Poelker v. Warrensburg Latham Community Unit School Dist. No. 11

• Decision Date: 05 November 1993
• Docket Number: No. 4-93-0023,D,No. 5,5,4-93-0023
• Citation: 190 Ill.Dec. 487,621 N.E.2d 940,251 Ill.App.3d 270
• Parties: , 190 Ill.Dec. 487, 86 Ed. Law Rep. 366 Ty M. POELKER, by Carl R. Poelker and Peggy I. Poelker, his Parents and next friends, and Carl R. Poelker and Peggy I. Poelker, Individually, Plaintiffs-Appellants, v. WARRENSBURG LATHAM COMMUNITY UNIT SCHOOL DISTRICT NO. 11, and Macon Community Unit School Districtefendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 940

621 N.E.2d 940

251 Ill.App.3d 270, 190 Ill.Dec. 487,

86 Ed. Law Rep. 366

Ty M. POELKER, by Carl R. Poelker and Peggy I. Poelker, his Parents and next friends, and Carl R. Poelker and Peggy I. Poelker, Individually Plaintiffs-Appellants, v. WARRENSBURG LATHAM COMMUNITY UNIT SCHOOL DISTRICT NO. 11 and Macon Community Unit School District No. 5 Defendants-Appellees.

No. 4-93-0023.

Appellate Court of Illinois Fourth District.

Argued June 22, 1993.

Decided Sept. 30, 1993.

Rehearing Denied Nov. 5, 1993.

Darrel F. Parish, argued, Linda M. Castleman, Roberts, Parish & Castleman, Ltd., Decatur, for plaintiffs-appellants.

Nicholas J. Neiers, argued, Rhonda L. Richards, Samuels, Miller, Schroeder, Jackson & Sly, Decatur, for Macon Community Unit School Dist. No. 5.

Allen Verchota, III, argued, John F. Bramfeld, Phebus, Tummelson, Bryan & Knox, Urbana, for Warrensburg Latham Community Unit School Dist. No. 11.

Justice KNECHT delivered the opinion of the court:

Plaintiff Ty Poelker was injured by a discus thrown by a classmate while they were preparing to participate in a track meet at Macon Community Unit School District (Macon). Ty attended Warrensburg-Latham Community Unit School District (Warrensburg-Latham). Ty and his parents brought an action in Macon County circuit court against both school districts. Upon remand from this court (Poelker v. Macon Community Unit School District No. 5 (1990), 212 Ill.App.3d 312, 156 Ill.Dec. 695, 571 N.E.2d 479, appeal denied (1991), 141 Ill.2d 559, 162 Ill.Dec. 506, 580 N.E.2d 132), and after procedural rulings by the trial judge, the jury ruled against plaintiffs on their remaining negligence counts against defendants.

Plaintiffs contend the trial judge erred by granting defendants' motion for a directed verdict on plaintiffs' wilful and wanton counts regarding supervision. They also contend the trial judge erred by denying their motion for summary judgment on the issue of defendants' breach of their duty to supervise. Plaintiffs raise numerous arguments related to the jury instructions tendered and denied and evidentiary rulings. Finally, they argue Warrensburg-Latham's closing argument was prejudicial and requires a new trial.

We find no error at trial which requires reversal and affirm.

I. FACTS

In the spring of 1986, Ty Poelker was a student and member of the track and field team at Warrensburg-Latham. On April 29, 1986, Warrensburg-Latham competed in a track and field meet against Macon. The meet was hosted by Macon. The meet was scheduled to commence at 4 p.m., and approximately 88 children were scheduled to compete in various track and field events. Ty and a classmate, Billy Johnson, were scheduled to compete in the discus event. At approximately 3:50 p.m., Ty was hit in the head by a discus thrown by Billy during a warm-up for the later discus competition.

At the time Ty was hit by the discus there were 12 adults present who were involved, in some capacity, in the track and field meet. However, there was no adult in the immediate vicinity of the discus circle.

Ty and his parents brought suit against both school districts. In Poelker, involving only plaintiffs and Macon, this court determined a school hosting a junior high discus competition has a duty to provide supervision during the warm-up period as well as during the actual event. This appeal follows after our remand. Additional facts will be discussed in pertinent portions of the opinion.

II. SUMMARY JUDGMENT

Plaintiffs allege the trial court erred in denying their motion for summary judgment on the issue of the defendants' breach of the duty to supervise. Plaintiffs have waived consideration of this issue by their failure to cite pertinent authority and an argument in support of their contention. (134 Ill.2d R. 341(e)(7).) In In re Tally (1991), 215 Ill.App.3d 385, 390-91, 158 Ill.Dec. 869, 872, 574 N.E.2d 1262, 1265, we held mere contentions without arguments or citations of authority do not merit consideration on appeal. (See also People v. McCarthy (1991) 213 Ill.App.3d 873, 884-85, 157 Ill.Dec. 755, 762-63, 572 N.E.2d 1219, 1226-27; People v. Hood (1991), 210 Ill.App.3d 743, 746, 155 Ill.Dec. 228, 230, 569 N.E.2d 228, 230.) Other than a passing reference to Poelker, plaintiffs have cited no authority in this portion of their brief.

