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03/08/95 DONNELL PALMER AND SUZANNA PALMER v. MOUNT

March 8, 1995

DONNELL PALMER AND SUZANNA PALMER, PLAINTIFFS-APPELLANTS,
v.
MOUNT VERNON TOWNSHIP HIGH SCHOOL DISTRICT 201, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Jefferson County. No. 88-L-5. Honorable George W. Timberlake, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court: Chapman, J., concurs. Justice Lewis dissenting:

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Plaintiffs, Donnell Palmer and Suzanna Palmer, appeal from a jury verdict in favor of defendant, Mount Vernon Township High School District 201, and from the denial of their posttrial motions. Plaintiffs' complaint alleged that defendant's negligence proximately resulted in an eye injury to plaintiff, Donnell Palmer (Donnell), a star player on defendant's basketball team. The following issues are raised by this appeal: (1) whether the trial court abused its discretion by refusing to give two of plaintiffs' jury instructions; (2) whether the jury's verdict is against the manifest weight of the evidence; (3) whether the trial court erred in not granting a judgment notwithstanding the verdict; and (4) whether defense counsel's expression of his personal opinion in closing argument amounts to reversible error. We reverse and remand.

I

At trial, Donnell testified that he had seen Kareem Abdul-Jabbar of the Los Angeles Lakers, a professional basketball team, and opponents of Mt. Vernon's basketball team wear goggles. Also, Donnell was hit on the cheekbone under his left eye by another player's elbow during a tournament in December 1985, but he was not seriously injured. Donnell said that he had concerns that he might sustain an eye injury. Sometime in January 1986, Donnell was in the gym shooting baskets before that day's practice session. A teammate, Eric Robinson, came into the gym carrying a pair of "Rec Specs" eye goggles. Upon Donnell's request, Eric allowed Donnell to try on the goggles. Donnell continued to wear the goggles as he shot baskets for another5 to 10 minutes before practice and before the rest of the team arrived. Coach Lee Emery came into the gym and saw Donnell wearing the goggles. The coach told Donnell not to wear them because someone else might get hurt. Donnell took off the goggles. After the January 1986 practice session and before Donnell's injury, he did not try to wear any kind of eye-protection equipment, assuming Coach Emery would not let him. On February 4, 1986, during a practice session, Donnell was hit in the left eye by another player's finger. As a result of the injury, Donnell ultimately lost all vision in his left eye. Before the February 1986 injury, no one from Mt. Vernon Township High School had warned Donnell that he should provide his own eye-protection equipment.

On cross-examination, Donnell testified that when he tried on the goggles in January 1986, he was experimenting because he had not worn any before that time. When Coach Emery told Donnell to take off the goggles, Donnell did not tell the coach why he wanted to wear them. Donnell did not tell the coach, the school superintendent, or anyone else from the school district that he felt he needed some type of eye protection when playing basketball. Before February 4, 1986, Donnell was aware of the possibility that he could get poked in the eye. During his basketball career with Mt. Vernon Township High School, Donnell had never seen another Mt. Vernon player wear any kind of eye-protection equipment during practice or games.

Eric Robinson, whose eye goggles Donnell wore in January 1986, testified about the January incident essentially the same as Donnell, except Eric thought that the whole team was Present in the gym at the time the coach told Donnell not to wear the goggles and Donnell had worn the goggles for 20 to 30 minutes instead of only 5 to 10 minutes. He also thought that the coach told Donnell not to wear the goggles because they would be a distraction, rather than because they might hurt someone.

Coach Lee Emery testified as an adverse witness. He was the varsity basketball coach during the 1985-1986 basketball season. Coach Emery testified that although he had tried hard to remember the incident in January 1986, when Donnell tried to wear eye goggles, he did not remember any such incident. His description of the events of February 4, 1986, otherwise concurred with Donnell's description. Coach Emery testified that high school basketball in Illinois is governed by rules set forth by the Illinois High School Association. One of the rules in effect during the 1985-1986 basketball season was that during games, the referees were required to prohibit players from wearing equipment which, in the referees' judgment, was dangerous to any of the players. When asked if defendant had everconsidered whether protective eye equipment ought to be furnished to any of its basketball players, Coach Emery responded that he would not know. Finally, he testified that although blinding injuries in basketball are unusual, players do get poked in the eye occasionally.

