The mother of an East St. Louis high school student who collapsed during off-season conditioning training argues that a wrongful death lawsuit against the school district should not be dismissed because the district failed to administer life-saving aid while waiting for paramedics despite a school policy requiring an automatic external defibrillator (AED) and trained adult be available during school activities.
Sophomore football player Jermaine Falconer, 16, died March 6, 2019, after collapsing in the school’s physical fitness facility, or weight room.
“The East St. Louis Senior High School is grieving the loss of one of our student athletes, tenth-grader Jermaine Falconer” district spokeswoman Sydney Stigge-Kaufman said in a statement following the incident. “We are also investigating the circumstances under which he passed, as the student had been participating in off-season athletic training. We send our sincere condolences to the family as they cope with this tragic loss of a young life.”
Kimberly Falconer, special administrator of the estate of Jermaine Falconer, filed the wrongful death suit Feb. 18 in St. Clair County Circuit Court against East St. Louis School District No. 189.
According to the complaint, Jermaine Falconer was a student at East St. Louis Senior High School when he was using the school’s physical fitness facility. The facility was operated by the school for students to perform exercises under the supervision of the defendants’ employees, the suit states. While using the physical fitness facility, Jermaine Falconer collapsed. The suit states that witnesses called emergency services, and they arrived to treat him at approximately 4:19 p.m.
“Prior to arrival of EMS, plaintiff’s decedent received no emergency cardiopulmonary resuscitation,” the suit states.
Emergency services reported that Jermaine’s breathing was shallow and transported him to Touchette Hospital in Centreville, where he was pronounced dead at 5 p.m.
“The cause of death was listed by St. Clair County Coroner as probably cardiac dysrhythmia, an irregular and abnormal rhythm that prevents the heart from circulating blood. Untreated, it can cause death within minutes. Properly treated it is survivable,” the suit states.
The plaintiff argues that the school district was required to have at least one AED at the physical fitness facility with someone trained to use the AED while the facility is in use.
According to the East St. Louis School Board Policy, an automated external defibrillator should be available at every physical fitness facility as well as a trained AED user during activities or events sponsored and conducted or supervised by the district.
The plaintiff alleges the defendant breached its duty to Jermaine Falconer by ignoring its own internal policies created for the safety of students, failing to train or supervise employees to respond to emergency circumstances, failing to staff the weight ro0m during student use, failing to equip its premises with an AED or similar device, and failing to provide necessary first aid equipment to respond to cardiac events.
The plaintiff also claims the defendant “showed an actual or deliberate intention to cause harm or showed an utter indifference to or a conscious disregard for the safety of persons such as decedent” by failing to equip its facilities with an AED and failing to train employees with the skills to properly administer cardiopulmonary resuscitation.
The school district filed a motion to dismiss the complaint on March 27 through attorneys Thomas Hunter, Garrett Hoerner, and T. Adam Hoerner of Becker Hoerner & Ysursa PC in Belleville.
The defendant argues that the complaint is barred by the Local Governmental and Governmental Employee Tort Immunity Act.
Specifically, the Act provides “absolute immunity to school districts and their employees from any claim based on the failure to provide medical care.”
“The complaint does not allege that emergency responders were not promptly notified as would be necessary for any claim against a school district based on its response to an apparent medical emergency,” the motion states.
The district argues that claims of inadequate supervision cannot be based on the failure to render medical care while waiting for medical professionals to arrive.
“Under circumstances where the need for medical care is apparent, a school district and its employees are merely obligated to seek assistance so that a medical examination and treatment may be given by professionals,” the supporting memorandum states.
The district further argues that the claims do not assert willful and wanton conduct, which is necessary for any claim based on supervision of students. The complaint “is more directed at a claim of inaction or absence of supervision,” the defendant alleges.
Kimberly Falconer responded to the motion on May 11 through attorneys Lanny Darr of Darr Law Offices in Alton and Michael Sudekum of St. Louis.
Darr wrote that the motion is premature and only raises theoretical, potential defenses. He adds that the immunity only applies to claims based on the negligent diagnoses of physical injury.
“Plaintiff’s claims do not allege the failure to examine or diagnose a condition of plaintiff’s decedent. Plaintiff claims the defendant failed to follow school policy and state law that created mandatory, nondiscretionary, mandates put in place to protect human life, including to have available an automated external defibrillator,” he wrote.
Darr further argues that the defendant failed to follow state laws and board policy regarding automatic external defibrillators, which is not protected by immunity.
Darr also wrote that the defendant does not have absolute immunity.
“There is nothing at this stage of the proceedings to conclude that the decedent died due to the appropriate act of discretion when creating a policy that was implemented throughout the school district.
“In fact, defendant has failed to identify any policy that was created through an act of discretion and which is also applicable to our facts. Until such time as defendant puts forth a policy that it believes shields it from liability, the argument is without merit,” the memorandum states.
The school district filed a reply to the plaintiff’s response on June 4, arguing that the plaintiff’s response fails to address the defendant’s analysis or other applicable cases where dismissal was granted.
The defendant further argues that the response fails because it is based on claims of lack of supervision of students.
“To be clear, the district does not argue, nor does the motion contend, that a public school district could never be liable when its employees fail to respond to a medical emergency. As was stated in the motion, a duty can rest on the failure to notify appropriate first responders when a known medical emergency is presented,” the reply states.
The district argues that the plaintiff attempts “to place a duty on the district equivalent to that placed on paramedics.”
“Regardless of any policies, procedures or regulations regarding automatic external defibrillators, the duty of the district and its employees, if any, would be to notify first responders, such as EMS, which the complaint concedes had been done by witnesses,” the reply states.
On June 8, the case was set for trial July 26, 2021.
St. Clair County Circuit Court case number 20-L-148