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Lynch v. Board of Education





Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. Moses Harrison, III, Judge, presiding.


Rehearing denied November 26, 1980.

The plaintiffs, Cynthia L. Lynch, by her father and next friend, Raymond L. Lynch, and Raymond L. Lynch, individually, filed a two-count complaint in the circuit court of Madison County on September 12, 1975. In count I Cynthia sought damages from the defendant, the board of education of Collinsville Community Unit District No. 10, for injuries she suffered during a "powderpuff" football game held at the Vandalia campus of the Collinsville high school on October 27, 1974. Count II consisted of the same pleaded facts, but damages were sought by Raymond Lynch for the expenses he had incurred as a result of Cynthia's injuries. An amended complaint was filed on October 9, 1975. It added a paragraph to each count of the original complaint alleging that the defendant possessed insurance coverage. The defendant filed an answer on January 6, 1976. On March 21, 1977, the plaintiffs filed a second amended complaint which consisted of four counts. Upon a motion to dismiss, the court ordered, on April 6, 1977, that counts I and III be dismissed. The defendant filed an answer to the remaining counts. Thereafter on March 9, 1978, the first day of trial, the court granted the plaintiffs' motion to reinstate counts I and III of the second amended complaint. In count I, Cynthia alleged that the defendant was negligent in failing to provide her with protective equipment. In count II, Cynthia alleged that the defendant was wilfully and wantonly negligent by failing to supervise the football game. In counts III and IV, Raymond Lynch repeated the allegations of counts I and II, respectively. At the conclusion of the trial, a jury returned a general verdict for Cynthia in the amount of $60,000; the jury returned a verdict against Raymond Lynch on counts III and IV. Judgment was entered on the verdicts on March 15, 1978. Subsequently, Cynthia, by now of age, was substituted as party plaintiff in her own name. The defendant's post-trial motion to vacate the judgment was denied by the trial court on August 13, 1978. The defendant appealed to the Appellate Court for the Fifth District. The appellate court, with one justice dissenting, affirmed the judgment of the circuit court. (72 Ill. App.3d 317.) We subsequently granted the defendant's petition for leave to appeal. 73 Ill.2d R. 315(a).

Since an issue is raised herein as to whether the jury's verdict in favor of Cynthia was against the manifest weight of the evidence, a detailed recitation of the facts is warranted. We note, incidentally, that since no appeal was taken from the judgment entered against Raymond Lynch the merits of that judgment are not before us.

The plaintiff, Cynthia Lynch, was playing quarterback on the junior girls' football team on October 27, 1974. She had thrown a pass to a teammate when she was struck in the face by an opposing player and knocked down. The back of her head struck the ground with considerable force. Cynthia was taken to the hospital by her parents, who had been at the game as spectators. The hospital records admitted into evidence at the trial reveal that Cynthia suffered a small linear fracture of the nasal bone. The senior girls eventually won the game 52 to 0.

From the voluminous testimony adduced at trial it appears that the junior-senior "powderpuff" football game had been played each year as a half-time event of the homecoming varsity football game from 1970 to 1973. In 1974, when Rodney Woods became the principal of Collinsville high school, he ordered that the game not be held during half time of the homecoming game. Nevertheless, several students approached some of the teaching faculty and requested them to coach the girls' teams. Three teachers agreed to do so. None of the three teachers had been hired by the district to be coaches. It is not entirely clear from the record, but between four and six practice sessions were held in preparation for the football game. These sessions were held after school on school grounds. The girls changed their clothes in the school locker room prior to the practices. It is unclear whether a school football was used in either the practice sessions or during the game. There was testimony that one of the footballs was supplied by a student while no one knew the owner of a second football which was used. The game was played on Sunday of homecoming weekend, October 27, 1974, but not during half time of the varsity football game.

The testimony is undisputed that little instruction in the rules of football was given during the practice sessions. Two witnesses who had played in the game, in addition to the plaintiff, testified that these sessions consisted primarily of passing and hiking the ball and blocking each other in order to get an idea as to which girl was best suited for each position. It was suggested by one of the teachers that the girls purchase mouth guards since tackle football could be "rough" at times. Most of the girls, including the plaintiff, did purchase and wear mouth guards for the game.

The plaintiff testified that several notices of the game were posted on bulletin boards throughout the school. This testimony was corroborated by Reese Hoskins, an assistant principal, and by Rodney Woods, the principal. Additionally, the plaintiff, and two of the participants in the game who testified, stated that at least one, if not more, announcements were made by students over the school's public address system to inform the students of the practice sessions and the game.

