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Lynch v. Bd. of Education





APPEAL from the Circuit Court of Madison County; the Hon. MOSES HARRISON, III, Judge, presiding. MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

This is an appeal from a jury verdict and the judgment entered thereon which awarded Cynthia Lynch $60,000 damages for injuries sustained in a powderpuff football game which took place on the Collinsville High School football field on October 27, 1974.

Plaintiff Cynthia Lynch testified that the "tackle" powderpuff football game had been a tradition at Collinsville High School for at least three or four years. Previously it had been held at halftime of the boys' homecoming games, but principal Rodney Woods later testified that when he became principal, he had ordered those games to be halted. Plaintiff Lynch testified that she had heard of the game via the school public address system announcements, posters at school and statements made by a teacher who coached the senior girls in the game. Miss Lynch then joined the junior girls' team which was coached by two teachers at the high school. The teachers conducted five or six practices for the junior girls and instructed them to purchase and wear mouthguards. Miss Lynch attended some of the practices, which were held on school property, and she changed clothes in the school locker room. There was minimal instruction on football rules given to the girls prior to the game.

On October 27, 1974, the game was played at the school football bowl. The field was surrounded by a fence and could have been barred to the players by closing the gates. One team consisted of senior girls and junior girls made up the other. During the second half of the game, which the seniors eventually won 52-0, Miss Lynch played quarterback and was hit in the face by a girl on the opposing team. She had just passed the ball when she was hit. She fell or was knocked over backwards, hitting her head on the ground. Her face was bloodied and her nose broken, and she had to be assisted from the field. She was treated at a hospital and released that evening and missed two days of school as a result of her injury. Miss Lynch testified that her behavior changed eight or nine months later, after which she couldn't get along with people. She ran away in her father's car with several other people and was apprehended by the police in both Colorado and Utah. She was taken into custody in Wyoming after the car was wrecked. She had six jobs between the time of the accident and the time of the trial, and she was fired from five of them.

Raymond Lynch testified that one of the reasons he permitted his daughter to play in the game was that he felt the game would be kept under control by the teachers present. He said that a few weeks after the game, his daughter started being harder to get along with. After the incident in Wyoming, his daughter was admitted to a hospital in Belleville for two weeks. She was forcibly restrained while in the hospital with leather straps on her legs and arms, and she was medicated. She was treated by Dr. Busch and Dr. Jerome.

Several friends of the plaintiff and her family testified that her behavior had changed after the accident. They generally agreed that before 1974 she was friendly, outgoing, got along well with others, was not disruptive and did not have a lot of disciplinary problems; however, they observed that after the accident, she was hard to get along with, got mad easily, was a totally different person, and would be different from one second to the next.

Several school friends of the plaintiff who had participated in the powderpuff game testified that the girls were really not advised of the rules of tackle football, such as the rule against rushing the passer. Also, there was testimony that the game had been announced over the school address system, and pictures of the game appeared in the paper and the school yearbook.

Dr. Anthony K. Busch, a psychiatrist, testified that he began treating Miss Lynch on June 25, 1975, when he saw her in the hospital emergency room. At that time she was uncooperative and had to be placed in leather restraints. He prescribed Dilantin, a medication commonly used for epileptics, and ordered that an electroencephalogram (E.E.G.) be made. The E.E.G. disclosed that plaintiff had an abnormal brainwave pattern which Dr. Busch diagnosed as permanent or of lifelong duration. He testified that the abnormal brainwave can occur as a result of an injury and that one could fairly definitely say that she had had an injury. He felt that in all probability an injury was the cause for her difficulties. In response to a hypothetical question, Dr. Busch stated that quite probably Miss Lynch's abnormal brainwave pattern and behavioral difficulties were caused by the head injury which she received in the powderpuff football game.

Donald Eugene Arnold, an instructor in football at the University of Illinois, testified that the purpose of the rules in football is to promote the safety of the participants. He testified that he was not aware of any other tackle football game ever being played without any equipment whatsoever and that the football helmet is mandatory at practices at all times because of the possibility of severe head injuries. He also testified that specific rules prohibit a player from roughing the passer because of the vulnerable position of the passer after he releases the ball.

