Stewart v. Oswego Cmty. Unit Sch. Dist. No. 308 (In re Estate of Stewart)

• Decision Date: 24 August 2016
• Docket Number: No. 2–15–1117.,2–15–1117.
• Parties: In re ESTATE OF Jeffrey STEWART, Deceased (Mary Stewart, Individually and as Special Administrator of the Estate of Jeffrey Stewart, Deceased, Plaintiff–Appellee, v. Oswego Community Unit School District No. 308, Defendant–Appellant).
• Court: United States Appellate Court of Illinois

60 N.E.3d 896

406 Ill.Dec. 345

In re ESTATE OF Jeffrey STEWART, Deceased (Mary Stewart, Individually and as Special Administrator of the Estate of Jeffrey Stewart, Deceased, Plaintiff–Appellee, v. Oswego Community Unit School District No. 308, Defendant–Appellant).

No. 2–15–1117.

Appellate Court of Illinois, Second District.

Aug. 24, 2016.

J. Timothy Eaton and Jonathan B. Amarilio, both of Taft Stettinius & Hollister LLP, of Chicago, for appellant.

Bradley A. Skafish and Jeffrey S. Deutschman, both of Deutschman & Associates, P.C., of Chicago, for appellee.

OPINION

Justice JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 In February 2008, 18–year–old Jeffrey Stewart collapsed and died during English class at Oswego Community High School. According to the autopsy report, the cause of death was asthma. Stewart's teacher, Stacy Harper, ran to Stewart's side and told two students to go by foot to the other side of the building to get the nurse, but, contrary to school policy, Harper did not call or have someone call 911 for another 7 to 20 minutes.

¶ 2 Plaintiff, Mary Stewart, Stewart's mother, individually and as administrator of his estate (Estate), filed the instant tort suit, alleging, inter alia, that Harper, as an agent of defendant, Oswego Community Unit School District No. 308 (District), acted willfully and wantonly in responding to Stewart's collapse. She also alleged that other agents of the school acted willfully and wantonly, particularly with regard to training Harper. The District moved for summary judgment, arguing, inter alia, that it was immune from these claims pursuant to section 2–201 of the Local Governmental and Governmental Employees Tort Immunity Act (Act), which provides absolute immunity for policy determinations made with discretion. 745 ILCS 10/2–201 (West 2008). The trial court denied the motion. It found, as a matter of law, that Harper exercised his discretion, but it could not find, as a matter of law, that Harper made a policy determination. Absolute immunity aside, the court stated that a question of fact remained as to whether the agents acted willfully and wantonly. The case proceeded to trial on the question of willful and wanton conduct.

¶ 3 Following trial, the jury returned a $2.5 million verdict in favor of the Estate. The court denied the District's earlier motion for a directed verdict and its posttrial motions for judgment notwithstanding the verdict (judgment n.o.v. ) and, alternatively, a new trial.

¶ 4 The District appeals, arguing that the trial court erred in: (1) denying its motion for a new trial, based on insufficient evidence of willful and wanton conduct (and denying its motions for a directed verdict and judgment n.o.v. on the same basis); (2) issuing a jury instruction that was not supported by the evidence; and, earlier, (3) denying summary judgment based on section 2–201 absolute immunity and allowing the case to proceed to trial. As to the main issue of whether the evidence supported the willful-and-wanton finding, the District contends that, although Harper's response to Stewart's collapse might have been misguided, he demonstrated care rather than “utter indifference,” and, therefore, he cannot have acted willfully and wantonly. We disagree that the jury was required to consider only Harper's initial actions of sending for the nurse and running to Stewart's side; instead, it may have found determinative his subsequent in action of waiting 7 to 20 minutes to call or have someone call 911. The jury also may have considered conduct prior to the collapse. Thus, we allow the jury's verdict to stand, and we affirm the trial court's judgment.

¶ 5 I. BACKGROUND

¶ 6 A. The Estate's Case

¶ 7 The Estate presented the following witnesses: Mary Stewart, Lisa Robb (Stewart's aunt), Jocelyn Stewart (Stewart's sister), Jill Weber (the supervisory nurse), Harper, Jacob Pellegrine (student), Alex Gates (student), Kyle Moser (student), Jacqueline Wojtyszyn (co-teacher), Loren Carrera (deputy coroner), and Dr. Coleman Robert Seskind (medical expert).

¶ 8 1. Mary, Robb, and Jocelyn

¶ 9 Mary testified that Stewart had asthma since age 15. Stewart had gone to the emergency room three times for his asthma. Mary informed the District that Stewart had asthma.

