Izabela Liszewski v. Board of Trustees of the University of Illinois

OPINION

GAGLIARDO, J. Claimant Izabela Liszewski brought this tort claim for injuries sustained to her nose and teeth during a class activity in the hallway of a building at the University of Illinois Chicago (UIC) involving a pinata. Specifically, she was struck in the face with a titanium bat that flew out of another student’s hand while he swung at the pinata.

Claimant’s Complaint alleges that Respondent through its agent Professor Torica Webb, who approved and supervised the activity, was negligent for permitting an unreasonably dangerous activity during class and for failing to reasonably supervise said activity to avoid injury to other students.

On June 13, 2023, a trial in this matter was held before a Commissioner who heard testimony from Claimant and Professor Torica Webb. Subsequently, both parties then filed post-trial briefs. Based on the hearing, post-trial briefs, and the rest of the record before us, this Court finds as follows:

Facts

Claimant Izabela Liszewski testified that she was studying human development and learning at UIC. Claimant and her classmates were presenting their final projects in a class called Introduction to Race, Ethnicity, and Education.

The class was taught by Torica Webb, who was an assistant professor for UIC at the time.

The presentations were supposed to creatively showcase what the students had learned about the intersection of race, ethnicity, and education and were to be presented in groups of two or three students. Except for the last presentation, which involved a pinata, all the presentations were in the classroom.

The students presenting the pinata intended to show the danger of stereotypes for Black, Latinx, and Indigenous people by stuffing the pinata with pieces of paper on which harmful stereotypes were written. For this presentation, Webb told the class of about 30 to 40 students to go out into the hallway and stand in the vicinity of the pinata, so they could see the presentation.

[*225] One of the student presenters held the pinata up with a string while standing on one of the bottom steps of the stairway leading up to the next floor.

The presenters then called up a volunteer from the class and gave him a titanium baseball bat to swing at the pinata. The rest of the class was standing in the hallway, which was about seven to eight feet wide, facing the student who would be swinging the bat in their direction. Webb estimated that the students were about a car length away from the pinata and the student swinging at it.

Webb testified that she knew it was possible that swinging a bat could lose control of it and that as a baseball fan, she had seen baseball bats leave batters’ hands before. She also indicated that she expected that someone attempting to break a pinata with a bat would swing with force. However, Webb did not consider relative positions of the student onlookers and the student swinging the bat. Nor did she give any safety instructions, although Webb herself was standing about six feet behind the location of the where the batter was swinging.

Webb said that she was not concerned about the activity because the items inside the pinata were pieces of paper; and, also, she thought that the student onlookers were far enough away since they were outside the swinging radius of the student swinging the bat. According to Webb, the first student volunteer swung at the pinata and struck it, but the pinata did not crack. The presenters then requested a second volunteer, and a student named Omar Carillo volunteered. Webb did not ask Carillo if he ever swung a bat before. Webb recalled Carillo swing at the pinata with the metal bat. She described it as a regular baseball swing with some force and agreed that someone swinging at a pinata would use force to strike it, Webb did not see what happened after Carillo swung at the pinata.

A video taken by a student shows Carillo swinging the bat and striking the pinata; the bat then flies out of Carillo’s hands, and screams are heard. The camera then turns to Claimant who is on the ground with students attending to her. Webb did not see the bat leave Carillo’s hands, and she did not know whether the bat had slipped or if Carillo had failed to hold onto it. Claimant did not remember anything between the time Carillo volunteered to swing and when she was on the floor with her classmates attending to her. Soon after, an ambulance came to take Claimant to the emergency room at the University of Illinois Hospital. She had lost one of her front right teeth; her surrounding teeth were chipped and had to be filed. One of them was chipped so badly that she needed a crown. Claimant then followed up at UIC College of Dentistry, where she received further treatment, including veneers as well as a bone graft to proceed with a dental implant.

However, the dental implant surgery at UIC failed, so she had to have a second implant surgery at another facility where they also discovered she had a gum infection and periodontal issues. Fortunately, the second implant surgery was successful. But until the implant was put in, Claimant had to wear a filler in her mouth because she was working as a teacher during that time and was concerned that young students would be frightened by her appearance.

[*226] Claimant also suffered permanent damage to her nasal passageway and had to seek treatment for a deviated septum. Thus far, her doctor has tried allergy medications, pain medications, and inhalers. If Claimant’s symptoms do not improve, she will have to get a septoplasty.