Rodney Woods, the principal of Collinsville High School, Greenwood Campus, testified that the powderpuff game in which plaintiff was injured took place at the football bowl of the school's Vandalia campus. Before Woods became principal, the powderpuff games were sponsored by the school and took place at halftime of the boys' homecoming games, but he ordered that these games cease when he became principal. In his opinion, the game in which plaintiff was injured was not sponsored by the school. In fact, prior to the game, several students had requested that the school sponsor the game, but that request was denied. Several students were also denied permission to announce the game over the school public address system, but he did hear that an unauthorized announcement had been made, at which time he ordered an announcement countermanding it and to advise the students "that the football game that was announced on the intercom before was not correct." He also said that student groups were allowed to advertise on school bulletin boards only after first securing the permission of an assistant principal, but that often unauthorized notices are posted on the boards until discovered and removed by the assistant principal. Woods related that teachers do supervise authorized athletic events and there were teachers present at the powderpuff game. He admitted that the athletic field where the game was played was fenced and could have been closed to unauthorized use. He also testified that he never told the teachers that they could not supervise or coach the powderpuff game.

Charles Suarez, a teacher of defendant school district and coach of the junior team in the October 1974 powderpuff game, testified that the principal never told him he could not coach the girls in the powderpuff game. He stated that he was a Spanish teacher, not employed by the school as a coach, and that he received no compensation for coaching the game.

Reese Hoskins, an assistant principal at Collinsville High School, testified that he was aware that the powderpuff game was going to take place. He did not know how the girls were able to use the high school field, how they were afforded practices or why they had several teachers with them during the practices and game since the game was not authorized or permitted. He also testified that he knew that it would be a tackle game and played without equipment.

The jury returned a verdict finding for the plaintiff, Cindy Lynch, and assessing damages at $60,000. They also found for the defendant against plaintiff Raymond Lynch. The trial court entered judgment on the jury verdicts, and this appeal has followed.

• 1, 2 Defendant school district first contends that it has no duty to fence, supervise or warn against the unauthorized use of its athletic fields. We initially note that throughout its brief, defendant insists that the powderpuff football game was an unauthorized use of its athletic field. However, we disagree with this contention. The jury returned a general verdict for the plaintiff after having been instructed that they had to determine whether defendant's agents were acting within the scope of their authority. Two instructions adapted from Illinois Pattern Jury Instructions, Civil, No. 50.04 and No. 50.06 (2d ed. 1971), dealing with scope of authority, were given without objection from defendant. In light of these two instructions, the jury could not have rendered its general verdict in favor of plaintiff unless it determined that the defendant's employees were acting within the scope of their authority at the time of the accident. Defendants neither objected to the instructions nor requested specific verdicts as to those issues. The question of the scope of an agent's authority is one of fact for the jury to determine. (Barkhausen v. Naugher (1946), 395 Ill. 562, 70 N.E.2d 565.) A jury verdict will be set aside only if it is contrary to the manifest weight of the evidence. (Lawson v. G.D. Searle & Co. (1976), 64 Ill.2d 543, 356 N.E.2d 779.) Here, the jury weighed the conflicting evidence. A reviewing court will not overturn a jury verdict unless it appears that, taking all evidence in light most favorably to the appellee, the conclusions reached by the jury are palpably erroneous and wholly unwarranted. (Harris v. City of Granite City (5th Dist. 1977), 52 Ill. App.3d 782, 365 N.E.2d 1034.) Among the conflicting evidence, there was more than enough evidence for the jury to find that this activity was authorized by the school. The game was a tradition at the school; it was announced on the school public address system and school bulletin boards; the girls were coached by teachers; practices and games were on school property; the principal and assistant principal knew that the game was tackle football without equipment and that teachers were coaching the girls; the playing field was fenced and could have been locked to keep the girls out; and the principal did not tell the teachers they could not coach the girls. In light of this evidence in support of the jury's verdict, we hold that the game was an authorized school activity.

The case went to the jury on a four-count second amended complaint. Counts I and II related to plaintiff Cynthia Lynch, and counts III and IV were essentially repetitions of counts I and II on behalf of plaintiff Raymond Lynch. Since the jury found for defendants against Raymond Lynch and no appeal was taken from that portion of the judgment, our discussion is limited to counts I and II. In count I, Cynthia Lynch alleged ordinary negligence on the part of defendant in failing to provide adequate and appropriate equipment. In ...

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