A state appeals panel has given a lift to a legal action brought against a far northwest suburban school district by the family of a cheerleader, saying the school district may have known enough about the cheerleader’s three concussion events to no longer be protected by state immunity laws.
On July 5, a three-judge panel of the Illinois Second District Appellate Court reversed most of a McHenry County judge’s decision to grant summary judgment to the Huntley School District 158 in the legal dispute.
Judge Michael T. Caldwell had ruled in favor of the Huntley district in an ongoing dispute with a family seeking compensation for three falls their daughter sustained during cheerleading practice in the 2010-2011 school year. Other named defendants included freshman cheerleading coach Kimberlee Hoffman, coaches Juliann Brunken and Nathan Schmitt and athletics director Bruce Blumer.
Illinois Second District Appellate Justice Ann Jorgensen wrote the decision; Justices Kathryn Zenoff and Mary Schostok concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under limited circumstances permitted by the Supreme Court rule.
The Swanson family — parents Donald and Laurie Swanson and daughter Kelli Swanson, now an adult - said Judge Caldwell’s decision was inappropriate because the school district and other defendants should not have been considered immune from liability and the issue of whether the defendants’ conduct was willful and wanton should’ve been determined at trial. In her initial complaint, Swanson detailed her falls, injuries and symptoms, as well as the alleged conduct of coaches during the practices at which she fell and how they responded to her reports of injuries.
According to the panel’s opinion, Swanson said her allegations went beyond accusing the school district and her coaches of failing to diagnose a concussion, but also accused the school f ofailing three times to follow its own concussion protocol, which included National Federation of High Schools rules and the Illinois High School Association’s return-to-play policy, despite knowledge she fell on her head from a height of about 10 feet. She alleged she explicitly told Hoffman about her head injury and symptoms after the third fall and still the school did not implement concussion protocol.
The panel noted the level of knowledge the school and coaches had of the injuries was disputed, but said “certainly after the third fall, defendants knew that plaintiff exhibited symptoms that triggered the concussion protocol,” Jorgensen wrote. Jorgenen surmised that since there were at least sufficient allegations the school knew enough to activate concussion protocol, the Tort Immunity Act did not allow Caldwell to grant summary judgment.
Swanson also argued summary judgment was premature on the question of whether defendants engaged in willful and wanton conduct. Swanson said Hoffman “repeatedly displayed an utter indifference to or conscious disregard for (Swanson’s) safety by never removing her from participation in cheerleading,” per the opinion. “Even after she was informed (Swanson) displayed concussion symptoms such as vomiting, headaches and was not feeling well, Hoffman never followed policies and procedures that required plaintiff to be removed from participation until cleared to play.”
The panel said the defendants’ failed by basing arguments on cases involving single events in which there was no evidence of prior injuries, whereas Swanson alleged she suffered multiple incidents and repeatedly reported her injuries and symptoms to school officials. While the defendants made several arguments as to why they were not aware of Swanson’s condition, her complaint makes several contrary allegations that result in disputed material facts.
The defendants also said Swanson didn’t dispute their contention that Brunken and Blumer were never aware of her falls or injuries, and thus were entitled to summary judgment. Swanson didn't address that argument in her reply brief, and as such the panel affirmed that part of the trial court’s order while reversing the remainder of the summary judgment.