MELINDA MEDINA v. THE STATE OF ILLINOIS (2003)

OPINION

This cause comes before the Court on Claimant, Melinda Medina's claim against Respondent, State of Illinois, filed on or about November 2, 1998. The Court's jurisdiction is pursuant to Section 8(b) of the Court of Claims Act. (705 ILCS 505/8(b)(1996). Claimant seeks to recover damages from Respondent for sustaining a blinding injury to her left eye during an instructional softball game.

This cause was tried by our Commissioner in a trial conducted in August, 2001.

FACTS

The following facts were introduced into evidence at trial. The parties stipulated to all depositions and most facts. In fact, the only fact not agreed to was whether Claimant volunteered to play the position of catcher or was instructed to do so. Claimant was a sophomore at Northeastern University (University) in the fall of 1997. Claimant's desire was to become an elementary school teacher. She enrolled in certain physical education courses at the University as part of the University's teaching curriculum. She was required to take the softball course in question in order to learn the game of softball herself and how to teach the game to children.

Claimant was described as non-athletic, unassertive, not well-coordinated and possessing little, if any, athletic skill. In fact, on a scale of 1 to 10, Claimant measured her athletic ability at 3. Claimant did not play sports regularly. She had never played softball up until her first year in college. She was not a fan of baseball or organized softball.

Claimant's softball course was taught by Professor Betty Fields. Professor Fields was experienced, having coached, instructed, and taught softball since the 1970's. This course taught the different positions and the rules of the game. A different position or aspect of the game was taught in each session. The softball course consisted of 40 minutes of instruction followed by an actual game at the end of session. A 14-inch softball was used and no fast pitching was allowed. A full range of equipment, including a catcher's mask, pads, guards and mitts, were available for players to use. According to Professor Fields, the catcher's mask was purchased by the University specifically for the softball course. Professor Fields did not require the students to wear the equipment. She left it up to the students to decide whether or not to use the available equipment.

The course was populated by students of varying athletic experience and ability, including former University varsity softball team members. Unfortunately, the University had previously phased out the women's varsity softball team, leaving the varsity players with no recourse other than to play organized games in this course. Professor Fields knew the abilities of the athletes and the non-athletes. Claimant wore prescription glasses during the day and during the softball classes. Professor Fields questioned Claimant about her glasses and was told that although the glasses would shatter if hit by the softball, Claimant needed the glasses to see.

On the day in question, Professor Fields taught the position of catcher. Claimant claims that she was assigned to play the catcher position despite her desire not to do so. Professor Fields claims that Claimant requested to play the catcher position. Despite this factual dispute, it is clear that Claimant did not use the catcher's mask provided.

During the post-instruction game, Claimant, while playing the catcher's position, was forced to participate in a play at the plate. The ball was hit into the outfield, and the outfielder threw the ball to Claimant. The parties could not identify the outfielder as a former varsity softball team member or a non-athlete student. Claimant admits that she misjudged the ball. The ball hit Claimant in the face, breaking her glasses, and forcing lens shards into her left eye resulting in blindness.

Claimant's expert, Ementi Coary, testified that regardless of whether Claimant had used the mask provided, Claimant would have sustained the injury, because she was taught to remove the mask when participating in a play at the plate or when she, as the catcher, was outside of the catcher's area.

Claimant claims that Respondent was negligent in at least two ways. First, Respondent was negligent by allowing the students to choose whether to use safety equipment and not require the use of the equipment. Second, Respondent negligently allowed Claimant to wear glasses without a catcher's mask while playing the catcher position. Claimant also argued that a player misjudging the ball is a foreseeable occurrence.

Respondent argued that the risk of injury in a softball game is foreseeable. Claimant knew that someone was on third base and knew that it was foreseeable that there would be a play at home plate. Claimant could have purchased safety goggles and should have worn the equipment provided. She should have been better prepared and, at minimum, was comparatively negligent.

ANALYSIS

To establish a prima facie case in a tort action for an injury to a student participating in a physical education class or school activity, the student or plaintiff must prove: (1) that the defendant owed a duty to exercise due care for the safety of the student; (2) the actual degree of care required of the defendant; (3) that the defendant failed to exercise the requisite degree of care; and (4) that the defendant's failure to exercise due care was a proximate cause of the student's or plaintiff's injury. Lynch v. Board of Education (1980), 82 Ill.2d 415,412 N.E.2d 447. A defendant will not be liable if: (1) the defendant is immune from suit; (2) the defendant exercised reasonable care to protect the student or plaintiff from harm; (3) the proximate cause of the student's or plaintiff's harm was not the conduct of the defendant; and (4) the student or plaintiff assumed the risk of harm. Id.

