O'Brien v. Township High School District 214

MR. JUSTICE RYAN, concurring in part and dissenting in part:

While it is true that this case is before us on the pleadings, the record contains memoranda of both plaintiff and defendants in opposition to, and in support of, the defendants’ motion to dismiss. Attached to the defendants’ memoranda, as a part thereof, was a deposition of the plaintiff, James O’Brien, and also the school’s answers to plaintiff’s interrogatories. These show that the trial court was plainly correct in dismissing count I of plaintiff’s fourth amended complaint as to the defendant school district and the two teachers, Ronald Freeman and Edward Cheatham.

On August 22, 1972, plaintiff James O’Brien fell in a locker room of a public swimming pool, which was not owned or used by the school district. He suffered an abrasion about the size of a half-dollar on his knee. He treated this injury at home that night by putting some Bactine on it. The next day was the first day of football practice at the high school, where he was enrolled as a first-year student. On the first day of practice the injury he had received on his knee the day before started to bleed. During practice, he asked defendant Ross, who was a student assistant trainer for the football team, to put something on his injury. Ross sprayed a substance on it and wrapped it with a bandage, and plaintiff continued to practice. For the next several days the plaintiff did not treat the injury himself at home, but every other day Ross would change the bandage on it in the training room at school. Defendant Freeman looked at the injury “a couple of times” but said nothing. On Friday of the second week of practice, what the plaintiff describes as a boil developed at the site of the injury. The plaintiff practiced football that day, and after practice, in the training room, he showed the injury to Freeman, who said that it looked like an ingrown hair and that Ross would take care of it. Ross then put hot packs on it, opened it, cleaned it and rebandaged the injury. The complication developed thereafter.

The answers of the defendant school district to the plaintiff’s interrogatories show that defendant Cheatham was employed by the school as an instructor in social science and as freshman football coach. Defendant Freeman was employed as an instructor in physical education and as athletic trainer. Defendant Ross was a student at the school. Although not employed by the school, he was permitted to assist Freeman as a student trainer. The answers to interrogatories also show that the school provided a substantial list of medical articles and supplies in the training room for first-aid use, and that first aid was administered in the training room.

This court has, in recent years, in three cases, delineated the limits of the immunity conferred upon teachers and school districts from suits for ordinary negligence by sections 24 — 24 and 34 — 84a of the School Code (Ill. Rev. Stat. 1973, ch. 122, pars. 24 — 24, 34 — 84a). The latter section applies to school districts in cities having a population in excess of 500,000. (See Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165 ; Gerrity v. Beatty (1978), 71 Ill. 2d 47 ; Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165 .) The relevant portions of the statute are set forth in the majority opinion. In Thomas we held that the immunity conferred by the statute is not lost because the program under supervision involved an extracurricular activity. (Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 172 .) In Kobylanski it was held that the immunity extends to all activities of the school program. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 172 .) The majority opinion attempts to distinguish the holdings of these three cases by stating that they demonstrate that the in loco parentis status of teachers conferred by the statute is limited to activities connected with the school program. The opinion states that it does not view the actions of the defendants to be within the category of activities connected with the program of the school.

It appears that there are two factors which the opinion considers significant in reaching this conclusion. First, the opinion points out that the injury which originally caused the condition in the plaintiff’s knee did not arise from a school-related activity. Second, the negligent acts complained of were outside the supervisory teacher’s functions and outside his realm of training and competence.

I can see no relevance in whether the original injury did or did not arise from a non-school-related activity. The abrasion received at the swimming pool broke open and started to bleed while the plaintiff was practicing, and he requested first aid. It appears that, to that extent at least, the injury treated did arise out of a school activity, or at least was aggravated thereby. In any event, the right of one standing in the place of a parent or guardian to administer first aid should not depend upon whether the original injury which brought about the condition which requires attention arose out of an activity connected with the school. The protection afforded by the statute conferring upon the teachers the status of a parent or guardian should not be so conditioned. Using an extreme example, if a student has a headache, the teacher, before administering two aspirin, should not have to inquire of the student whether the headache originated during the school day or if the student had the headache before coming to school. If a student is in need of first aid so that he or she can continue to participate in a school activity, it would appear to me that anyone standing in the place of a parent or guardian should administer first aid and that the protection afforded to the teacher by the statute should apply regardless of the origin of the injury.

I assume that the majority, in stating that the negligent acts complained of were outside the ambit of the teacher’s supervisory function, meant that the teacher should not have been providing medical attention to the students or that he went beyond accepted limits in doing so. Every athletic and physical education department has its supplies and equipment necessary for administering first aid. Every coach and physical education teacher is called upon to treat minor injuries and ailments. Certainly, in doing so they are within the protection of the statute granting them immunity for acts of ordinary negligence. The majority opinion seems to say, however, that there is a point in the performance of these functions beyond which a teacher, if he ventures, loses this protection. In our case the argument would seem to be that it is permissible to clean, medicate and bandage the abrasion on the plaintiff’s knee, and in doing so the teachers enjoy the protection of the statute. However, as a part of the same program, the teacher who, thinking that a boil or some other infection is an ingrown hair, directs the student trainer to open it has gone beyond his area of competence and training and loses the protection of the statute. I cannot agree with this reasoning. The teacher may well have been negligent, or even guilty of wilful and wanton conduct, in having the infected area of the plaintiff’s knee opened and treated by someone not trained in medicine. However, his conduct does not determine if the activity is a part of the school program. Administering first aid as a part of an athletic program plainly comes within the ambit of an activity of the school. The statute confers upon the teacher the status of a parent or guardian in all such matters. The teacher may have ventured outside the realm of his training and competence and, as stated above, he may have performed his duties negligently or wilfully and wantonly, but This does not remove the activity of administering first aid from being a legitimate part of the school program.

In Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165 , this court stated the public policy considerations relevant to protecting teachers from liability for the performance of their duties in a negligent manner, and stated:

“[W]e would burden them to the extent that a teacher might become immobile in the performance of his obligations. They would ‘not be free and unhampered in the discharge of their duties, since they would live in fear that each judgment they made would bring a lawsuit. ’ (Judge, Tort Immunity Act: Only Certain Immunities Are Waived by Public Entity’s Purchase of Insurance, 63 Ill. B.J. 386 , 387 (1975).) Moreover, a proliferation of such actions for negligence would drain teachers’ time, encourage second-guessing teachers’ judgment by courts, and quite possibly discourage persons from the career of teaching.” (Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 172 .)

I fear that if the teachers have to determine whether or not the origin of the ailment was related to a school activity before administering first aid, or whether removing an ingrown hair or opening a pimple exceeds the permissible bounds of treatment, they will be so immobilized in the performance of their duties that the fear expressed in the above quotation will be realized.

As to defendant Ross, since he was not a teacher or other certified educational employee, the protection of the statute does not extend to him and the plaintiff’s negligent action as to him can be maintained. I also agree that count II of the complaint based on wilful and wanton conduct can be maintained against the defendants and that that count should not have been stricken.

UNDERWOOD and WARD, JJ., join in this partial concurrence and partial dissent.