Claimant who was 26 years old at the time of the hearing, still has medical issues and pain. She still has difficulties with breathing and her allergies are worse. And even though her second implant surgery was successful, Claimant still experiences sensitivity to hot and cold at the implant site. Also, Claimant’s gums bleed whenever she brushes or flosses, and her periodontal disease remains untreated. Claimant submitted an exhibit of medical bills totaling $30,270.12, which Respondent stipulated were fair and reasonable.

On October 2, 2020, Respondent filed a Motion to Dismiss asserting that Claimant failed to exhaust her administrative remedies pursuant to 74 Ill.Adm.Code 790.60 because she failed to first file a claim in circuit court against Omar Carillo, the student swinging the bat that hit Claimant in the face. On December 17, 2021, this Court filed its order denying Respondent’s Motion to Dismiss and found that “the current state of the record leaves this Court uncertain as to what, if any, legal theories could have been brought against any third-party tortfeasors.”

Analysis

Negligence and Duty To establish a negligence claim for an injury to a student participating in a classroom/school activity, the student/claimant must prove: (1) that the respondent owed a duty to exercise due care for the safety of the student; (2) the actual degree of care required of the respondent; (3) that the respondent failed to exercise the requisite degree of care; and (4) that the respondent’s failure to exercise due care was a proximate cause of the injury. Lynch v. Board of Education, 82 Ill.2d 415 (1980).

Generally, school officials and teachers owe their students a duty to exercise the degree of care that a reasonably prudent person would exercise under the circumstances. Medina v. Illinois, 55 Ill.Ct.Cl. 364, 366 (2003). Claimant argues that Respondent, via its agent/professor Torica Webb, breached this duty.

We agree.

Despite knowing that there was a risk that a metal bat could fly from a student’s hand, Webb allowed the students to use it to crack open the pinata.

Further, she had the student onlookers facing the student swinging the bat toward them from about a car length away-because, as she testified, she did not consider whether the students were far enough to avoid injury if the student swinging the bat loses control of the metal bat while swinging it.

Because of the Respondent’s negligence Claimant suffered serious injuries.

Ms. Liszewski lost a tooth, numerous other teeth were chipped, she suffered a gum infection, and she sustained a deviated septum.

[*227] Moreover, these damages were proximately caused by Respondent’s breach of duty. Proximate cause is any cause which, in natural or probable sequence, produced injury complained of. Harry W. Kuhn Redi-Mix Concrete v.

State, 45 Ill.Ct.Cl. 33, 41 (1993). It need not be the only cause or the last cause or the nearest cause. It is sufficient if it occurs with some other cause acting at the same time, which, in combination with it, causes the injury. Id. The term “proximate cause” encompasses two distinct requirements: “cause in fact” (or actual cause) and “legal cause.” Lee v. Chicago Transit Authority, 152 Ill.2d 432, 455 (1992).

Respondent’s negligent conduct will be considered the “cause in fact” of an injury if it was a material element or substantial factor in bringing about the injury; but for the negligent conduct, the injury would not have occurred. Abrams v. City of Chicago, 211 Ill.2d 251, 258 (2004). Here, but for Webb allowing the students to use a metal bat to swing at a pinata, and have them congregate in a narrow hallway, only a car length in front of the student swinging the metal bat, this injury would not have occurred.

Legal cause is essentially a question of foreseeability; a negligent act is the legal cause of an injury if the injury is of a type that a reasonable person would see as a likely result of his conduct. Lee, 152 Ill.2d at 456. As Claimant notes in her brief, her injuries were not highly extraordinary but are instead a wholly foreseeable consequence of getting hit in the face by a metal bat that goes flying out of someone’s hands in close proximity while swinging at a pinata. For all these reasons, we find that Claimant has established her claim of negligence against Respondent.

Failure to Exhaust Administrative Remedies Respondent argues that Claimant’s claim should be denied because she has failed to comply with Rule 790.60 because she did not pursue a negligence claim against Carillo, the student who swung the bat that hit Claimant. Court of Claims Rule 790.60 provides that a claimant: Shall, before seeking final determination of his claim before the Court of Claims, exhaust all other remedies, whether administrative, legal or equitable, against all other sources of recovery for the injury or damages sought to be recovered by the claim, provided that no frivolous or unreasonable action is required to be brought against any third party in order to comply with this exhaustion of remedies requirement.

