety equipment
were not provided at all times, and none of the United States Gymnastic Federation (USGF)
Safety Manual guidelines were followed. Hence, genuine and material triable issues of fact
exist in this case on the question of whether defendants are guilty of willful and wanton
conduct. Under the circumstances, it was error for the appellate court to affirm summary
judgment.” Id. at 246.
¶ 33 Next, in Barr, the plaintiff was injured while playing floor hockey during a physical
education class. He sued the school and his instructor, alleging the latter was “willful and wanton
in failing to require the students to wear protective eyewear while playing floor hockey.” Barr,
2017 IL 120751, ¶ 3. The equipment for floor hockey included plastic sticks and “safety balls”
instead of pucks. Id. ¶ 4. The instructor testified that the “modified floor hockey equipment negated
the need for protective eyewear” and that she enforced numerous safety rules for the students while
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No. 1-25-1269
playing the game. Id. ¶ 6. She did not know of a previous injury suffered by a student from playing
floor hockey. Id. ¶ 7.
¶ 34 The Illinois Supreme Court ultimately ruled the defendants were immune under section 3-108 of the Act, which provides immunity for failure to supervise claims, with an exception for
“willful and wanton” conduct. Id. ¶ 18; see 745 ILCS 10/3-108 (West 2010). In so finding, it
explained, “the evidence showed Cunningham consciously considered student safety when she
determined that the floor hockey equipment, together with the rules students were required to
follow, was sufficient to prevent injuries.” Barr, 2017 IL 120751, ¶ 17. The Barr court cited Lynch,
where our supreme court directly considered football and found no willful and wanton conduct
where the defendants only warned football could be “rough” and advised the use of mouth guards,
but did not supply helmets or other equipment. Id. ¶ 18 (citing Lynch, 82 Ill. 2d at 430-31). The
court continued “the evidence that Cunningham instituted several safeguards to prevent injuries
shows that, at most, she took insufficient precautions,” meaning her “decision not to require the
students to use available safety equipment, standing alone,” did not rise to willful and wanton
conduct. Id.
¶ 35 The Barr court concluded by rejecting a theory based on Cunningham’s alleged knowledge
that “the ball could fly above players’ waists and him them in the eye,” emphasizing that the
plaintiff “failed to introduce evidence of any particular dangers associated with floor hockey that
called for the use of protective eyewear by students.” Id. ¶¶ 19, 23. In this discussion, the Barr
court acknowledged and discussed Murray, distinguishing its applicability by noting that
trampolining was “generally associated with a risk of serious injuries,” unlike floor hockey. Id.
¶ 21.
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¶ 36 We find the principles from Barr and Lynch compel a finding that the defendants’ decision
not to require athletic cups was not willful and wanton conduct as a matter of law, a conclusion
which is not precluded by Murray. In so finding, we acknowledge that the Barr court addressed
willful and wanton conduct in the context of section 3-108 of the Act, not section 3-109, but do
not find this to be a meaningful distinction because the statute defines “willful and wanton” as
explicitly having the same meaning throughout the Act. 745 ILCS 10/1-210 (West 2022). Akin to
the defendants in Barr and Lynch, the undisputed facts here show that the defendants took
precautions to provide for student safety while playing football. Though the risks of football are
generally well known, unlike the floor hockey activity at issue in Barr, the defendants acted in
direct contemplation of these known risks by ensuring that the equipment they provided complied
with the requirements of the IHSA. Stratton’s knowledge of athletic cups and their purpose,
standing alone, does not alone establish conscious disregard. He testified that he had never worn a
cup while playing football or encountered a significant testicular injury playing or coaching
football. Riddick also knew of no prior parental complaint about athletic cups. Although Stratton
understood that testicular injuries could be serious, the record contains no evidence that he had
ever encountered a testicular injury or been advised that the precautions required for high school
football were inadequate without an athletic cup. It follows that, as in Barr, the record shows
defendants took precautions directed at player safety. Those precautions may have been
inadequate, but inadequacy does not establish the conscious disregard required for willful and
wanton conduct. See Barr, 2017 IL 120751, ¶ 18; Biancorosso v. Troy Community Consolidated
School District No. 30C, 2019 IL App (3d) 180613, ¶ 15.
