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Barth v. Board of Education





Appeal from the Circuit Court of Cook County; the Hon. Jacques Heilingoetter, Judge, presiding.


Defendants, the board of education of the city of Chicago (hereinafter the board) and the city of Chicago (hereinafter the city), appeal from a judgment of the circuit court of Cook County. A jury found defendants liable to plaintiff, Daniel Barth, in a personal injury action. The jury awarded plaintiff $2,550,000 in damages, assessing half of the liability to the board and half to the city, for injuries that plaintiff suffered when he did not receive medical treatment for approximately one hour after receiving a blow to his head. Defendants appeal from the judgment entered on the verdict, claiming that both the jury's verdict and its assessment of liability were against the manifest weight of the evidence.

We affirm.

Since defendants contend that the jury's verdict in favor of plaintiff was against the manifest weight of the evidence, we must recite the facts of this cause in detail.

Testimony at trial adduced the following facts. On October 30, 1978, plaintiff was 11 years old and a sixth-grade student attending the McKay Elementary School, a public school located at 6901 South Fairfield Avenue, Chicago. During morning recess on this date, plaintiff and his classmates were playing "kickball," a game similar to baseball except that the batter kicks a large rubber ball. The school's physical education instructor and two teacher's aides supervised the playground. At approximately 10:35 a.m., both plaintiff and a classmate, Demetrius Evans, ran to catch the ball but, not seeing each other, collided head-on, the front of Evans' head striking the side of plaintiff's head. Both boys fell to the ground. The physical education instructor helped them to their feet and assisted them off of the playground. Crying, plaintiff held his stomach and head; he testified at trial that he had felt sick to his stomach and dizzy.

One of the teacher's aides walked the boys from the playground to the principal's office. They arrived at the principal's office at approximately 10:40 a.m. The principal was not in school that day and the assistant principal, Marion Otlewis, was in another part of the building, teaching a class. The boys sat on a bench in the office; plaintiff bent over, still crying, holding his head and stomach. A red mark was now noticeable on the side of plaintiff's head where the blow occurred.

Approximately five minutes after the boys' arrival to the principal's office, the principal's secretary, Meredith Kelley, telephoned Evans' father, who was at home, and informed him of the accident. Kelley could not reach plaintiff's mother, Magdalena Barth, at her home, so she phoned Magdalena's employer and left a message for Magdalena to call her back. Plaintiff's teacher, Richard Firman, learned of the accident from his students and went to the principal's office to see plaintiff. He testified that plaintiff's color was bad and that plaintiff's eyes were glassy. Magdalena returned Kelley's call at approximately 11 a.m., the time that Evans' father arrived to take Demetrius home. Kelley told Magdalena that plaintiff injured his head and appeared to be sick. Magdalena instructed Kelley to take plaintiff to the hospital. Magdalena advised Kelley that she would reach the hospital from her job in approximately one hour, but that her other son would meet plaintiff at the hospital. Kelley then left the office, with a teacher's aide watching the boys, went to Otlewis and informed Otlewis of the accident and of her actions.

Between the boys' arrival at the principal's office around 10:40 a.m. and Magdalena's instructions at 11 a.m., plaintiff became nauseous. Demetrius testified that plaintiff vomited three times in the washroom across the hall from the principal's office, with him accompanying plaintiff the first two times.

At 11 a.m., Kelley telephoned the city of Chicago's "911" emergency number and stated that an injured boy needed to be taken to the hospital. The man with whom Kelley spoke took the name and address of the school and said that he would take care of it.

When assistant principal Otlewis returned to the office, she noted that plaintiff had lost color and was nodding his head up and down. Plaintiff complained of being tired and attempted to lie down on the bench. The office personnel were concerned that plaintiff had a concussion, and therefore, should not fall asleep. As a result, Kelley sat plaintiff up, washed his face, and talked to him to keep him awake.

The ambulance had not yet arrived by approximately 11:30 a.m. Otlewis told Kelley to call "911" again. Kelley identified herself and asked what had happened to the emergency vehicle. She repeated her message that an injured boy needed to be taken to the hospital. The person with whom she spoke said that the emergency system had the message and would take care of the matter.

Otlewis called "911" herself at approximately 11:45 a.m. to ask why the emergency vehicle had not yet arrived. She explained that this was the third call for emergency assistance and asked to speak directly with the fire department. The fire department dispatched an ambulance at 11:48 a.m. The ambulance reached the school only two minutes later, at 11:50 a.m., and arrived at Holy Cross Hospital only 10 minutes later, at noon.

Holy Cross Hospital is directly across the street from plaintiff's school. The ambulance that took plaintiff to Holy Cross was parked at the hospital, directly across the street from the school, when it received the dispatch.

Otlewis accompanied plaintiff to Holy Cross, arriving slightly before Magdalena. Plaintiff was transferred to Children's Memorial Hospital approximately 1 hour and 20 minutes later. Dr. Anthony Raimondi examined plaintiff at about 2 p.m. Immediately after medical tests revealed the presence of a blood clot on plaintiff's brain, Dr. Raimondi removed a subdural hematoma, about the size of an orange, from atop plaintiff's brain.

Dr. Raimondi testified that, in his medical opinion, the delay of one hour in transporting plaintiff to the hospital allowed the hematoma to grow from the size of a walnut to its size when he removed it. He further testified that had he removed the hematoma one hour earlier, plaintiff would have had merely a seven- to 10-day hospitalization. As of September 1984, six years after the accident, plaintiff's left side was severely weak, he required a cane, his intellectual function was impaired, and he experienced severe headaches. Plaintiff testified that he continues to require a cane and to experience headaches once or twice a week, that he has double vision, and that his left arm is much weaker than his right arm. The jury heard testimony also on plaintiff's mental and emotional condition.

Plaintiff filed his complaint against the board on July 19, 1979; he added the city as a defendant on December 13, 1982. The complaint sounded in negligence, alleging wilful and wanton conduct on the part of defendants. On November 17, 1983, the board filed a cross-claim against the city and filed a third-party claim against the hospital for contribution. The board later added as third-party defendants two physicians and an emergency room service. Shortly before trial, the trial court dismissed all third-party defendants on motion of the board.

After the close of plaintiff's evidence on October 29, 1984, both defendants moved for a directed verdict. They claimed that they were immune from liability for their acts or omissions; and if they were not immune, their conduct was not wilful and wanton. The trial judge denied their motions. On November 7, 1984, the jury returned a verdict for plaintiff that awarded him $2,550,000 and that assessed half of the liability to the board and half to the city. The trial judge entered judgment thereon on the same date. Both defendants filed post-trial motions seeking either a judgment notwithstanding the verdict or a new trial, claiming that the trial judge erred in denying their motions for a directed verdict and claiming that the verdict was against the manifest weight of the evidence. The trial judge denied their motions on January 22, 1985. Defendants appeal from the judgment entered on the verdict.


The board asks us to reverse the verdict and enter judgment in its favor because (1) the acts of the McKay Elementary School staff were immune from liability under section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 2-201) (hereinafter Tort Immunity Act or the Act) and (2) their acts were not wilful and wanton.


The board first claims that the McKay staff exercised discretion in performing the acts upon which plaintiff based this action. Therefore, the board contends, it is immune from liability for any injury resulting from those acts. Plaintiff agrees with the trial judge, who, denying the board's motions for summary judgment and a directed verdict, ruled that the acts of the McKay staff were ministerial rather than discretionary and, thus, not immune from liability.

• 1 The Tort Immunity Act protects a public employee from liability for his or her discretionary acts.

"Sec. 2-201. Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such ...

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