¶ 10 Robb testified that after he turned 18 Stewart chose to live with her so that he could attend the District's schools. In the “comments” section of Stewart's school health form, Robb reported that Stewart had asthma, and she listed albuterol as his medication. Despite writing “asthma ” in the comments section, she did not check a box for “asthma.” She did check a box for “heart murmur/high blood pressure.”

¶ 11 Jocelyn testified that she lived with Stewart for 18 years, until he went to live with their “auntie.” Stewart was her only sibling. She was five years older than Stewart, and she testified, as had Mary and Robb, that she loved Stewart very much. She and Stewart liked to sing, dance, and be silly together. Stewart helped Jocelyn fix her computer, and Stewart told Jocelyn that he wanted to find a job fixing computers. Jocelyn once witnessed Stewart have an asthma attack. Her mother ran to get his inhaler, and, after several seconds, Stewart returned to his normal state.

¶ 12 2. Weber, on School Policy and the Incident

¶ 13 Weber was the health services coordinator for the District. She was aware that the school maintained Stewart's health file. The file contained information that Stewart had asthma and used an albuterol inhaler. That information should have been circulated quarterly to each of Stewart's teachers. The school had a policy that, if a student suffered a “ serious” health episode, the teacher should call the nurse; if a student suffered a life-and-death episode, the teacher should call 911, or direct another person to call 911.

¶ 14 Under the title “Student Accident or Illness,” the school's policy handbook stated:

“If any of your students become ill or are injured, you should immediately take or send him to the school health office. * * * In the event of a serious accident or illness, you should not attempt to move the student. In such instances, the main office would be notified immediately. We will then call the nurse and the home immediately and will, if necessary, make arrangements for your class to be held elsewhere. An accident report should be filled out within 24 hours for all injuries involving school or classroom activity.”

Under the title “Medical Emergency,” the school's policy handbook stated:

“Under life and death circumstances call or have someone call 911 immediately. Be prepared to provide the school name and address, exact location (floor, room, number), describe the illness or type of injury, and the age of the victim(s). * * * Administer appropriate first aid according to your level of training until help arrives. Comfort and reassure the victim * * *.”¹

¶ 15 On the day in question, two students came into the front part of the office and told nurse Sandra Banbury that a student in Harper's classroom had fallen out of his chair. Weber was not in that part of the office when the students came, and another staff member told her that Banbury had left with the students. Weber decided to sit by the phone and wait for more information. At that point, she knew only that a student had fallen out of his chair. Approximately five minutes later, Harper called her. Harper told her that Banbury had instructed a call to 911. Harper asked Weber to call 911:

“Q. When you received that phone call, the person that you found out eventually was Mr. Harper told you that Nurse Banbury told him to call 911, correct?

A. Correct.

Q. And he was asking you to go ahead and make that 911 call?

A. Correct.

Q. He never indicated to you that he had called 911?

A. No.” (Emphasis added.)

¶ 16 Harper did not identify himself as a teacher. Weber thought that Harper was a student; he sounded very young. Because Weber thought that Harper was a student, she did not “pump him with a lot of questions.” Weber did ask for Stewart's name. The call ended, and Weber quickly thought to call back for more information. The phone rang several times, but no one answered.

¶ 17 Weber then called 911. It took her several tries to reach 911, because the school had recently changed its dial-out procedures. However, she reached 911 “within seconds.” While she was speaking with the 911 operator, her assistant pulled Stewart's health file and copied it. This was done simultaneously with the phone call and did not take additional time.

¶ 18 Although Weber generally knew how to get to Harper's classroom, by this time realizing that Harper was a teacher, she did not feel confident to direct the paramedics there. Therefore, she directed the paramedics to go to the front entrance, where they would be escorted to the classroom. After ending her call with 911, she called the main office and alerted them that the paramedics would be arriving at the front entrance and that school officials should escort them to Harper's classroom.

¶ 19 Weber then ran to Harper's classroom. It took her one minute; she stopped once along the way to confirm that she was going in the right direction. She brought the copy of Stewart's health file to give to the paramedics. When she arrived in the classroom, she saw Banbury performing CPR. She relieved Banbury and continued the CPR.

¶ 20 By Weber's testimony, eight minutes passed from when the students first alerted Banbury to when Weber joined Banbury in performing CPR. Five minutes passed between the first alert and Harper's phone call; two minutes passed between Harper's phone call and Weber's call to the main office; and Weber spent an additional minute running to Harper's classroom.

¶ 21 3. Harper, Pellegrine, Gates, Moser, and Wojtyszyn, on the Incident

¶ 22 Harper had been teaching at the school for five years and Stewart was in his English class. Harper did not know at the time that Stewart had asthma. Harper agreed that, per...