¶ 37 Murray does not require a different result. The Murray court emphasized that, despite the
general knowledge of significant risk of spinal cord injury from the use of mini trampolines,
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No. 1-25-1269
essentially none of the fundamental requirements to make the activity safe were followed,
including the applicable guidelines from the USGF. Murray, 224 Ill. 2d at 246. The defendants
here, conversely, undisputedly followed the IHSA guidelines to provide for student safety in light
of the known risks of football. And while Cohen-Neamie averred that the AUA and AMS had
standards requiring athletic cups, Kessler provided no evidence suggesting the defendants knew
of these standards, that these standards were generally accepted and practiced by non-IHSA
affiliated football programs, or that the standards were generally known to high school football
coaches and administrators. Had the defendants known the IHSA had safety standards, but chose
not to consult or follow them, that might show conscious disregard of safety, but the record shows
the opposite. Undoubtedly, football is more akin to trampolining in that it is associated with serious
injuries. But again, in light of the defendants’ conscious efforts to fully comply with the IHSA
equipment requirements, Murray does not require this court to find a question of fact exists over
whether the defendants acted willfully and wantonly.
¶ 38 We also reject Kessler’s citation to Palmer and Lynch for the proposition that school
districts must furnish equipment to students to guard against reasonably foreseeable injury. Those
cases discussed such a requirement in the context of negligence claims, not willful and wanton
conduct. See Palmer, 169 Ill. 2d at 560; Lynch, 82 Ill. 2d at 434-35 (school district could be found
negligent for failing to supply helmets and shoulder pads for “powderpuff” football game).
¶ 39 Kessler’s final claim is that the circuit court erred by granting the defendants’ motion to
dismiss under section 2-619(a)(9) for counts XII and XIII, which survive pursuant to section 3-109(c)(1) of the Act. Under section 2-619(a)(9), a defendant may move to dismiss a claim on the
grounds that it “is barred by other affirmative matter avoiding the legal effect of or defeating the
claim.” 735 ILCS 5/2-619(a)(9) (West 2024). Immunity is one such affirmative matter. Strauss v.
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City of Chicago, 2022 IL 127149, ¶ 56. In filing section 2-619(a)(9) motion, the defendant admits
sufficiency of the allegations but asserts that the affirmative matter defeats the claim as a matter
of law. Id. ¶ 54. To demonstrate dismissal is appropriate under section 2-619(a)(9) based on
immunity, an affirmative defense, the “governmental entity has the burden of pleading and proving
its immunity.” Id. ¶ 56. If successful, “the burden shifts to the plaintiff, who must establish that
the affirmative defense asserted either is ‘unfounded or requires resolution of an essential element
of material fact before it is proven.’ ” Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383
(1997) (quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993)).
The plaintiff may do so through affidavits or other proof. Id. We review the grant of section 2-619(a)(9) motion de novo. Strauss, 2022 IL 127149, ¶ 53.
¶ 40 The parties do not dispute that the defendants met their initial burden of demonstrating they
are governmental entities protected by the Act. With the burden shifted to Kessler, she responded
that the record showed the exception of failure to warn under section 3-109(c)(1) of the Act
preserved her negligence claims. That exception excludes liability for the “[f]ailure of the local
public entity or public employee to guard or warn of a dangerous condition of which it has actual
or constructive notice and of which the participant does not have nor can be reasonably expected
to have had notice.” 745 ILCS 10/3-109(c)(1) (West 2022). The circuit court’s lone explanation
for granting summary judgment on these counts was to generally note that the defendants were
immune from “plain negligence” claims
¶ 41 We find the defendants have not demonstrated that immunity per section 3-109 of the Act
precludes Kessler’s negligence claims in counts XII and XIII as a matter of law. We reverse the
circuit court’s dismissal of those counts and remand for further proceedings thereon. Our review
of the record demonstrates that Kessler’s first amended complaint sufficiently alleges that the
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No. 1-25-1269
defendants knew playing football without an athletic cup was dangerous but failed to protect A.D.
from that danger, which is enough to bring this case under the section 3-109(c)(1) framework at
this stage. Both counts XII and XIII of the first amended complaint contain allegations that the
defendants failed to require football players to wear athletic cups (paragraph 29, item (b)) or
instruct players about the need to wear athletic cups (paragraph 29, item (d)), and that such conduct
was the proximate cause of A.D.’s injury. These allegations, at this stage of the litigation, are
sufficient to evoke the “guard or warn” theory described in section 3-109(c)(1) such that dismissal
is improper. See Allumi v. Oswego Community Unit School District 308, 2026 IL App (3d) 250108,
¶¶ 23-29.