While Poelker is relevant to whether defendants had a duty to supervise, it provides no guidance on the issue of whether the duty was satisfied in this case; thus, plaintiffs have failed to cite any pertinent authority in support of their position the trial court erred in denying their motion for summary judgment on whether defendants breached their duty to supervise.

Plaintiffs' contentions in this portion of their brief are also unsupported by argument. Plaintiffs contend "Macon unequivocally asserted in this court and in the Supreme Court that it did not supervise. That was a necessary corollary to Macon's theory that it had no duty to supervise." This contention was rejected by the trial court and plaintiffs have not explained how the trial court erred in rejecting this contention, nor have the plaintiffs set forth or made reference to a portion of the record in which these "unequivocal assertions" may be located.

Although plaintiffs acknowledge the defendants' position that there were individuals providing supervision at the track meet, they do not provide any argument regarding why, as a matter of law, (1) the degree of supervision provided was inadequate to satisfy the duty to supervise, or (2) a failure to provide additional supervision constituted a wilful and wanton breach of the duty to supervise. Plaintiffs merely set forth the conclusionary statement, "[t]here was an absolutely clear, admitted breach of this duty. The court should have resolved that issue in the plaintiffs' favor before trial. Its failure to do so is against the law of the case and clearly requires reversal, with entry of judgment for the plaintiffs on that issue." We conclude this issue is waived. Moreover, plaintiffs' argument would also fail if considered on its merits.

Summary judgment is a drastic means of disposing of litigation and should be granted only when the right of the moving party is clear and free from doubt. Summary judgment is appropriate when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Shull v. Harristown Township (1992), 223 Ill.App.3d 819, 823, 166 Ill.Dec. 142, 145, 585 N.E.2d 1164, 1167.) This court's holding in Poelker determined there was a duty of supervision on the part of the host school. We did not determine what was required to satisfy that duty, or whether the degree of supervision provided constituted a wilful and wanton breach of that duty. Whether the degree of supervision provided by defendants satisfied the duty to provide supervision and whether, under the facts and circumstances of the case, any breach of this duty was the result of wilful and wanton conduct were fact questions which could not appropriately be resolved by means of a motion for summary judgment. Accordingly, the trial court properly denied plaintiffs' motion for summary judgment on the issue of whether defendants committed a wilful and wanton breach of the duty to supervise.

III. DIRECTED VERDICT

Plaintiffs allege the trial court erred in directing a verdict in favor of defendants at the close of the plaintiffs' case on the issue of whether defendants committed a wilful and wanton breach of the duty to supervise. The direction of a verdict does not require a complete absence of evidence on the side against which the verdict is directed, for the right to resolution of issues by the jury exists only if there are factual disputes of some substance. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 505, 229 N.E.2d 504, 510.) Verdicts ought to be directed when all of the evidence, viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. Pedrick, 37 Ill.2d at 510, 229 N.E.2d at 513-14.

Courts considering the issue of whether the breach of a duty to supervise, in a school setting, rises to the level of wilful and wanton conduct have generally determined that it does not. (See Guyton v. Roundy (1985), 132 Ill.App.3d 573, 579, 87 Ill.Dec. 738, 742, 477 N.E.2d 1266, 1270.) In Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill.2d 415, 45 Ill.Dec. 96, 412 N.E.2d 447, the supreme court determined there was insufficient evidence as a matter of law to prove a school was guilty of wilful and wanton conduct when teachers permitted students to play in a "powderpuff" football game without requiring them to wear protective equipment.

The plaintiff in Lynch suffered a head injury in a "powderpuff" football game, and sued her school board alleging, inter alia, wilful and wanton conduct arising out of a failure to supervise. (Lynch, 82 Ill.2d at 418, 45 Ill.Dec. at 100, 412 N.E.2d at 451.) Donald Eugene Arnold, an instructor in football officiating and coaching at the University of Illinois, testified he knew of no organized tackle football games in which equipment such as helmets, shoulder pads, and the like are not used and such equipment is required by the rules promulgated by the Illinois High School Association. (Lynch, 82 Ill.2d at 420, 45 Ill.Dec. at 101-02, 412 N.E.2d at 452-53.) Arnold additionally testified he had coached a "powderpuff" tackle football game, attendance at two weeks' practice prior to the game was mandatory, and helmets and full football gear were worn by the participants in the game. Arnold testified head injuries are usually severe and it is mandatory that helmets be worn at all times the players are playing football. (Lynch, 82...