Further evidence was adduced at trial by the plaintiff to establish that her injuries were more extensive than a fractured nose. Testimony of a psychiatrist, Dr. Anthony K. Busch, and the result of an electroencephalogram indicating an abnormal brain-wave pattern, were admitted during trial. This evidence related to the testimony given by the plaintiff, her parents, and friends and neighbors of the plaintiff that after the football game in October 1974 the plaintiff's behavior changed. The evidence tended to establish that she became irritable, rebellious and moody. The plaintiff testified that she had six jobs between the time of the accident and the trial, and she was fired from five of them. The plaintiff's parents testified that since the accident the plaintiff had broken windows in her room in a fit of temper; they would find her walking the streets alone at night; and that she would sit in a rocking chair for hours, none of which she had done before her injury. In May 1975, the plaintiff took her father's car and, with another girl and two boys, drove to Colorado and Utah, where they were apprehended by the authorities, but the plaintiff managed to escape. After an accident involving her father's car in Wyoming, the plaintiff was placed in a girls school by the authorities until her parents could travel to Wyoming to take her home with them.

On cross-examination, the plaintiff testified that she had been involved in a fight with another student prior to the football game. Also, the plaintiff testified that her parents began to put more restrictions on her behavior at approximately the same time as the football game.

Dr. Busch testified that he began treating the plaintiff soon after her return from Wyoming. She was placed in the hospital by her parents, where Dr. Busch ordered her to be placed in leather restraints to keep her from running off. Dr. Busch stated that the plaintiff became "more cooperative" after she received sedatives and other medication he prescribed for her which neutralized the effects of her abnormal brain-wave pattern. A second electroencephalogram, taken six months later, showed no appreciable change in the plaintiff's brain-wave pattern.

Dr. Busch stated that in his opinion, based upon a reasonable degree of psychiatric certainty, the plaintiff's condition is of permanent duration, and that while medication would enable her to have better control of her behavior, it would not eliminate her difficulties. Dr. Busch further testified that those difficulties would include impulses that the plaintiff would find difficult to control and some faultiness in judgment. In response to a hypothetical question which recited all of the facts in evidence, Dr. Busch testified that, in his opinion, the injury the plaintiff sustained on October 27, 1974, "quite probably was the causation of her difficulties."

On cross-examination, Dr. Busch testified that his diagnosis of the plaintiff's condition upon her discharge from the hospital was "a behavioral disorder of adolescence." The doctor stated that if an electroencephalogram had been taken before the plaintiff's injury it "would have helped tremendously" in judging whether her abnormal brain-wave pattern existed prior to the accident, but no such test had been conducted. The doctor further testified that he did not think that the plaintiff's abnormal brain-wave pattern existed before the accident because some outward manifestations, including, possibly, fighting, would probably have occurred.

Donald Eugene Arnold, an instructor in football officiating and football coaching at the University of Illinois, also testified. Professor Arnold testified concerning the rules governing high school football in Illinois. He stated that the object is to promote the safety of the players. He further testified that he knew of no organized tackle football games where equipment such as helmets, shoulder pads and the like are not used; that such equipment is required by the rules promulgated by the Illinois High School Association. Professor Arnold further stated that he had coached a powderpuff tackle football game while he was an undergraduate in college. He testified that, in that game, attendance at two weeks' practice prior to the game was mandatory, and that helmets and full football gear were worn by the participants. Professor Arnold also stated that since head injuries are usually severe, it is mandatory that football players wear helmets for all practices and at all times they are playing football. Finally, Professor Arnold testified that the Illinois High School Association rules provide that a major penalty for roughing the passer after the ball has been released.

Dallas Harrell, an assistant superintendent of the defendant school district, in charge of personnel, was called to testify by the plaintiff as an adverse witness. Harrell testified that he knew the defendant owned the athletic field upon which the football game was played, and he knew that the defendant possessed a duty to supervise the fields and other real property it owned. Harrell was later recalled to the stand as an adverse witness. He stated that the defendant belongs to the Illinois High School Association. On redirect examination, Harrell testified that the defendant follows the rules in regular, authorized games.

During the defendant's case in chief, Rodney Woods, the principal of Collinsville high school, Greenwood campus, testified that the game was not sponsored by the school because the procedure, whereby the board of education approved a faculty sponsor for school activities, was not followed. Woods also stated that, when he was approached by students for permission to make an announcement concerning the game over the public address system, he denied their request because the game was not a school activity. Woods testified that when he was informed that an announcement was made concerning the game, he instructed Reese Hoskins, an assistant principal, to make a countermanding announcement that the game was not an authorized school activity. Reese Hoskins, the assistant principal, subsequently testified that he gave the countermanding announcement. Woods also testified that pictures of the powderpuff football game were included in the school yearbook, which was produced by the students themselves. Finally, Woods testified very equivocally on cross-examination as to whether he specifically told the students they could not use the athletic field for the game. On cross-examination by plaintiff's counsel the following colloquy occurred:

"Q. Is such a permission request [to use the athletic fields] made then by these people who you say are other than supervisors of a school group?

A. Students ask.

Q. And did you use your discretion and tell them that they couldn't play that game on school property?

A. No.

Q. You didn't tell them they could not play that game?

A. No. They could not play on school property because it was not a school-sponsored activity.

Q. You told these kids that they couldn't play this game on school property, is that correct?

A. Yes. In essence, yes.

Q. And then it was written up in the yearbook and so on. I notice that there is another athletic contest that is written up in the yearbook. A donkey basketball game. In looking at the photos of the donkey basketball game I notice that all of the ...

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