¶ 42 Moreover, after the defendants moved for dismissal under section 2-619(a)(9) citing
immunity as the applicable affirmative matter, Kessler submitted evidence supporting section 3-109(c)(1)’s applicability. Specifically, Stratton testified during his deposition that he knew there
was a risk for students to play football without wearing an athletic cup, while both Kessler and
A.D. testified at their deposition that they had no knowledge of the dangers. A.D. had not
participated in organized football before his time at Noble, and Kessler was unfamiliar with the
game. Kessler and A.D. maintained that no one informed them of the risk of playing football
without an athletic cup, meaning they could not be reasonably expected to know of the dangers.
Whether a factfinder would ultimately find in Kessler’s favor on the elements of the section 3-109(c)(1) exception based on the above testimony is not at issue at this stage. Kessler has met her
burden to rebut the defendants’ affirmative matter, and as such, the counts can move forward.
¶ 43 The defendants do not substantively address Kessler’s proffered evidence in attempting to
invoke section 3-109(c)(1) of the Act, instead basing their entire argument on the proposition that
the first amended complaint did not specifically plead the elements of the exception. This argument
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No. 1-25-1269
fails for two reasons. First, the first amended complaint sufficiently alleged the defendants failed
to require athletic cups or instruct the student athletes about them, which is sufficient at this stage
to state a claim that survives per section 3-109(c). And second, while Kessler may not have
specifically evoked that section of the Act in her pleading, or used the exact phrase “guard or
warn,” the argument that this alone defeats her claim is based on the erroneous premise that Kessler
had the initial burden to plead the defendants’ immunity. As described above, immunity is an
affirmative defense, meaning it was the defendants’ burden to plead it; Kessler was not required
to plead facts in her first amended complaint to defeat an affirmative defense not yet advanced.
See Strauss, 2022 IL 127149, ¶¶ 55-57. The law is clear that it is only once the defendants
presented their immunity defense in their section 2-619(a)(9) motion that it became incumbent on
Kessler to submit affidavits or other evidence showing there were issues of fact defeating the
affirmative matter. Id.; Epstein, 178 Ill. 2d at 383. Kessler successfully made this showing and
thus counts XII and XIII (as limited above) survive the motion to dismiss.
¶ 44 This conclusion does not conflict with our determination that the evidence fails to establish
willful and wanton conduct. Section 3-109(c)(1) asks whether defendants had notice of a
dangerous condition of which A.D. lacked notice. Section 3-109(c)(2) requires showing more,
either utter indifference to or conscious disregard for safety. Evidence sufficient to create a factual
issue under 3-109(c)(1) does not necessarily satisfy 3-109(c)(2).
¶ 45 CONCLUSION
¶ 46 The record shows that the defendants did not act willfully and wantonly as a matter of law
respecting the athletic cup issue but are not entitled to dismissal based on the affirmative matter of
immunity from Kessler’s negligence claims in counts XII and XIII because she presented enough
evidence to create an issue of fact as to whether the immunity exception in section 3-109(c)(1) of
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No. 1-25-1269
the Act applies. Accordingly, we affirm the partial grant of summary judgment regarding counts
V and IX but reverse the grant of section 2-619(a)(9) motion to dismiss regarding counts XII and
XIII, paragraph 29, items (b) and (d) only for each, and remand for further proceedings.
¶ 47 Affirmed in part and reversed in part; cause remanded.
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No. 1-25-1269
Kessler v. Board of Education of Chicago, 2026 IL App (1st) 251269
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 23-L-9181;
the Hon. Charles S. Beach, Judge, presiding.
Attorneys David Nemeroff, of Nemeroff Law Offices, Ltd., of Chicago, for for appellant.
Appellant:
Attorneys Jenna L. Mahoney, of Nielsen, Zehe & Antas, P.C., of Chicago, for for appellees.
Appellee:
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