St. Clair County Circuit Judge Chris Kolker denied an East St. Louis school district’s motion to dismiss an amended complaint alleging the school is liable after a high school student collapsed during off-season conditioning training because it’s employees failed to administer life-saving aid while waiting for paramedics.
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.”
After previously granting its first motion to dismiss, Kolker denied East St. Louis School District No. 189’s motion to dismiss the amended complaint on Oct. 2.
The school district filed its motion to dismiss the amended complaint on Aug. 7, arguing that the complaint is barred “by the same affirmative matters that barred the original complaint.”
The school district argued that the complaint does not allege that emergency responders were not promptly notified and does not allege that the student was instructed to continue in activities once a medical emergency or danger became apparent.
“Moreover, the First Amended Complaint is barred by the School Code, which requires affirmative actions by school districts and employees in order to constitute willful and wanton conduct,” the motion stated.
Plaintiff Kimberly Falconer filed a response to the motion to dismiss on Aug. 19 through attorney Lanny Darr of Darr Law Offices in Alton. She argued that the defendant did not comply with Illinois Automated External Defibrillator Act or the Physical Fitness Facility Medical Emergency Preparedness Act.
“These statute place a mandatory obligation on the school districts,” the response stated. “Noncompliance makes the entity liable for simple negligence.”
“In no circumstances does a government entity have absolute immunity for its failure to have a defibrillator or trained staff present during gym activities,” it continued.
Falconer argued that the complaint does not allege the defendant’s employees failed to examine or diagnose the decedent, nor does it contend that the employees should have predicted his collapse.
“Rather, plaintiff contends there are statutory mandates and school policy that defendant refused to follow,” the response stated. “It was a willful disregard of its mandatory obligations that give rise to this claim.”
Kimberly Falconer, special administrator of the estate of Jermaine Falconer, filed her original complaint on Feb. 18 against the school district.
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 its original motion to dismiss the complaint on March 27, arguing 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 stated.
The district further argued 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 stated.
Kolker granted its motion on June 30.
Falconer responded by filing an amended complaint on July 10 adding allegations and renaming her claims.
The school district filed a third party complaint against Warma Witter Kreisler & Associates Inc. on Sept. 11 through attorney Thomas Hunter of Becker Hoerner & Ysursa PC in Belleville.
The school district claims Warmer Witter Kreisler agreed to provide insurance coverage for the premises and operations of the East St. Louis School District, including coverage of activity to the athletic facilities and conduct of athletic operations. The school district claims it paid all premiums for the policy.
“That East St. Louis School District No. 189 upon being made aware of the claim for damages notified its insurer and was advised that coverage was not provided for the incident of March 6, 2019 as the coverage for athletic operations was not included in the insurance procured by Warma Witter Kreisler & Associates,Inc.,” the third party complaint states.
The school district accuses the insurer of failing to obtain insurance coverage for the athletic facilities, failing to obtain insurance coverage for athletic operations, and failing to renew insurance coverage.
As a result, the school district “continues to incur legal expenses and has been exposed to the potential of an award of damages.”
The school district seeks declaratory judgment ruling that the insurer breached its duties and is responsible to indemnify and compensate East St. Louis School District No. 189 for any award and expenses resulting from the lawsuit.
St. Clair County Circuit Court case number 20-L-148