*1 impounding appropriate agency’s administrative review of the action that such action is undertaken and an adverse horses. the event reached, the Director decision to the Sturms is or event filed, the Director petition untimely that such the event determines by petition for review regulations providing determines that the rules and case, then apply impoundment do not to the action in this such decision pursuant decisions can be reviewed the circuit appropriate proceedings. Act or other Administrative Review action, dismissing In the the trial court’s action complaint declaratory proper plaintiffs relief was since the had failed first exhaust their alleged administrative remedies which were not issue, shown inadequate. to be Because of our resolution of this we need not consider the issue respect immunity raised with defendants from suit. judgment County is affirmed. of the Circuit Court of Bureau
Affirmed.
STOUDER, BARRY, P. J., J., concur. LYNCH, Minor, Lynch, her Father Next by Raymond CYNTHIA L. L. Friend, al., OF Plaintiffs-Appellees, BOARD OF EDUCATION et v. THE DISTRICT NO. COLLINSVILLE COMMUNITY UNIT SCHOOL Defendant-Appellant.
Fifth District No. 78-393 Opinion May filed
KUNCE, J., dissenting. Williams, Cook, counsel), appellant. (James for Walker and of Belleville C. Belleville, Nelson, appellees. Robert C. the court: opinion
Mr. KASSERMAN delivered JUSTICE This entered appeal judgment is an from $60,000 thereon Cynthia Lynch damages which awarded powderpuff sustained football which place took Collinsville School High football field on October Plaintiff Cynthia Lynch “tackle" testified had been at least three or High tradition Collinsville School for at years. four Previously boys’ at had been held halftime of homecoming testified that games, principal Rodney but Woods later games he those to be halted. principal, became he had ordered Lynch Plaintiff testified that she had via the school heard public system announcements, posters school and statements made a teacher who coached the girls game. Lynch senior Miss joined junior then girls’ team which was coached two teachers at high school. teachers conducted six practices junior five or girls and instructed them to purchase mouthguards. Lynch and wear Miss attended practices, some of the which property, were held on she changed clothes in the school room. There was minimal locker instruction on prior rules given girls to the *3 27, 1974,
On game October the was at the school football played bowl. The by field was a could barred to surrounded fence and have been the players by closing gates. girls the One consisted team of senior and junior girls up During game, made the half other. the second of the which 52-0, the eventually seniors Lynch won Miss was played quarterback and in by hit the girl face a on opposing just the team. She had the ball passed backwards, when she was hit. hitting She fell or was over her knocked broken, head on ground. the Her was her and she face bloodied and nose had to hospital be assisted from field. treated at a and the She was released of result of her evening days that and missed two school as a injury. eight Miss that her or nine Lynch changed testified behavior later, months which get along after she couldn’t She ran people. with away in her father’s car apprehended with several other people and was police the in both in custody Colorado and Utah. She was taken into Wyoming the car the time jobs after was six of wrecked. She had between trial, the accident and the time the was five of them. of and she fired from Raymond Lynch his permitted that one the reasons he testified daughter in play game kept was that would he felt under after the control the teachers He said that a few weeks present. being get along his After the daughter started harder with. to a in Belleville daughter hospital in admitted Wyoming, his was incident forcibly hospital while in the with weeks. She was restrained for two arms, She straps legs and and she was medicated. was leather her Dr. by Dr. and treated Busch Jerome. testified her plaintiff family and her Several friends They generally agreed that changed had after the accident. behavior others, friendly, outgoing, got along was 1974 she was well before however, disciplinary problems; and have a disruptive not did not lot of with, accident, along got get she was hard they observed that after the a be different from easily, totally person, different and would mad second to the next. one in who plaintiff participated
Several school friends of had advised of the powderpuff game girls really were testified Also, football, against rushing passer. as the rules of tackle rule been announced over testimony there was had paper system, pictures game appeared yearbook. Busch, began treating Anthony psychiatrist, Dr. K. testified that he 25,1975, in hospital emergency her Lynch Miss he saw June uncooperative placed had leather At that time to be room. she Dilantin, commonly used prescribed He medication restraints. be made. electroencephalogram (E.E.G.) that an epileptics, ordered pattern E.E.G. had an abnormal brainwave disclosed permanent lifelong Dr. Busch as or of duration. He diagnosed which injury as result of an can occur testified abnormal brainwave He definitely injury. had an felt fairly say that one could that she had cause for probability injury in all was the her difficulties. hypothetical question, quite probably to a Dr. Busch stated that response difficulties pattern Miss brainwave and behavioral Lynch’s abnormal injury caused which she received the head Arnold, University Eugene Donald football at the instructor Illinois, purpose promote testified that the rules is to he was other safety participants. He testified that not aware what- being played any equipment tackle football ever without at all mandatory and that helmet times practices soever the football injuries. testified that possibility because of of severe head He also *4 passer the specific prohibit player roughing rules a from because position passer vulnerable the after he releases the ball. School, Woods, High
