# Palmer v. Mount Vernon Township High School District 201

> Appellate Court of Illinois · March 8, 1995 · 207 Ill. Dec. 550

URL: https://www.frixlaw.com/law-library/cases/9714175

## Case

- **Full name:** DONNELL PALMER Et Al., Plaintiffs-Appellants, v. MOUNT VERNON TOWNSHIP HIGH SCHOOL DISTRICT 201, Defendant-Appellee
- **Court:** Appellate Court of Illinois
- **Decided:** March 8, 1995
- **Citations:** 207 Ill. Dec. 550; 269 Ill. App. 3d 1056; 647 N.E.2d 1043; 1995 Ill. App. LEXIS 136
- **Precedential status:** Published
- **Opinion:** Dissent by Lewis
- **Judges:** Goldenhersh, Lewis
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9714175

## Opinion text

JUSTICE LEWIS, dissenting:
A kindergarten class located somewhere in the Fifth Appellate District in the Fall of 1995:
TEACHER: "Listen up children. We are going to play musical chairs, so I have to give you the warning. Now, now, don’t groan so loud. I know that you have heard the warning a hundred times, but the appellate court says that I must give it to you each time we play. Besides, this may be the last time you hear it, because the school board is meeting next week to decide if all school activities involving running or jumping will be banned due to the high cost of insurance and equipment. Now, it is my duty to warn you that you can be seriously injured playing musical chairs. You might break an arm, get a tooth knocked out, or receive a brain concussion. Remember the old song about the toe bone connected to the foot bone, the foot bone connected to the ankle bone, and so on. Well, you could break all those bones mentioned in the song, if you play. In fact, you could possibly break any bone in your body, tear any muscle, pull a ligament or tendon, and rip a cartilage. I know that you don’t know what a ligament or cartilage is, but the court only said we had to warn you. Now there are all types of equipment that prevent injuries. Look at the dummy here. See the football helmet, hockey mask, mouthguard, shoulder pads, rib pads, hip pads, knee pads, and high-top shoes. All of this equipment could prevent injuries, and you can furnish your own. We have already told your parents that they can buy you football pads. I want you to be sture and tell your parents that we are serious. We are only doing what the court ordered. Sally, I want you to be sure and tell your daddy that we do not need a psychiatrist, as he strongly suggested. Now we have one problem. Johnny has brought his football helmet and shoulder pads, so we have to wait until the principal decides if these pads might endanger the rest of you, if he collides with you. That reminds me, if any of your parents cannot afford to buy you all of the equipment that is displayed on the dummy and if you wish to wear such while playing games, please take home this paper requesting financial aid and have your parents fill it out and sign it. The school board needs to know how many need financial help before they vote next week between a new roof or football pads. Well, recess is about up so we can only play one game, if the principal gets here in the next five minutes.”
I do not mean to be disrespectful toward my colleagues, or to be callous about the terrible injury plaintiff received, but I do not know of a better way to make my point within the five-page limitation (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994) than the aforesaid scenario. It should be made perfectly clear that the jury was given an instruction, plaintiffs’ instruction number 14, stating, "[I]t is the duty of the school district to exercise ordinary care to furnish equipment to students to prevent serious injuries.” (Emphasis added.) The jury, by its finding of not guilty, indicated that the defendant had not violated its duty to exercise ordinary care to furnish equipment to prevent a serious injury. How can this be a furnishing-equipment case when the jury was instructed and decided against that specific assertion?
I even question whether the trial court should have instructed the jury as to the duty to furnish goggles. It may be, as in Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415 , 412 N.E.2d 447 , which involved playing football without a helmet, that a sport can be so inherently dangerous that it should be obvious that certain equipment should be provided. Few sports or activities are as dangerous as football, but you can still receive serious injuries in any sporting activity. In fact, anytime there is running or jumping, someone can and often will be hurt. You can furnish the best equipment possible and warn of every danger, and there still will be injuries in sports. How can there be athletic competition, if all of the participants look like the Mummy’s Ghost?
It should be noted that the jury was given the pattern negligence instructions and that the jury was instructed about plaintiffs’ theory in plaintiffs’ instruction number 21. These instructions were held to be sufficient in Poelker v. Warrenshurg-Latham Community Unit School District No. 11 (1993), 251 Ill. App. 3d 270 , 621 N.E.2d 940 , even though plaintiffs’ non-IPI instructions were not given.
The majority says that under plaintiffs’ instruction number 15, which says, "Where students are engaging in school activities, it is the duty of the school district to warn the students that they should furnish their own equipment to prevent serious injuries,” this duty to warn is a furnishing case. (Emphasis added.) Only teachers can give warnings, so it is obviously a supervisory case, which means that the school district is immune from liability under the holding in Sidwell v. Griggsville Community Unit School District No. 4 (1992), 146 Ill. 2d 467 , 588 N.E.2d 1185 . Moreover, I dare say that the school district or teacher could warn the students all day, every day, that football is dangerous and that students should furnish their own helmets but still be held not to have discharged its duty to furnish equipment. A school district cannot discharge its duty to furnish equipment in an inherently dangerous sport by a mere warning. Further, it is ridiculous to be required, as in the case at bar, to warn of a danger that a student is aware of. It does not take a genius to foresee that you could have your eye put out in any sport or activity in which there is possible contact between the participants or the participants and the equipment used.
Plaintiffs’ instruction number 16 says, "Where students are engaging in school activities, it is the duty of the school district to exercise ordinary care to allow the students to use equipment to prevent serious injury.” Yet the majority cites Gerrity v. Beatty (1978), 71 Ill. 2d 47 , 373 N.E.2d 1323 , which held that a school district can be liable for ordinary negligence in furnishing defective equipment. The school district would have to check every piece of equipment furnished by the students. How can a school district conduct such tests? Further, how do you allow one student to wear equipment to protect himself, if the equipment would be a danger to other students (i.e., a football helmet in a basketball game).
The majority wants to impose absolute liability on a school district for any child that is injured. It would be better and much simpler if the majority had frankly held that. School boards, teachers, the legislature, and the public could at least understand it and do something about such a ruling.
Meanwhile, the school districts will muddle along attempting to avoid liability by giving inane warnings (it reminds me of the warnings flight attendants make) to students who will not be listening or who do not understand. More learning time and school budgets will be eaten up with futile attempts by administrators and teachers to comply with the inconsequential. Meanwhile, juries and trial judges will be trying to make sense out of the nonsensical, plaintiffs’ instructions number 15 and number 16. We can all foresee the eventual result. Sports or activities involving running and jumping will be banned in schools, because someone will get hurt and school districts cannot afford the liability. "Tag” and "Ring Around the Rosie” will soon be as taboo as crack and pot on school grounds.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9714175. Public record. Not legal advice.