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Crohn v. Congregation B'nai Zion

AUGUST 15, 1974.

ERICA CROHN, A MINOR, BY MAURICE M. CROHN, HER FATHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

CONGREGATION B'NAI ZION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM J. SUNDERMAN, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

This action was commenced by Erica Crohn, a minor, by Maurice M. Crohn, her father and next friend, to recover damages for personal injuries sustained by the minor while attending a summer day camp operated by the defendants. Upon motion of the defendants, at the close of plaintiff's evidence, the trial court directed the jury to return a verdict for the defendants and against plaintiff. Plaintiff appeals from the judgment entered upon that verdict.

The sole issue presented for review is whether the trial court erred in directing the jury to return a verdict for the defendants.

At the trial, plaintiff's evidence was brief, and the facts stated on appeal are not disputed. During the summer of 1961, defendant Congregation B'nai Zion, a religious corporation, operated the defendant Congregation B'nai Zion Day Camp. Plaintiff — then 7 years of age — was enrolled by her parents, and paid a fee. On August 14, 1961, the day camp was conducted at a Cook County forest preserve north of the city of Chicago. Plaintiff attended the camp and sustained a fractured nose as a result of being hit with a baseball bat which was swung by one Yaer, a 10-year-old boy who was also attending the camp.

On the day in question approximately 150 children attended the day camp. During the morning hours they were engaged in various recreational activities, including softball, in an open field about 200 yards wide and 300 yards in length. The children were separated into groups of 10 to 15, each group being supervised by a counselor, and some by two counselors. At noon the groups retired from the playing field to eat lunch at picnic tables located nearby. The table nearest the playing field was 20 to 30 feet from the edge of the field. The space between the field and the tables was sparsely populated with trees.

Plaintiff, who was 18 years of age at the time of trial, testified that it was the lunch hour and she was returning from the water pump with a glass of water, watching it to make sure it didn't spill. She remembered seeing trees and picnic tables in front of her. As she was near a tree she heard someone shout, and she was hit on the nose. She did not remember seeing what hit her before she was hit. She saw other children within 3 or 4 feet of her. Jay Kleiman was a junior counselor. Plaintiff had not been at his picnic table when eating lunch. Her mother and two physicians then testified as to her injuries.

Jay Kleiman's evidence deposition was read to the jury. He testified that on August 14, 1961, the day of the accident, he was 15 years old; that during the lunch hour "two to four" baseball bats were lying loose on the ground within 15 feet of the whole play area, approximately 25 feet from the picnic table nearest the field; that he was the only counselor within a 25-foot radius of the accident; and that he was seated at a table, eating lunch and facing in the direction from which the minor plaintiff approached. He stated that within less than one minute the following events occurred: he saw Yaer pick up one of the bats and he yelled to him to put it down; Yaer did not heed him and began to swing the bat as one would to "warm up"; either before or immediately after he saw Yaer swinging the bat, he noticed the plaintiff walking toward him and approaching Yaer from behind; plaintiff was walking while looking down at a cup of water she was holding; Kleiman attempted to get up from the table as the plaintiff walked behind Yaer, but before he could do so she was struck in the face by the bat.

Kleiman further testified in his deposition that safety was generally discussed at counselors' meetings; that he did not recall whether baseball safety was specifically discussed; that the children were told at random not to swing bats or to take them from the playing field; and that he could not recall whether the entire group was told this on the day in question. Kleiman stated in his deposition that at the time there was no organized activity other than lunch, and the children were allowed to move about the area freely. He testified that there were some regulations promulgated by the Congregation concerning storage of equipment which was usually kept in a shed next to the playing field. When organized activity was planned for the afternoon the equipment was left in bags on or near the field. When no afternoon activity was anticipated, the equipment was stored either in the shed or in the school bus. On the day in question a baseball game was to commence after lunch, and during the lunch period the equipment — including the bats — was purportedly all stored in bags scattered throughout the field. Kleiman stated that the bags were loose so they would be available for anyone to get them. He further testified that the equipment had been left on or near the field for an hour or more before the accident. He did not see whether Yaer took a bat from a bag or one that was lying on the ground.

The standard of review to be applied in this case is whether or not all of the evidence, when viewed in the light most favorable to the plaintiff, so overwhelmingly favors the defendants that a contrary verdict cannot stand. Only when the question is answered in the affirmative can a directed verdict for defendants stand at the close of plaintiff's case. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.

Plaintiff's complaint charged defendants with specific acts of negligence substantially as follows:

1) Defendants employed and hired immature and inexperienced children to supervise the activities of the plaintiff;

2) Defendants permitted a small boy to swing a bat in an area where other children were playing and where their view was obstructed;

3) Defendants organized and knowingly permitted an activity which would cause the plaintiff to run in an area where another child was swinging a bat;

4) Defendants directed the plaintiff to play and run in an area without rendering the area safe for such activity, and failed to otherwise provide ...


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