Plaintiffs introduced the deposition testimony of two physicians and one rehabilitation expert and rested their case. Defendant then moved for a directed verdict, based in part upon the Illinois Supreme Court case decided just one month before the jury trial of this cause, Sidwell v. Griggsville Community Unit School District No. 4 (1992), 146 Ill. 2d 467, 588 N.E.2d 1185, 167 Ill. Dec. 1055. The trial court denied the motion.

After plaintiffs rested, defendant called Tommy Hayes to testify. Tommy was a junior on the basketball team the year Donnell was hurt. Tommy and Donnell were close friends, "just like brothers." Tommy did not remember Donnell or any other player asking Coach Emery for eye goggles in the 1985-1986 basketball season. Tommy also did not remember Donnell wearing any eye goggles or Coach Emery telling any of the players not to wear eye goggles at any time before the February 4, 1986, accident. Although he saw Donnell numerous times immediately after the accident and through the years, Donnell never said anything to him about Coach Emery telling him not to wear eye goggles.

Jim Woodward was also a basketball coach for defendant during the 1985-1986 basketball season. He testified that none of the players requested eye-protection equipment in his presence that season. He did not know of any high school that provided eye-protection equipment for basketball players, but, occasionally, he had seen individual players from some of the teams wearing eye goggles. He recalled the February 4, 1986, incident but did not recall Donnell ever wearing eye goggles during any Practice session.

Coach Lee Emery testified again that he did not recall Donnell wearing eye goggles at any practice session, and he did not recall telling Donnell not to wear eye goggles. He could not recall ever having a player request to wear eye goggles, but he would permit a player to wear them if the player feared an eye injury. At defense counsel's request, Coach Emery tried on a pair of eye goggles that were exactly like the goggles Donnell wore in January 1986. Coach Emery testified that he did not like the goggles because they did not fit properly, they restricted his peripheral vision, and he had a "blind spot" in his field of vision when wearing them. In Coach Emery's opinion, peripheral vision is very important in basketball. He also felt that the wearing of goggles would be more unsafe than not wearing them. After the accident, he saw Donnell several times, but Donnellnever indicated that he was upset because the coach had prohibited him from wearing the goggles.

On cross-examination by plaintiffs' attorney, Coach Emery was shown a picture in the 1988 Mt. Vernon Township High School yearbook of a freshman basketball player wearing eye goggles, to impeach his earlier testimony that he had never had a player request eye goggles. On redirect examination, Coach Emery stated that he had never prohibited Donnell Palmer from wearing eye goggles.

Defendant rested its case, and Donnell was recalled as a rebuttal witness. Donnell testified that he did not tell anyone about the incident in which the coach told him not to wear the eye goggles, stating that "there was no reason why really," and that his attorney told him not to talk to anyone about the case. Donnell did not remember when he first talked to an attorney regarding this case.

At the close of the evidence, defendant renewed its motion for a directed verdict and again cited the Sidwell case ( Sidwell, 146 Ill. 2d 467, 588 N.E.2d 1185, 167 Ill. Dec. 1055), arguing that as to plaintiffs' second and third allegations of negligence against defendant (failure to warn and failure to allow Donnell to use equipment to prevent serious injury), plaintiffs were required to prove wilful and wanton misconduct by defendant in order to recover, but that plaintiffs had not presented evidence to that effect. The trial court again denied defendant's motion for directed verdict.

II

Plaintiffs' first assignment of error on appeal is that the trial court committed reversible error when it refused to give the jury two instructions tendered by plaintiffs. Neither instruction is contained in Illinois Pattern Jury Instructions, Civil (3d ed. 1992) (hereinafter IPI Civil 3d). The trial court refused both instructions for the reason that no case in Illinois specifically set forth the rule of ...


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