74 Ill. Adm. Code 790.60

With respect to this requirement, we have long held that”[i]t is inadequate merely to say that someone else said or admitted that a third-party may have some liability… this Court requires the Respondent to carry this initial burden of proving that there is a viable cause of action against the putative third-party.” Erving v. Trustees of the University of Illinois, et al., 67 Ill.Ct.Cl. 122, 124 (2014). The provision does not require a claimant to file frivolous lawsuits against possible third parties. See Stupp Brothers Bridge and Iron Co. v. State, 51 Ill.Ct.Cl. 195 (1999) (nothing that the Court of Claims has [*228] even found that claimants have not failed to exhaust administrative remedies where the claimants failed to sue third parties who they established were unavailable or judgmentproof).

To that end, we denied Respondent’s Motion to Dismiss before trial because we found that “the current state of the record leaves this Court uncertain as to what, if any, legal theories could have been brought against any third-party tortfeasors.”

After the hearing in this matter, Respondent has still failed to carry its burden in proving there was a viable cause of action against Carillo that should have been filed.

There were only two witnesses at the hearing, and neither testified with any facts to indicate Carillo was negligent. Claimant testified that she had no memory of Carillo swinging the bat; she only remembered him volunteering. And the other witness, Torica Webb, testified that there was nothing wrong with the way Carillo swung the bat. She said it was a regular baseball swing with some force, and that one would expect someone swinging at a pinata to swing at it with some force.

Nonetheless, Respondent argues in its closing brief that there was a claim of negligence against Carillo because the video footage shows that he did not inspect his hands or the bat to check for conditions like sweat that would cause the bat to slip out of his hands, he did not hold onto the bat tightly enough, and that he swung too forcefully.

But this is conjecture. We do not know why the bat left Carillo’s hands.

The video does not show Carillo doing anything out of the ordinary or unreasonable. He did not appear to use any more force than one would expect when swinging at a pinata, especially given that the student before him was unable to break the pinata when he swung at it.

Respondent also argues that Claimant could have argued a theory of res ipsa loquitor. But under this theory, one of the two elements to establish is that the alleged injury does not usually occur without negligence. Johnson v. Armstrong, 2022 IL 127942, 35.

That is not the case here. Webb herself testified that she had seen bats fly out batters’ hands before. This is not an uncommon occurrence. However, in a baseball or softball field, there is much more distance between the batter and the players in front who could get hit. And the player closest to the batter has a mask on.

Here there was just a car length between the student onlookers and the students swinging the bat. Precisely because accidents like a bat flying out of a student’s hands can happen, even without negligence, it was foreseeable that an injury could occur if a student swung a metal bat in a narrow hallway while standing only a car length away from the students he is facing while swinging the bat.

Accordingly, we find Claimant’s claim is not barred for failing to file a claim against Carillo and that she has established her claim for negligence against Respondent.

This leads us to what damages she is entitled to. Claimant asserts that this Court should award damages of $350,270.12 based upon her medical expenses of $30,270.12, and her past, present, and future pain and suffering and loss of normal life.

[*229] In the almost seven years since the incident, Claimant has undergone a bone graft in her mouth, two dental implant surgeries, and several dental procedures to repair her chipped teeth. Despite having all these procedures, Claimant testified that her implant is still sensitive to hot and cold. Also, her breathing issues and allergies are worse than they were prior to the incident, and if they do not improve, she might seek a septoplasty surgery to repair her deviated septum. Further, her periodontal issues remain unresolved, and her gums bleed every time she brushes or flosses. The Claimant argues that the undisputed evidence shows that she will continue to have these issues in the future.

Respondent counters in its brief that this $350,270.12 is an unreasonable amount because Claimant’s dental issues were resolved within two years and there is no evidence that the septoplasty - which Claimant has not elected to undergo for the last seven years - will be medically necessary in the future.

With respect to Claimant’s possible septoplasty, we agree with Respondent that Claimant has not established its likelihood of occurring in the future. With respect to Claimant’s dental issues, we find that, contrary to Respondent’s position, they are not resolved. Claimant still has sensitivity to hot and cold where her implant is. Further, she still has bleeding gums.

However, it is unclear if the bleeding gums are from the periodontal disease or the implant. It is also unclear why the periodontal disease has been unresolved for almost seven years or how it was caused by the accident. Given all of the above, we award Claimant $120,000.00.

IT IS HEREBY ORDERED that Claimant is awarded $120,000.00 in final disposition of this claim.