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12/29/89 Betty Jackson, A Minor, By v. Chicago Board of Education

December 29, 1989

JACKSON, PLAINTIFF-APPELLANT

v.

CHICAGO BOARD OF EDUCATION ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

BETTY JACKSON, a Minor, by her Next Best Friend, Barbara

549 N.E.2d 829, 192 Ill. App. 3d 1093, 140 Ill. Dec. 178 1989.IL.2065

Appeal from the Circuit Court of Cook County; the Hon. Dean Sodaro, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. MANNING, P.J., and CAMPBELL, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

Betty Jackson (plaintiff) brought an action in the circuit court of Cook County against defendants Chicago Board of Education (the Board), Ruby L. Rhodes, Bertha Easterling, and Keith Washington for personal injury she sustained in an educably mentally handicapped classroom in February 1982, when she was struck by a chalkboard clip thrown by defendant Washington. The circuit court granted summary judgment in favor of defendants Rhodes, the Board and Easterling. Plaintiff appeals from this judgment, contending that the circuit court erred in applying a willful and wanton misconduct standard to her case and, alternatively, that the court improperly granted summary judgment under the willful and wanton standard. We affirm.

The following deposition testimony was presented to the circuit court on the summary judgment motion. Rhodes testified that on February 24, 1982, she taught 14 children, ages ranging from 12 to 15 years, in an EMH class at Bryn Mawr Elementary School in Chicago, Illinois. On her 20-minute scheduled break that day, she left the classroom at 1:12 p.m. to be attended by Easterling, a teacher's aide who simultaneously supervised a "regular" second-grade class during this recess period. Rhodes returned to the classroom by 1:32 p.m.

Easterling testified that during the recess period, as part of her regular duties, she went back and forth between the EMH classroom and the regular second-grade classroom, leaving each class unattended for a minute at a time. While she monitored the "regular" second-grade classroom, she heard yelling in the EMH classroom. She then returned to the EMH classroom.

Plaintiff testified that Easterling did not enter the room during the recess break. The children in the classroom were acting "wild," sitting on the desks, standing at the back of the room, and play-fighting. While she was in the back of the room, someone called her name. When she turned around, she was hit in the eye by a chalkboard clip.

Washington testified that Rhodes was gone a short time when he began tossing a "paper clip" in the air and catching it. He mistakenly threw the clip backwards over his shoulder. He was not aware that it hit plaintiff until he heard her holler. He further testified that 20 minutes elapsed from the time of the accident until Rhodes returned, and no adult was present during the recess period.

Donnell Jackson, another student in the EMH class, testified that Rhodes had been gone approximately one-half hour before the accident occurred. He observed a teacher's aide appear in the doorway one time during Rhodes' absence, but he did not know if the aide was present at other times.

Plaintiff testified that Washington had never hurt her before, and "he wasn't that type of person." He was a "wild" person, meaning that he played with the other boys, was macho, and was like any other boy. He was not a bully or a troublemaker. Rhodes similarly testified that Washington was a well-mannered boy with no previous behavioral problems, and Easterling stated she had no knowledge of any behavioral problems with Washington and had never noticed any prior unusual conduct in the EMH class.

Rozanne Deutsch, the school psychologist, testified that children are placed in an EMH class because of low "IQ" and that children with behavioral disorders are placed in a separate class for behavioral disorders. Washington was a 15-year-old boy functioning at a first- or second-grade level. None of ...


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