Rodney the of Collinsville principal in which Campus, powderpuff game Greenwood testified that the the school’s plaintiff injured place was took at the football bowl of campus. principal, powderpuff Woods the Vandalia Before became games sponsored by place were the took at halftime of the school and boys’ homecoming games, that these cease when he games but he ordered In his principal. injured became was opinion, game the which fact, was not sponsored by game, the several prior school. request students had requested sponsor the but that school was denied. permission Several students also denied to announce were game the over the hear that an public system, school but he did made, unauthorized announcement at time he ordered had been which announcement “that the countermanding it and to advise the students game was not announced intercom before was correct.” He said that also were allowed to advertise on groups student school bulletin boards only first securing permission after assistant principal, but that posted often unauthorized notices are boards until discovered and Woods principal. removed the assistant related that teachers do supervise events and there authorized athletic were at teachers game. He powderpuff admitted athletic game field where the fenced been played was and could have closed to unauthorized use. He also testified that he never told the they teachers that could not coach the powderpuff game. Suarez, Charles a teacher of district and coach of defendant junior team in the October powderpuff game, testified that the principal never told him girls he not in the powderpuff could coach game. teacher, He that he stated employed by was a Spanish coach, school as a and that compensation coaching he no received Hoskins, School, Reese High an assistant principal at Collinsville testified that he was aware that the take powderpuff going place. He did not girls high know how were able use field, how they were practices why they afforded several teachers had during them practices since the was not or permitted. authorized He also testified that he knew it would tackle game played without equipment. jury finding plaintiff, Cindy Lynch, returned verdict *60,000.
and assessing damages They defendant also found against plaintiff Raymond Lynch. judgment The trial court entered verdicts, appeal has followed. fence,
Defendant school district first contends that it no has supervise or against warn the unauthorized use of its athletic fields. We initially brief, note that throughout its defendant insists football game was an unauthorized use of its athletic field. However, disagree we with this general contention. The returned for the plaintiff having they after been had to instructed determine whether agents acting defendant’s within *5 322 Pattern
scope adapted of their from Illinois authority. Two instructions Instructions, Civil, 1971), dealing Jury (2d No. 50.06 ed. No. 50.04 and In scope authority, objection of from defendant. were without given light instructions, general these rendered its of two could not have jury the in defendant’s verdict favor of it determined the unless time at the of employees acting scope authority were within of their the objected the instructions nor the accident. Defendants to neither scope The requested specific question verdicts as issues. of the of to those (Barkhausen agent’s authority is one of the jury fact for to determine. v. Naugher 562, 395 Ill. (1946), jury 70 N.E.2d A will be set 565.) (Lawson only aside if it is contrary to of the weight the manifest evidence. v. G.D. Searle & Co. 543, 356 Here, (1976), 779.) jury the 64 Ill. 2d N.E.2d weighed conflicting the will overturn a reviewing A court evidence. that, jury light in most appears taking verdict unless it all evidence favorably jury to the are appellee, the the conclusions reached (Harris City Granite palpably wholly and unwarranted. erroneous of City (5th 782, 1034.) Among N.E.2d the 365 App. jury the evidence, evidence for to conflicting enough was more than there was a The find that the school. activity was authorized school; public tradition at the the school was announced on system teachers; boards; girls and the were coached school bulletin practices games and the and assistant property; principal were on school principal knew and that the tackle football without was that teachers field fenced and coaching the was girls; playing were out; did not tell principal could have been and girls locked to keep in light In of this evidence girls. the teachers they could not coach verdict, game was an authorized support jury’s hold we activity. amended The case on four-count second went to complaint. Lynch, and counts plaintiff Cynthia Counts I and II to related III behalf and IV of I and II on of essentially counts repetitions against plaintiff Raymond for defendants Lynch. found Since of from that Raymond Lynch portion taken and no appeal I, Cynthia In I and II. count judgment, our to counts discussion is limited failing to of defendant Lynch alleged part ordinary negligence II, alleged In count she provide adequate equipment. appropriate and failing to defendant part wilful and wanton misconduct adequately 122, par. ch. (Ill. Stat. Rev.
