U-46 pushes back on lawsuit over Elgin student's death

 
 
Updated 11/27/2018 5:05 PM
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  • A fifth-grade boy died after suffering a seizure at Highland Elementary School in Elgin in 2017. His family has filed a wrongful-death lawsuit against Elgin Area School District U-46.

      A fifth-grade boy died after suffering a seizure at Highland Elementary School in Elgin in 2017. His family has filed a wrongful-death lawsuit against Elgin Area School District U-46. Brian Hill | Staff Photographer, 2018

Elgin Area School District U-46 lawyers argue the district has immunity from financial liability for a fifth-grade student at Highland Elementary who died in May 2017 after suffering a seizure during a game of tag.

But attorneys for the boy's parents contend district officials knew of the youth's conditions and it was reasonable to expect them to perform CPR or take other lifesaving measures instead of waiting seven minutes for paramedics to arrive.

The wrongful-death lawsuit was filed after the boy, 11, died on May 19, 2017; school district attorneys will argue next month that the lawsuit should be thrown out.

According to the suit, the boy was asthmatic, had a severe seizure disorder and carried an inhaler. He was playing a game of tag, also known as "statue," in an unsupervised classroom at the Elgin school, 190 N. Melrose Ave., when he started to shake, fell and hit his head, according to the suit.

School personnel, who knew of the boy's conditions, were called but failed to provide appropriate medical care, find or use the inhaler or perform CPR, the suit claims.

Michael Hernandez, an attorney for the district, argues the lawsuit should be thrown out because district employees have protection under the Governmental Employee Tort Immunity Act. Also, the plaintiffs have not shown the boy suffered seizures during tag before, which could qualify as "willful and wanton" conduct, which is an exception to the act, he argues.

"Absent such allegations, the plaintiffs cannot expect, and the law cannot require, defendants to be liable for failing to be clairvoyant," wrote Hernandez in a motion to dismiss the suit. "What happened to (the student) was upsetting to the Highland Elementary School community and the entire School District U46. However, plaintiff's claims against the defendants are insufficient and barred by the Tort Immunity Act."

Lawyers for the family contend the lawsuit centers on negligence during a "clear medical emergency" to help the ailing boy, and those claims are separate from what is protected in the immunity law.

"CPR and other basic actions in an emergency are not responses reserved only for medical professionals," William Gibbs, attorney for the plaintiff, wrote in favor of preserving the lawsuit. "It is reasonable to expect school personnel charged with providing a safe and effective learning environment, to perform CPR on a student who is unresponsive and not breathing."

The two sides are due in court on Dec. 4 to argue the matter before a judge.

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