Scott Holland Jul. 12, 2016, 3:01pm

A wayward aluminum bat that struck and injured a Glenbrook North High School student was not the responsibility of the school or its physical education teachers, a state appellate panel has found. 

The Illinois First District Appellate Court June 17 issued an unpublished order affirming the decision of Cook County Circuit Court Judge Eileen Mary Brewer, who granted summary judgment to Northfield Township High School District 225 and two teachers, Jillian Nowak and Mark Rebora. The school and teachers faced a complaint from Perry J. Shwachman and his daughter, Blair Shwachman, who purportedly injured during a gym class mushball game. 

Justice Jesse Reyes wrote the opinion; Justices Bertina E. Lampkin and Eileen O’Neill Burke concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances permitted by the Supreme Court rule. 

At issue was an appeal on Brewer’s ruling granting summary judgment on the Shwachmans’ third amended complaint. The root incident was a May 31, 2011, honors gym class in which a student swinging at a mushball ultimately lost control of his bat, throwing it toward a group of students — standing where their instructors had directed — striking and injuring Blair Shwachman. 

On Nov. 24, 2014, Brewer granted summary judgment. She noted the teachers staged the mushball game at back fields without a backstop fence because the softball field was unavailable. But the teachers “took conscious steps to take safety precautions to separate batters from students who were not on the field.” Further, she said the Shwachmans failed to establish how the use of a bat in a game constituted the “willful and wanton conduct” threshold to hold the school liable for the injury. 

In his analysis, Reyes examined the state’s Tort Immunity Act, specifically Section 3-108, which addresses “supervision of an activity or use of property.” The Shwachmans, in complaint and appeal, argued the defendants “supervised, directed, controlled and instructed the students with a conscious disregard for their safety. … (They) knew of the hazards created by directing the students to line up on the makeshift, third-base line of a soccer field, while waiting to take their turn at bat in mushball.” 

For its part, the school noted “there had never been an instance of a student being injured by a thrown bat in at least the last 22 years and ‘hundreds’ of mushball games on the backfields.” And while absence of a prior incident does not preclude a determination of willful and wanton conduct, and although the teachers acknowledged they are aware batters can lose control and safety barriers are important, Reyes wrote the justices “would be hard-pressed to conclude that the activity involved ‘probable’ harm or danger.” 

Specifically, “Rebora marked off an area away from home plate — which he ‘thought was a very safe area’ — for students to wait for their turn at bat. He and Nowak enforced placement at this location and repeatedly cautioned students who would encroach upon the playing field. The teachers thus attempted to minimize the possibility — however remote — that a student would be hit by a bat or otherwise injured during the game.”

Further, Reyes wrote, even using the softball field would not have protected all students, as the bat could have flown toward a pitcher, fielder or on-deck batter, which he said amounted to more evidence the teachers took “reasonable precautions” regarding student safety.

Since the justices determined the defendants were entitled to the summary judgment Brewer granted, Reyes said they did not need to consider the Shwachmans’ argument the circuit court erred on the issue of discretionary immunity.

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