Section 24 —24 Code School 24) provides: 24 — shall employees educational “Teachers other certificated relating In all matters discipline
maintain schools. children, the school discipline the schools in and conduct the pupils. they parents guardians stand in relation of with the This to all activities connected relationship shall extend safety exercised time program parents absence of their pupils guardians.” in several interpreted has been duty imposed by this section 63 Ill. 2d cases. Education Kobylanski v. Board Chicago physical sustained recovery sought 24—24 and the
education ruled that section supreme classes. Our upon identically the School Code conferred worded section 34—84a of educators in matters the status to the students parent guardian relating arising in suits out discipline Accordingly, of the students. *6 of “matters relating in and conduct of the schools discipline to the educators, children,” must impose liability against allege misconduct, prove ordinary and than wilful rather and wanton negligence. Gerrity v. Ill. 2d 373 N.E.2d Beatty (1978), 71
supreme court suits alleging ruled that is a distinction between there negligence arising relationship matters out of the teacher-student relating students, personal teacher’s and control of and supervision suits alleging negligence in separate furnishing equipment function of alleged to be inadequate, ill-fitting Kobylanski and defective. example case, of the former type involving disciplinary teacher’s and supervisory authority where, parentis because of the teacher’s in loco status, recovery ordinary could negligence only not be had for but wilful and policy wanton held that considerations misconduct. The court personal require teacher and student relationship desired between teachers to respect have latitude in broad and discretion However, situations. furnishing football Gerrity court found equipment function, for students and separate distinguishable was a and in this respect, public policy against any considerations dictate interpretation that obligation would relax a school district’s to insure that equipment provided for activities of the of football is fit for the purpose. function, For this districts are held to a the school ordinary Thus, care. inadequate to recover for received due to equipment, a student only ordinary negligence, need show rather than wilful and wanton misconduct. As noted I previously, count of the second amended complaint charged ordinary negligence defendant failing to provide adequate appropriate and powderpuff football II charged and count wilful and wanton misconduct part in failing adequately supervise of defendant powderpuff game. appropriate of count I were allegations under Gerrity, and appropriate Kobylanski. those of II under count were Since the jury returned general plaintiff, favor of it is impossible to ascertain whether the defendant was found guilty of wilful by Kobylanski, misconduct, wanton required as ordinary or Gerrity. negligence, as found to permissible be under It is opinion our the evidence adduced at trial was sufficient to justify jury to return a verdict on either basis. We that it is unnecessary upon hold to determine which theory the jury responsible. found the defendant
Defendant argues provisions under of section 24— stating that the relationship parent guardian to the students “* * * matters relating to the discipline and conduct of the may students be exercised at any in the safety supervision time for the pupils absence parents their guardians” (emphasis supplied), should construed to mean that liability may no attach under section 24 —24 plaintiff’s because parents
Defendant has cited authority proposition no that it is freed from its obligation to refrain from wilful wanton misconduct supervision of an activity authorized merely because of the fortuitous presence of the parents, student’s and we are not inclined to so construe the statute. The conferred relationship by section 24 —24 extends to teachers the status parent of a regarding matters of Kobylanski, discipline. Thus, teachers, under parents, only like are liable for wilful and wanton arising misconduct out of the teacher-student relationship in matters relating personal supervision to the teachers’ control of physical conduct or movement of the student. This supervision and control the teachers in the absence be exercised parents However, students’ guardians. furnishing of unsafe equipment or, here, as any equipment the failure to furnish for the use of *7 participants the in a game tackle football is type not the of activity school over which students’ parents position were in a any to exercise control. There is evidence that the game planned, announced and practiced without presence the plaintiff’s of parents. play decision to tackle football without any equipment consulting parents was made without of the participants. The 24 —24 purpose of section is to extend to teachers the limited liability of in parents relating personal matters to the teachers’ supervision and control of physical the conduct or movement of a student. Public policy argue strongly against any considerations rather interpretation obligation which would relax a school provide district’s to equipment suitable in engaged activity. (See for students this of Gerrity.) 