Student hurt in floor hockey game should be allowed to sue Conant H.S., District 211, appeals panel says

By Scott Holland | Apr 11, 2016

The state’s largest public high school district, serving students from several communities in northwest suburban Cook County, will need to defend against a personal injury lawsuit brought by a student who said a gym teacher’s decision to not require eye protection for students playing floor hockey left him with an injured eye.

Evan Barr was a 15-year-old student at Conant in suburban Hoffman Estates when he suffered eye injuries during a floor hockey game on June 3, 2010. Arguing he should have been provided protective eyewear, Barr filed a complaint against the high school, Township High School District 211 and Conant physical education teacher Lauren Cunningham, alleging “willful and wanton misconduct.”

 Cook County Circuit Judge Diane Shelley granted the defendants’ motion for a directed verdict after determining Barr failed to provide evidence sufficient to support the “willful and wanton” conduct allegations needed to overcome immunity protections provided to the district and teacher under state law.

Barr appealed the circuit court decision. The First District Appellate Court reversed the decision March 30 and remanded the case for a new trial. Justice Terrence J. Lavin wrote the majority opinion; Justice Aurelia Pucinski concurred. Presiding Justice Mary Anne Mason dissented in the judgment and opinion.

In reviewing the district’s immunity argument, justices said the issue becomes the definition of “willful and wanton misconduct.”

“Barr contends that viewed in the light most favorable to him, the evidence demonstrated that Cunningham consciously disregarded the safety of her students when she did not require them to wear goggles during floor hockey despite knowing that the ball (1) would occasionally pop up off the ground and (2) had the potential to hit students in the face. But the failure to take every conceivable precaution to avert danger does not amount to willful and wanton conduct,” Lavin said.

Lavin noted several steps were taken in the name of student safety: the students used a safety “squishy ball” and plastic sticks, as opposed to the conventional puck and wooden sticks. The game had just 12 players, on account of confined space, and Cunningham “banned certain tactics particularly likely to cause injury, such as high-sticking, checking, tripping, and lifting the ball with the stick.”

She did not, however, testify that she believed such measures would keep the ball from hitting students’ eyes. A jury, Lavin reasoned, could find she “did nothing to mitigate this particular danger.” According to court documents, the teacher did not require students playing in the game from wearing goggles, which were available. And that fact, the justices said, meant “the trial court should have allowed this case to go to the jury for its consideration, simply because the conscious decision to forego the use of already-available safety equipment is the sort of conduct that a jury could find to be willful and wanton.”

Ultimately, Lavin noted, while Barr’s “evidence may not be the most compelling or dramatic presentation possible … we simply cannot say that this evidence so overwhelmingly favors defendants that a verdict in plaintiff’s favor could never stand.”

In her dissent, Mason wrote the teacher’s decision to not give the students goggles to wear while playing floor hockey should not be considered “willful and wanton.” Instead, Mason said, this is a quintessential example of a teacher taking, at worst, ‘insufficient precautions’ for her students' protection.”

Mason, summarizing her dissent, said the majority decision represented a dangerous precedent for school districts and other public entities, as it would require them “to take every possible precaution to prevent all injuries, no matter how remote and improbable those injuries may seem, lest they find themselves liable for willful and wanton conduct.”

According to Cook County court records, Barr was represented by attorney Daniel J. Kaiser, of Bensenville, while the District 211 defendants were represented by the firm of Judge & James, of Park Ridge.

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Illinois First District Appellate Court Judge James Hoban Fisher Kaiser Law Township High School District 211

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