478 F.2d 158 (10th Cir. 1973), 72-1390, Wells v. Colorado College

Docket Nº:72-1390.
Citation:478 F.2d 158
Party Name:Cheryl WELLS, a minor by her father and next friend, Carroll G. Wells and Carroll G. Wells, Plaintiffs-Appellees, v. COLORADO COLLEGE, Defendant-Appellant.
Case Date:April 23, 1973
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 158

478 F.2d 158 (10th Cir. 1973)

Cheryl WELLS, a minor by her father and next friend, Carroll G. Wells and Carroll G. Wells, Plaintiffs-Appellees,

v.

COLORADO COLLEGE, Defendant-Appellant.

No. 72-1390.

United States Court of Appeals, Tenth Circuit.

April 23, 1973

Argued and Submitted March 28, 1973.

Page 159

Reed L. Winbourn, of Zarlengo, Mott & Carlin, Denver, Colo., for defendant-appellant.

John F. Bennett, of Bennett, Heinicke, Morrison & Holloway, Colorado Springs,

Page 160

Colo. (Howard Morrison, of Bennett, Heinicke, Morrison & Holloway, Colorado Springs, Colo., on the brief), for plaintiffs-appellees.

Before BREITENSTEIN and DOYLE, Circuit Judges, and KERR, [*] District Judge.

WILLIAM E. DOYLE, Circuit Judge.

In this diversity action, the plaintiff, suing through her father, recovered a judgment against Colorado College in the amount of $150, 000.00. In addition, her father, who was also maintaining an action in his own behalf for actual damages, recovered the sum of $15, 742.43. The incident which gave rise to the injuries and to the lawsuit was an unusual one. Plaintiff was injured in the course of taking a judo lesson which was sponsored by the appellee college.

Plaintiff was shown to have resided in Illinois but was at the time enrolled as an undergraduate student at Colorado College. The judo class which the plaintiff was taking at the time of the injury had been arranged by the college as a self-defense measure for the students-there having been a number of incidents involving assaults which had occurred on the campus. The college employed two Colorado Springs police officers to conduct the classes. The students worked in pairs. After having received instruction, they practiced on one another. The particular exercise which allegedly produced the injury was a hip throw. The person executing the hip throw grasps the partner by the shoulders and turns quickly. By throwing the person grasped over the hip it causes her (or him) to lose balance. The person throwing eases the other to the mat. The plaintiff's partner was unable to throw her and the policeman instructor demonstrated the throw on the plaintiff. She was thrown on her back but did not land on the mat. The two mats had, according to the evidence, come apart. Plaintiff's back hit partly on the mat and partly on the floor.

Plaintiff testified to immediate awareness of back pain. She attempted to work out the injury by exercise and she also applied heat and rested it. None of this succeeded and although plaintiff tried to carry on normal activities including skiing, she was unable to do so and finally she visited an orthopedic surgeon, a Dr. Hauser, while on spring vacation at Evanston. He applied a body cast but this was also unsuccessful. Dr. Hauser diagnosed plaintiff's injury as intervertebral disc in the lower back (between L4 and L5). During the following days she fell down while walking in her dormitory. She was unable (due to her weakened condition) to finish the semester. She returned home and thereafter was taken to Mayo Clinic. A laminectomy was performed on June 24, 1969. However, this operation did not alleviate her troubles. When she returned to school in the fall she continued to experience intense pain as a result of which further surgery became necessary. This was performed at the Mayo Clinic on February 6, 1970. Plaintiff was not released from the Clinic until...

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