24, It is our decision that under section teachers and other 24— certifiéd educational employees charged duty are of maintaining discipline in events; the schools in and that in all all activities connected with the school in program, parents the absence of the students’ guardians, they may exercise the status created the section for the safety and supervision impossible It that pupils. is to conclude defendant was safe duty provide equipment relieved of participants in grounds plaintiff’s tackle football parents were physically parents exerted no control or present. Her supervision over during her before and their activities either presence mere imposed does operate responsibilities not to alleviate the in Gerrity. supreme court Chimerofsky v. School District No. Defendant (1st contends that 371, 257 App. requires reversal here. Chimerofsky, injuries plaintiff boy was a who suffered 3/z-year-old he fell from a The trial playground school slide. court dismissed complaint, affirmed, and the social appellate reasoning that utility of furnishing governmental was a commendable playgrounds function which outweighed guarding against the burden of playground injuries arising from Defendant equipment. urges nondefective under Chimerofsky, fence, duty supervise, a school district has no warn of which arise from the unauthorized use of athletic fields. argument This activity overlooks the fact here basis, activity authorized opinion. as discussed earlier this On that Chimerofsky therefore, and, is distinguishable from this case controlling.
We are unimpressed likewise argument with defendant’s affirm this decision impose would all school unreasonable burden on districts and would make school insurers who anyone districts virtual participates in a pickup property. on school The authorized is clearly distinguishable pickup case from a reasons,
For foregoing two we hold the school district owed duties to under section 24 —24 the School Code Kobylanski Cerrity. holdings ordinary care These were the in providing adequate duty to be free of wilful wanton misconduct relating discipline matters and conduct the schools and the school children.
Defendant next erred in giving plaintiff’s contends the court instruction No. 30 to jury. 30 is Illinois adapted Instruction No. from Jury Instructions, Civil, Pattern (2d 1971) No. 60.01 ed. based on section 16 —8 of the 8). ch. (Ill. par. School Code Rev. Stat. 16 — The instruction states: “There was in force and effect in State of time Illinois at the complained pro- occurrence of a certain statute which vided that: the school board of district real acquiring estate and equipping, operating maintaining purposes fields, provided, shall over athletic have *8 and may directors, employ play leaders, supervisors, playground 326 thereof, may and athletic directors superintendents,
recreational or as it deems thereof steps provide protection take such to appropriate.” 16—8 provides:
Section School Code acquiring real school district “The school board of such it for the maintaining equipping, estate and and operating over have purposes provided in 16—7 shall Section fields, may athletic or playgrounds, grounds such recreation leaders, directors, recreation supervisors, employ play playground therefor, take such and superintendents or directors athletic sanitation, and care steps provide protection, for it management appropriate. thereof as deems and within acquired wholly If or outside partly real estate so lies village incorporated corporate any city, 1 mile limits of district, incorporated city, village in such town situated such such real over police protection town shall exercise control and the same extent estate its manner and to and the same police exercise city, village that such town would incorporated situated if real estate were protection control and thereover 122, Stat. ch. Ill. Rev. corporate within the limits thereof.” par. 16—8. a impose duty objects attempting
