An Illinois state appeals court has reversed, in part, the ruling of a lower court, which granted summary judgment to a school district and other individual defendants in a case in which they were sued by a cheerleader after she suffered multiple falls during a cheerleading practice, which led to severe post-concussion syndrome.
In so ruling, the appeals court found that factual issues remained about whether the defendants actually had knowledge of plaintiff Kelli Swanson’s injuries and whether the defendants engaged “in willful and wanton conduct.”
The falls occurred during the 2010-2011 school year, when the plaintiff was a freshman at Huntley High School, which is part of defendant Consolidated School District 158 in Illinois. Freshman cheerleading coach Kimberlee Hoffman, a co-defendant, was the freshman cheerleading coach. Other co-defendants were cheerleading coaches Juliann Brunken (sophomore) and Nathan Schmitt (varsity).
Swanson had been a cheerleader since sixth grade. Prior to the cheerleading season at Huntley, she attended a cheerleading camp at the school in July 2010. During the camp, she was provided instruction on how to execute various cheers and stunts. The camp included coaches and cheerleaders from the University of Kentucky.
From Nov.18, 2010 to Dec. 10, 2010, the plaintiff sustained three falls, according to the court. The court went to deep lengths to explain the circumstances of the falls and how both parties staked out their positions regarding the level of awareness and care that was provided to the plaintiff.
On Nov. 18, 2011, Swanson sued the defendants, alleging negligence and willful and wanton conduct. The defendants raised sections 6-105 and 6-106 of the Tort Immunity Act as an affirmative defense. They also asserted that neither the plaintiff nor her family or physicians informed the defendants that plaintiff suffered a concussion or concussion-like symptoms during the freshman cheerleading season. Further, they allegedly did not observe such symptoms. Accordingly, the defendants argued that they could not be held liable for failing to properly assess or for failing to determine that the plaintiff suffered from a concussion. On Jan. 12, 2017, the defendants moved for summary judgment, arguing that: (1) the plaintiff’s claims were barred by section 6-105 and 6-106(a) of the Tort Immunity Act; and (2) the plaintiff failed to allege/demonstrate that defendants acted with willful and wanton conduct.
On April 27, 2017, the trial court granted the defendants’ motion for summary judgment, leading to the appeal. The plaintiff challenged the finding of immunity from liability under sections 6-105 and 6-106(a) of the Tort Immunity Act; and (2) argued that whether the defendants engaged in willful and wanton conduct presents a triable issue.
Regarding the Tort Immunity Act, the plaintiff argued that it was inapplicable because the defendants “undertook a duty to provide care.”
Swanson “argues that her allegations involve more than merely failing to diagnose a concussion. She claims that she alleged that the defendants undertook a duty based on the school’s concussion protocol (including the NFHS rules and the IHSA’s return-to-play policy) to remove a student athlete from play when the athlete exhibits symptoms consistent with a concussion. However, they failed to follow this policy on three occasions. Thus, in her view, they are not immune under the Tort Immunity Act.”
The plaintiff staked her argument to Grant v. Board of Trustees of Valley View School District No. 365-U, 286 Ill. App. 3d 642, 647, 676 N.E.2d 705, 221 Ill. Dec. 902 (1997), “wherein a parent sued a school district after her son committed suicide. The student had told other students at his high school that he intended to kill himself, and he wrote suicide notes. Other students reported his intention to a school counselor, who questioned the student, but took no action other than contacting his mother and telling her that she should take her son to the hospital for drug overdose treatment (but did not mention his suicide threats). As relevant here, in assessing the parent’s negligence count, the reviewing court noted that the complaint did not seek to impose liability for the district’s failure to examine the student or diagnose his condition, but alleged that the district, with knowledge of the student’s intent to commit suicide, failed to call for medical assistance, failed to inform his mother of his intention, and failed to implement a suicide prevention program. Id. at 646. Therefore, the court determined, the district was not immunized from liability by sections 6-105 and 6-106(a) of the Tort Immunity Act. Id.
“Here, the plaintiff argues that she alleged that the defendants repeatedly failed to follow their voluntary duty to remove her from participation in cheerleading, not that they failed to diagnose her condition. Her falling from 10 feet high on her head, she urges, is an obvious known risk to a known condition, as evidenced by the school’s extensive head injury protocol. Her allegations, she notes, are critical of the defendants’ failure to react to a known condition after she hit her head on three occasions. Recognizing concussion symptoms and when head injuries occur, the plaintiff asserts, which the defendants are trained to do under their concussion protocol, is different from identifying a disease. She contends that, while the immunities would apply if the plaintiff’s only criticism was failure to diagnose a concussion, the circumstances here are different and warrant a different result.”
At the very least, according to the appeals court, the plaintiff’s argument should be considered at trial since “a genuine material factual issue existed as to whether defendants had sufficient knowledge to trigger the concussion protocol and, thereby, were immunized under the Tort Immunity Act.”
Turning to whether the defendants engaged in willful and wanton, the court set out to “determine if the plaintiff has presented enough factual evidence to present the issue to the jury.” The appeals court again sided with the plaintiff, agreeing with her position that “this is not a case where the court can conclude that there is no evidence that the defendants acted with reckless disregard for the plaintiff’s safety. Not following concussion protocol … was not only dangerous, but also reckless.”
Kelli Swanson, Donald Swanson, and Laurie Swanson v. Consolidated School District 158 et al.;
App. Ct. Ill, 2nd Dist.; No. 2-17-0693, 2018 Ill. App. Unpub. LEXIS 1162; 7/5/18
