APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
V. DALY, Judge, presiding.
MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
The plaintiff, Sonny David Stanley, was awarded $40,000 by a jury for injuries sustained when he was struck on the head by a baseball bat while in a playground in which the defendant, Board of Education, was conducting its summer recreational program. The defendant contends the following: it was entitled to a directed verdict; an improper instruction was given; it was prejudicial error to admit certain testimony of a purported expert.
During the afternoon of July 16, 1963, the plaintiff was playing either a game of fastpitch or "pinners" (bouncing a ball against the wall), in the Yates Elementary School yard where the defendant, Board of Education, was conducting its summer recreational program which was to provide a place during the day for children where there would be supervised activities. Brochures or flyers were distributed explaining the program. The program at this school which included both outdoor and indoor activities was under the direction of Coach Miesco Kowalczyk, a physical education teacher, who had the responsibility of running the program and supervising his assistant junior leaders. One of the outdoor activities was a game called fastpitch baseball. In that game one person would throw a rubber ball trying to get it into a strike zone marked off on the side of the wall; the batter would, of course, try to hit the ball. It was a policy of the school to supply bats for the baseball game, but only softball bats.
Between 12:30 and 1:00 P.M., during the lunch hour, the playground was to be supervised by Jerry Iversen, a seventeen-year-old junior leader. Concededly, it was his responsibility to see to it that the younger children were not playing too close to the older boys. Iversen had been a pupil of Kowalczyk's for a considerable length of time, and the coach believed him qualified to supervise the playground activities.
Iversen could not recall if he had checked the area prior to the occurrence. He said he was handing out and setting up equipment at the time of the occurrence. Hobart Stanley, a brother of the plaintiff, testified that Iversen was shooting baskets some distance away from the occurrence at the time his brother was injured.
Hobert also testified that there were three or four fastpitch games going on in the area at the time of the occurrence. Previously he, the plaintiff and some other boys were playing fastpitch next to Joseph Lehner when someone let the bat fly the first time. Hobart said he was afraid that someone would get hurt so he and the other players, including the plaintiff, moved.
Lehner, Roy Brown, Roy Lawniczak, and John Larson were all playing fastpitch together at the time of the occurrence. Lehner stated that he took a bat from the school's storeroom. He had the general permission of the coach to take equipment. Lehner, who was sixteen at the time of the occurrence, testified that after four boys started their game of fastpitch baseball the plaintiff was asked to move. Lehner stated that the plaintiff did move but returned after their fastpitch game had started; when he returned he was playing about 25 to 30 feet from the fastpitch game.
The day was warm and Lehner, who was batting, said his hands were very moist. The bat he was using had no tape. There was a league bat around. If the bat he was using was a league bat, it was not the school's, but if it was a softball bat, then it was the one he had taken from the school's storeroom. The knob around the handle of the bat he was using was frayed. He was swinging very hard when the bat left his hands and ricocheted off the building striking the plaintiff in the head.
Roy Lawniczak testified that the bat they were using was not a brand new bat. It was a softball bat upon which the knob handle was about half worn away. There may have been a little tape left on the handle. He wasn't sure if the bat was his or if it belonged to the school.
John Larson didn't know who owned the bat or where it came from, but he did remember that the handle had no tape on it.
Coach Kowalczyk explained that having tape on the bats made the use of the bats safer, but the tape sometimes wore off or was peeled off by the children. The coach said that when the knob is worn off the handle the bat is discarded. The bat will lose its knob when it is continually dropped on the blacktop surface. After the occurrence the coach saw the bat that he believed the plaintiff was struck by. He couldn't remember if the bat was taped but he did think it had a knob on it. He said it was a "like new" softball bat. The students were discouraged and prevented from bringing or using league bats in the schoolyard. The bat he saw was not owned by the Board of Education. At a pre-trial deposition he had said to the best of his recollection he believed the bat was owned by the Board of Education. In his opinion a safe distance between batters, spectators, or someone playing another game would be about 25 feet, but, if teenagers are playing fastpitch baseball that eight-year-old children should be perhaps 50 feet away. He did not like to see eight-year-olds playing at the same time "in the vicinity" of teenagers.
Frank Jambois was called as an expert witness in playground supervision and game safety. His qualifications included a bachelor's degree in physical education, a master's degree in educational training with a minor in physical education and past Director of Athletics for the Chicago Athletic Association for seven years; he had also taught physical education and supervised adults and children. He was familiar with the game called fastpitch as well as other playground games. His training and experience had included the supervision of games with bats and the safety factors involved.
In answer to a hypothetical question Mr. Jambois stated that 30 feet was not a safe distance between an older batter playing fastpitch baseball and another group of youngsters playing ball. This game constitutes some danger at any time when there are youngsters in the area.
The plaintiff alleges in substance that the defendant was negligent by supplying a defective bat, failing to warn the plaintiff and failure to supervise.
The defendant argues that there is no "probative" evidence that the bat that struck the plaintiff was a school bat or was defective, the plaintiff was warned and, since no supervision could prevent a flying bat from ricocheting off a school wall, the defendant's conduct was not a proximate cause of the injury.
Lehner testified that he had taken a bat from the school storeroom; if it was a softball bat that flew from his hands it was a school bat. Lawniczak testified that Lehner was using a softball bat. Lehner and Larson both testified there was no tape on the bat; Lehner and Lawniczak testified that the knob on the handle was partly worn away. Kowalczyk testified that he put tape on the bats to make them safer and when the knob is worn off the handle the bat is discarded. From this evidence a fact ...