To impose liability upon educators for personal injuries sustained by students during school activities, a student must allege and establish that when educators acted, or failed to act, it was with knowledge that such conduct posed a high probability of serious physical harm to others. Weiss v. Collinsville Community Unit School District (1983), 119Ill.App.3d 68,456 N.E.2d 614.

Generally, school officials and teachers are required to exercise the degree of care that a reasonably prudent person would exercise under the circumstances. The standard of care for school officials and teachers may be expressed in terms of the degree of care necessary to protect students from unreasonable risks of harm. The requisite degree of care varies with the experience of the person who supervises or conducts the activity in which the student was injured, with a greater degree of care being required of a person whose experience made, or should have made the person more aware of the risk of harm or the foreseeability of danger resulting from the activity.

The skill and ability of the student in the activity in question is important in showing that the degree of care exercised by the Respondent was reasonable. Weiss v. Collinsville Community Unit School District (1983), 119 Ill.App.3d 68, 446 N.E.2d 614. Generally, the younger or less experienced the student, the greater the care that must be taken in protecting the student from injury. Lueck v. Janesville (1973), 57 Wis.2d 254, 204 N.W.2d 6. A student's experience in the activity in question is relevant to both the student's awareness of the risks involved in the activity and the student's ability to perform the activity safely.

Instruction may be inadequate, not only on the basis of evidence that the factual instruction given was not adequate, but also by evidence that the person conducting the class or activity failed to give proper consideration to the physical capabilities of the student who was injured. Landers v. School District (1978), 66 Ill.App.3d 78,383 N.E.2d 645. The school is not, however, an insurer of a student's safety. Brackman v. Adrian (1971), 472 S.W.2d 735. Injuries occur in athletic competition. It is common knowledge that children participating in games or in any ordinary form of play may injure themselves and that no amount of precaution or supervision will avoid such The parties have not raised or argued the applicability of the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat. 1973, ch. 85, par. 1-101 et seq.). We are therefore not called upon to pass on its application to this case. See Tanari v. School Directors (1977), 69 Ill.2d 630, 373 N.E.2d 5.

We find that Claimant has satisfied the burden required to establish and sustain a successful action against Respondent. The evidence indicates that Claimant was non-athletic and woefully inexperienced at softball. Her athletic ability was judged as a 3 on a 1 to 10 scale. She did not play sports regularly. In fact, she had never played softball until her first year in college. She was not a fan of baseball or organized softball. She did not watch baseball or softball. She had enrolled in the softball course solely to learn how to teach softball to children.

Professor Fields was a highly experienced softball teacher, coach, and instructor. She knew of the abilities of all of the class participants. Taking into consideration Claimant's experience and athletic ability combined with Professor Fields experience, Professor Fields owed Claimant a high degree of care. She breached this duty by, among other actions and/or inactions, allowing the non-athletes to play in games with the varsity athletes. At minimum, Professor Fields should have made Claimant wear protective equipment.

A defendant can be held liable for failing to maintain reasonably safe facilities for a class or activity or failing to provide or to require students to wear appropriate protective equipment. Berman v. Philadelphia Board of Education (1983), 456 A.2d 545, Lynch v. Board of Education, supra. Professor Fields was aware of the risk of injury inherent in the activity in which Claimant was participating and also was aware of available equipment that would effectively lessen the risk of injury. Despite whether Claimant would have incorporated the technique of tossing the catcher's mask aside for the play, Professor Fields failure to require Claimant to wear a mask, especially since Claimant informed Professor Fields that her glasses would break if struck by the softball proximately caused Claimant's injury. Moreover, Claimant's misjudgment of the throw was a foreseeable occurrence.

This Court finds that Claimant has sufficiently presented and supported her claim and thereby finds in Claimant's favor and awards Claimant $100,000.

Claimant, however, was not free from fault. She was aware that she possessed little athletic ability. She was also aware that her glasses were fragile and inappropriate for softball. Additionally, by her own admission, Claimant misjudged the ball, which also was a proximate cause of her injury. Illinois has adopted comparative negligence, which reduces the amount of a plaintiff's recovery by the percentage fault assigned to plaintiff. Fetzer v. Wood (1991), 211 Ill.App.3d 70, 569 N.E.2d 1237. This Court finds Claimant to be 25% at fault for her own injury. This Court therefore reduces Claimant's $100,000 award by 25%. Claimant is awarded $75,000 in full satisfaction of her claim.

JANN, J.