by Laura A. Weizeorick (Spring 2017)

The bar to establish willful and wanton behavior has just been lowered. A recent decision by the Second District, in re Estate of Jeffrey Stewart v. Oswego Community School District No. 308, 2016 IL App (2d) 151117, held that a high school teacher’s failure to recognize the life-threatening nature of an asthma attack and follow school district policy to call 9-1-1 amounted to willful and wanton behavior.

Eighteen-year-old Jeffrey Stewart collapsed during a high school English class and began shaking convulsively on the floor. His teacher thought he was having a seizure and immediately ran to his side and directed two students to run to get the nurse. The teacher found Stewart was breathing and turned him on his side to prevent him from choking. He remained by Stewart’s side to keep him alert until help arrived. The teacher did not use the phone in the classroom to call the nurse’s office or 911.

Approximately seven minutes after Steward collapsed, the school nurse arrived in the classroom. She knelt beside Stewart and found he was exhibiting agonal breathing and had no pulse. She immediately started CPR. She instructed the teacher to call the nurse’s office to have them call 911 and to call for a defibrillator. The teacher then called the nurse’s office and spoke to the district’s health service coordinator who placed the call to 911. The 911 call was made seven to twenty minutes after the collapse. CPR was continued until the paramedics arrived and took over. Stewart did not regain consciousness. According to the autopsy report, the cause of death was asthma.

Stewart’s mother sued the school district, claiming that the teacher acted willfully and wantonly in response to Stewart’s collapse and that the district acted willfully and wantonly with regard to training the teacher. She also pointed to the school district’s own policy which required that someone immediately call 911 when a student is facing life and death circumstances.

The school district claimed absolute immunity under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq.), for policy determinations made with discretion and limited immunity under both the Act and Section 24-24 of the Illinois School Code against negligent conduct.

The trial court found absolute immunity under the Act was not available as a matter of law as the teacher did not make any policy determinations. The case went to trial on the question of whether the teacher was merely negligent and thus immune from liability under the Act and the Illinois School Code or whether he acted willfully and wantonly, and immunity did not apply. The jury found the teacher guilty of willful and wanton conduct and returned a verdict of $2.5 million in favor of Stewart’s estate. The District appealed.

On appeal, the District argued that even if the teacher’s response to Stewart’s collapse was misguided, the teacher had acted with care and did not meet the heightened definition for willful and wanton conduct set forth under the Act. According to the statute, “willful and wanton conduct” means “a course of action which shows actual or deliberate intention to cause harm” or “an utter indifference to or conscious disregard for the safety of others.” Because the teacher immediately sent for a nurse, ran to Stewart, turned him on his side, and remained with him until help arrived, the District maintained that the teacher did not show the kind of “utter indifference or conscious disregard” for Stewart that amounted to willful and wanton conduct.

The court first examined the standard for willful and wanton conduct. Despite a body of precedent to the contrary, it dismissed the notion that the Act requires a heightened standard for willful and wanton conduct. Instead, it relied on the Illinois Supreme Court decision in Harris v. Thompson, 2012 IL 112525, to find that the statutory definition is entirely consistent with common law precedent.

It then used a totality of the circumstances analysis to determine if the teacher’s conduct was willful and wanton, highlighting the following three factors: (1) whether the conduct was a deviation from standard operating procedures or a policy violation; (2) whether there was an unjustifiably lengthy response time; or (3) whether the conduct was an unjustifiably inadequate response to a known danger.

First, the court found the teacher violated clear school district policy by failing to call 911 under life and death circumstances. The court acknowledged that the teacher was not a medical professional but stated that most people would view a young person’s collapse and struggle for breath and consciousness as a medical emergency. Further, it found the teacher’s testimony, that he repeatedly asked Stewart to “stay with him” and that he did not need to instruct fellow students to “run” for the nurse as they understood the urgency of the situation, to be acknowledgement that Stewart was fighting for his life.

Next, the court explained that waiting 7 to 20 minutes to call 911 was an unjustifiable response time and that the teacher’s overall actions were inadequate in response to a life-threatening danger. Although the teacher’s initial actions to send for a nurse and run to Stewart’s side do not constitute willful and wanton conduct, his subsequent inaction for 7 to 20 minutes after those first few minutes was out of balance with the life and death circumstances. The Second District therefore affirmed the lower court and upheld the multi-million-dollar judgment.

Stewart puts educators and all local government agencies on notice that the standard for willful and wanton conduct has been lowered. Stewart now requires that a 911 call be made within minutes for “medical emergencies” or “life and death situations.”

In light of Stewart, school districts and all local governmental agencies should diligently review their policies and consider with legal counsel whether it would be prudent to include a provision for responding to medical emergencies. Further, management should ensure that all staff members are trained on the agency’s policies and know how to implement them.