Defendant to this as instruction field, contrary to upon the the football school district earlier, Chimerofsky Chimerofsky Kobylanski. As discussed case, limited has been distinguishable Kobylanski from Plaintiff’s giving application by Gerrity. We find no error jury. Instruction No. 30 to the against the verdict was jury
Defendant next contends that the general verdict weight jury manifest The returned of the evidence. juryA verdict plaintiff applicable law. being after instructed weight of the only contrary will to the manifest be set aside if it is 543, 553, 356 64 Ill. (Lawson evidence. 2d v. G.D. Searle & Co. 442, 451, 779; (1959), 16 Ill. 2d N.E.2d Lau v. Bus Co. West Town jury A verdict unless 63.) court will not overturn reviewing to the favorable appears light most taking the evidence appellee, are erroneous jury palpably conclusions reached (5th wholly City Granite City unwarranted. Harris App. 365 N.E.2d palpably is not erroneous jury the instant case the verdict against was not wholly jury We that the verdict unwarranted. conclude weight manifest of evidence. was excessive finally Defendant contends palpably weight of the evidence. contrary to the manifest *60,000 injury awarded which caused abnormal or of pattern permanent lifelong brainwave to be of diagnosed which was *9 duration. primarily province
The amount of a is within verdict discretion Co. 2d jury. (Lau of the v. West Town Bus 452, 158 63, 69; Trailers, 50 (1st Dorsey N.E.2d Carlson Inc. Ill. App. 1065.) A will be set aside if large so passion prejudice. as to Lau. indicate The jury large passion verdict in case is not so as to indicate the instant or prejudice. as a damages diagnosed The for what was awarded lifelong or permanent plaintiff’s injury is evidence that the injury. There has made it employment. difficult for her We conclude that the to retain verdict was not excessive. above,
For the judgment reasons stated of the Circuit Court of Madison County is affirmed.
Affirmed. MORAN,
G. P. J., concurs. Mr. KUNCE, dissenting: JUSTICE A school board activity has no as legal duty supervise shown by the facts of the Although physical instant case. education and varsity athletics are integral parts all there is no programs, of most school in evidence this record that game any had connection with such any The programs program. or with other school game did place not take varsity at the Neither halftime of board, the school in principal anyone authority of the school nor authorized the game. Unpaid at game, teachers but there is no authorized, record of anything that did they being while there directed or controlled the school authorities as to an agency so create relationship. Failing to instruct a teacher not in participate after-school or weekend activities of pupils by the principal other school authorities does in my to, opinion approval constitute consent of or result responsibility for totally prove any plaintiffs activities. The failed to conduct of the school board that agents or its authorized was proximate plaintiff’s cause of injuries.
The majority opinion states that the jury weighed conflicting evidence; however, was, fact, there bearing no conflict evidence the question being of this activity. game being authorized school The such, tradition one time being but an- since discontinued as nounced public school’s system address and bulletin boards with- out authority, being coached by being paid, teachers off and not being on property, knowledge unlocked school with the principal his assistant of game admonishing and not the teachers to not participate same, in my opinion do not constitute evidence activity was authorized the defendant and are wholly insufficient to impose any duty on the testimony district. This did not conflict evidence presented by game the district that the was not authorized activity. The testimony principal games he ordered the discontinued when principal, game sponsored he became was not denied, the school pupils’ request sponsorship was announcement of public system over the school’s was unauthorized and his order countermanded and that he did not authorize the teachers to or coach the way no disputed or contradicted by any presented by plaintiffs. evidence testimony teacher, Suarez, and the assistant was no principal evidence of board authorization for the conduct of the its It all negative testimony to be used. was failed support plaintiffs’ proving burden of *10 authorized. The testimony presented by plaintiffs attempt in an to prove is, most, supervised game pure speculation authorized and at the that was clearly direct, by unequivocal positive controverted assumed, arguendo, presented evidence by Even if we the board. plaintiffs’ facts, testimony presented the jury’s some controverted erroneous, under all of this palpably wholly record is unwarranted and clearly contrary to the of all the weight manifest evidence. question
