Can I Sue My Child’s School?
I get phone calls regularly from parents indicating their son or daughter was injured while at school. They all want to know whether they can sue the school. In most cases, the answer is that it is next to impossible to sue the school and succeed. But there are some narrow exceptions under Illinois law.
About two years ago, I received a call from a mother of a twelve-year old sixth grader who fractured his wrist in gym class at school. I was almost certain there was no case under the current law, but she sounded like a nice person and I thought there may be enough facts that would get around the Illinois prohibition on suing schools or their employees for ordinary negligence—I thought I could show “willful and wanton” behavior.
The Local Government and Governmental Employees Tort Immunity Act
That is a pretty long name for a law in Illinois that pretty much says you cannot sue your child’s school or the teachers or employees for negligence. While there are exceptions, in a nutshell it says that you cannot sue a school or its employees for negligent acts. The only way to get to a school is by demonstrating willful and wanton—just about intentional—conduct. A very high standard that the Illinois courts consistently reaffirm, shooting down all but cases based upon the most egregious actions.
If you are desperately curious, bored, or have nothing better to do, you can read more about the LGGETIA here.
My client was a 6th grader in gym class. On the surface, his fractured wrist was not going to be actionable. But then I heard more facts that intrigued me.
First of all, he was being lifted up by two of his friends. Sixth grade boys being what they are (and some would argue we boys don’t really ever improve from that state), they began horsing around. Two of them lifted him up.
Second of all, my client had been called out specifically by the gym teacher at parent-teacher conferences as being a behavior issue, especially when he was with his two friends. The teacher specifically ran after his mother at the conferences to inform her of this problem and tell her that these three boys were never going to be paired together in her class anymore. According to the mother, this was highly embarrassing to her son, as he was there when this was said.
Third, my client was on an Individualized Education Program (IEP) for his Attention Deficit Hyperactivity (ADHD). Thus, he was classified as “special ed,” and was to be kept from distractions, given more time on written tests, that type of thing.
Finally, the gym teacher at the time this happened, while still in the gym, had her back turned to the class and was talking with the custodian. Somehow, despite the children being told to “work on your gymnastics routines,” the three boys had managed to do nothing remotely close to the tumbling and other routines they were supposed to work on and were horsing around, as twelve year old boys will do when left unattended.
All That Should Be Enough
But it is not under the law.
There are actually cases in Illinois where literally no supervision occurred where the school was found no liable of willful and wanton behavior.
One further wrinkle was the selection of attorneys by the defense. The gentleman selected was the type who would file motions just because he could, cite 40 cases when 4 would do, and did everything he could to be difficult and obstinate, drawing ire from both me and the judge.
But the judge had to follow the law and personalities do not matter.
This attorney filed five separate motions to have the case dismissed. Five separate times I had to explain why my complaint stated a valid cause of action for the boy under Illinois law. I pointed out that while the children were unsupervised (and lack of supervision alone is not enough for willful and wanton in Illinois), there were other factors at work in addition to that, namely the ADHD and IEP, the gym teacher’s personal knowledge of the three friends being distractions and leading to horseplay, the dangerous nature of gymnastics, and a few other facts.
It was my argument that the confluence of factors as a whole made the teacher’s/school’s/district’s actions or inactions rise to the level of willful and wanton behavior.
On the fifth try, the motion was finally denied. All that meant is the defense now had to answer the complaint and proceed in the case. The judge kept referring to this case as “The Three Stooges,” and seemed amused by the scenario, but also did not seem persuaded that the case presented an actionable matter under Illinois law.
Every time previous, the motion had been granted, and the plaintiff given time to file an amended complaint. Each time I added more and more facts to attempt to make the behavior rise to the level of willful and wanton behavior.
In fact, he noted when he finally denied the defendants’ motion on the fifth try that “I still don’t think there is enough here, but it is at least time to force the defendant to answer the complaint.” Hardly a ringing endorsement, but we had survived finally.
But this now brought the sides together. During this time, a new attorney replaced the other defense attorney. There was a better working relationship and talk of settlement finally entered into the fray.
After months of negotiating, the case was settled for a very fair sum (especially since the case was a very possible loser based upon the law).
Quite frankly, had this gone to trial, it is very possible the case would not have made it to the jury.
Minor Case; Major Hassle
The requirement for a settlement of a minor’s case is that both a judge in the Law Division (where the case was filed) AND a judge in the probate division approve the settlement, appoint the mother as guardian, and mandate exactly what money is to be placed into an interest-bearing federally insured account for the benefit of the minor, not to be touched until he turns 18.
These motions were made, papers drafted, and the mother had to appear in court not once, but twice (before both separate judges). Ultimately, everything was approved, but it did take quite awhile.
Now, the child has enough sitting in an account to pay for some of his college. His wrist is healed, and he is a normal and healthy teen. It all worked out in the end.
- School cases are very difficult. Never try to handle them yourself, and never talk to the school or its insurer.
- Some cases are not worth taking economically or legally but we personal injury lawyers are often suckers for doing the right thing, helping the injured, and forcing the legal system to look at things a bit differently.
- Legal cases are still about people; injured children, unhelpful opposing counsel, and hamstrung judges. While many argue there is no place for personalities in the law, I would argue it is just this component that makes a case interesting, like this one.
Contact Chicago Personal Injury Lawyer Stephen Hoffman
As in all cases involving injury and potential liability, immediately get medical treatment, report the crash to police and your own insurance company, and contact a personal injury lawyer.
If you've been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has nearly 30 years of legal experience and has collected millions of dollars for his clients. He has been named a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.
Stephen handles personal injury and workers' compensation claims on a contingency fee basis, which means you don’t pay anything upfront and he only gets paid if you do. Don’t wait another day, contact Stephen now.