HOWLAND Appeals court orders trial in school lawsuit

The suit was filed by the parents of a seriously injured student athlete.
By ED RUNYAN
VINDICATOR TRUMBULL STAFF
WARREN -- A lawsuit against Howland schools by a baseball player who got a serious head injury during a practice drill is being returned to Trumbull County Common Pleas Court for trial, after its decision in the district's favor was reversed by an appeals court.
The 11th District Court of Appeals issued its opinion this week.
The lawsuit was filed in common pleas court by Jeffrey Dana Elston and his parents, Pamela and Jeffrey David Elston, on May 2, 2003. It was filed against the school system and Thomas Eschman, who was baseball coach at Howland at the time.
It states that Elston, 15 at the time, was a freshman on the team and was hit in the head during a practice at the high school April 29, 2002. Elston was using a device called an "L-screen" to conduct a hitting drill called short toss.
The regulation distance between the pitcher and home plate is 60 feet, 6 inches. Short toss is a practice drill in which a pitcher lobs a baseball from behind the L screen to a batter from a distance of about 30 feet.
Needed brain surgery
On the fourth or fifth pitch, the lawsuit states, the ball was hit by a batter and ricocheted off the horizontal crossbar of the L screen and hit the right side of Elston's head.
Elston was later taken by helicopter to Rainbow Children's Hospital in Cleveland for brain surgery, and four titanium plates and screws were permanently implanted in his head, the record states.
Eschman, who was coach at Howland from 1972 to 1987 and again starting in 2002, said he first used an L screen in 1972 and continued using one "ever since." Eschman said he demonstrated use of the device but was not present when Elston was hit in the head, the record states.
An outside baseball instructor called as an expert witness, John W. Zizzo, said in an affidavit that Eschman had a duty to make every athlete wear a protective helmet in the batting cage during short toss, to instruct and demonstrate the proper way to throw behind an L screen, and should have allowed players only to kneel or sit behind the screen while using it.
Ruling for school district
The common pleas court, in a case assigned to Judge Andrew Logan, had ruled in favor of the school system without a trial. The Elstons indicated that Eschman was voluntarily dismissed from the matter, and that their claims against the school district would continue on appeal. But the 11th District Court of Appeals this week said the case will have to be heard again in the common pleas court.
The appeals court ruled the case should not have been decided without a trial because the law grants immunity to "either the political subdivision or its employees, not both."
In order for the coach to have been granted immunity, the ruling states, he would have to be acting "based upon the exercise of judgment or discretion of the political subdivision itself."
Additionally, the court said there are valid questions of whether Eschman acted with "a malicious purpose, in bad faith, or in a wanton or reckless manner."
The school district's lawyer, Nick C. Tomino of Medina, could not be reached Tuesday.
Court's opinion
The opinion was written by Judge Colleen M. O'Toole with Judge William M. O'Neill concurring. Presiding Judge Donald R. Ford dissented, saying the Elstons' complaint "did not mention any malicious purpose, bad faith, wanton or reckless actions."
Judge Ford also said he believed immunity could be granted to schools in athletic situations in which the discretion of the employee was not exercised with malicious purpose, in bad faith or in a wanton or reckless manner.
runyan@vindy.com