The real in dispute, before this court is whether the facts are review, then, and it is my opinion they question are not. The on is whether the facts sustain the the trial court. The material judgment of facts submitted to authority alleged agents of of question finding basically which a duty of could be established were law, uncontroverted. We essentially question have before us of may rule of set majority rely reviewing law which the that a not findings weight aside contrary trier of fact unless to the manifest 527, 56 Simon v. Horan App. the evidence 323 Ill. apply. (1944), does 897, v. 147; Crum Oil 70 Ill. 3d Corp. (5th 1979), App. N.E.2d Dist. Gulf 388 N.E .2d by the proved and extent are facts to be agency nature of an conflict,
plaintiffs, becomes they question but if are not in dispute or v. American Electrical (Freet one of be by law to determined the court. Supply 248, Co. Ill. N.E. An source of (1913), 933). agent’s 257 100 only be authority is the to bind can principal, power agent proved by principal. it or act of tracing to source some word (Merchant’s 41, 79 Shepard National Bank v. Nichols & Co. denied, N.E. 28.) must authority, disputed The fact of or agency or
329 ordinarily be acts or established evidence of the conduct v. persons. (Kapelski Alton principal or by agent statements to the or third & Southern R.R. (5th 42, 207, 1976), Ill. 343 N.E.2d App. Dist. 36 3d 210.) acts, There are expressed implied no either or conduct or statements authority the defendant to giving employees any board their in, participate supervise for this equipment furnish It my opinion instant case was an girls’ unauthorized, principle as a matter of law. The activity noncurricular 63 Chimerofsky No. School District announced in (1st Ill. App. board apply, therefore would should not duty be held to responsible for such had no since provide to this and should not be activity liable in damages to one the unrestricted of its voluntarily enjoying use premises play games. to
Further, I believe the in giving plaintiffs’ trial court erred instruc- tion jury. No. 30 to the merely Section 16 —8 the School Code states the purposes for which may acquire districts real estate use owned This them. they “may” statute informs school districts that leaders, employ play directors, etc., playground supervisors, for their playgrounds, grounds recreation By giving athletic fields. instruction, could very well have been led to believe that because a statute supervision authorized the of the field such mandated by the statute and to so requiring thus the district’s do school personnel to be to supervise the football field when game or activity in progress. This impose statute does not duty. Evidence tending prove city a statute or violation of ordinance, Civil, Instructions, adapting Jury the same to Illinois Pattern No. (2d 60.01 ed. 1971) (hereinafter IPI) should not given be unless statute is intended protect injury against question. This permissive statute is It provides cannot violated. —it
school districts permitted are and maintain acquire property purposes leaders, set out etc. It employ play require does not *11 district to do wishes, so. It if it but statute sets no standards for maintenance, operation, purposes equipping provided. v. Davis Marathon Oil Co.
Our supreme pointed out in 93, 97, that “the violation of stat- ute or ordinance designed of human protection property life or prima instruction, evidence of By merely giving this negligence.” facie the jury were told that passed legisla- this statute was in effect ture violated, for the purpose it life or that if protecting property and whereas, constituted evidence of negligence, this statute was not so de- signed. It has no application to the question negligence or relevance
or wilful As Pattern conduct of the district. the comments to Illinois Jury is not point Instructions “If the statute ordinance intended out: protect against injured injury question, [citation], or if the party class, is not protected [citation], within the the statute or ordinance IPI (Emphasis supplied.) should not jury’s be called to the attention.” 60.01, Comment, Civil No. (2d 1971). at 252 ed. erroneously instruction as informed the given
defendant judicial had a statute or decision. imposed on
Accordingly, stated, I respectfully reasons dissent and would the judgment County. reverse of the trial court of Madison al., Plaintiffs-Appellants, v. AMOCO OIL STANLEY K. STEWART et BARRETT, al., Plaintiff- COMPANY Defendants-Appellees. et J. — THOMAS al., Appellant, Defendants-Appellees. & COMPANY MARSHALL FIELD et 78-632, Nos. 78-633 cons. (5th Division) First District April Opinion filed