Applebaum v. Nemon

• Decision Date: 31 May 1984
• Docket Number: No. A14-83-376-CV,A14-83-376-CV
• Citation: 678 S.W.2d 533
• Parties: 21 Ed. Law Rep. 395 Sanford APPLEBAUM, et al., Appellants, v. David NEMON, et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 533

678 S.W.2d 533

21 Ed. Law Rep. 395

Sanford APPLEBAUM, et al., Appellants, v. David NEMON, et al., Appellees.

No. A14-83-376-CV.

Court of Appeals of Texas Houston (14th Dist.).

May 31, 1984.

Larry L. Gollaher, Gollaher & Hart, Dallas, Howell E. Stone, Talbert, Giessel, Stone, Barker & Lyman, Houston, for appellants.

Clifford Gorman, Reginald A. Hirsch; Dunn, Stern, Lipstet, Singer & Hirsch, Houston, for appellees.

Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

This wrongful death and survival action was brought by appellees, David Nemon and Suzanne Nemon, for the death of their two year old son, Howard Nemon against appellants, Montessori Educational Corp. of Texas, d/b/a Houston Children's Center, and its officers and employees, Sanford Applebaum, Marilyn Applebaum, Noreen DeBoy, and Jackie Jones. Appellees delivered Howard into the care and custody of Houston Children's Center on December 19, 1980.

The testimony concerning the circumstances of Howard Nemon's death was as follows. After Howard was delivered to the day care center on December 19, 1980 by his parents, he was taken outdoors for twenty to twenty-five minutes of free play. Jackie Jones observed Howard playing on various equipment. A short time later, Jackie Jones began lining the children up to return inside and discovered Howard with his head on the playground equipment known as the platform, feet touching the ground with his hands near his head. After Howard did not respond to clapping hands, she went over and picked Howard up and laid him on the platform. She then summoned Sanford Applebaum who examined Howard for ten seconds and then called the operator to obtain an ambulance. Applebaum returned to Howard and rendered mouth-to-mouth resuscitation for two to three minutes. He then telephoned the fire department direct for an ambulance a second time, because the ambulance had not yet arrived. He returned to Howard and continued mouth-to-mouth resuscitation until the ambulance arrived. Howard was transported by the ambulance to Southwest Memorial Hospital. He was later transported to Texas Children's Hospital where he was pronounced dead at 2:59 p.m. on December 22, 1980. Howard was brain dead at the time he first received treatment at the hospital.

By special issues the jury (1) failed to find that Howard Nemon was injured on the playground; (2) found that the day care center's failure to provide adequate life-saving aid to Howard was negligence proximately causing his death; (3) found that the day care center's failure to instruct its employees in proper measures to be taken in an emergency was negligence proximately causing Howard's death; and (4) assessed values for various types of damages. The trial court rendered judgment on the verdict for appellees in the amount of $304,822.53 against appellees.

Appellants' raise eight points of error on appeal. We will address only the third and fourth points of error because our holding on these points is dispositive of this appeal. We find no evidence to support the jury findings of negligence and proximate cause against appellants. We therefore reverse and render.

Appellant contends in its fourth point of error that the jury's findings that appellant was negligent in (1) failing to provide adequate and proper life-saving aid to Howard Nemon and (2) failing to instruct its employees as to the proper measures to be taken in the event of an emergency on its premises are immaterial because appellant did not owe a duty to provide adequate life-saving aid or to instruct its employees in emergency procedures. There can be no liability if the defendant has not breached a duty which he owed to the plaintiff. Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976).

There is no Texas statute or regulation which imposes on day care centers these specific duties. We must determine whether these duties arise from the common law.

Deeply rooted in the common law is the doctrine that a person owes no duty to render aid to one for whose initial injury he is not liable. 57 Am.Jur.2d § 41 (1971); 33 ALR3d 301 (1970); Riley v. Gulf, C. & S. F. Ry. Co., 160 S.W. 595, 597 (Tex.Civ.App.--Amarillo 1913, no writ.); Boyer v. Gulf Colorado & Santa Fe Railway Co., 306 S.W.2d 215, 220 (Tex.Civ.App.--Houston 1957, writ ref'd n.r.e.). However, in other jurisdictions, it has been held that certain relationships may impose a duty to render assistance to one for whose initial injury he is not liable.

The relationship between Howard Nemon and appellants was that which exists between a child and the day care center to which the care of the child has been entrusted. The relationship is an economic one in which the day care center in exchange for a fee agrees to care for the child and to protect the child from harm during the time the child is in the custody of the day care center. We hold this relationship includes both an implied agreement and a duty to render reasonable assistance to a child in its custody who becomes imperiled.

Restatement of the Law of Torts, Second, § 314 provides in part:

(1) A common carrier is under a duty to its passengers to take reasonable action ...

(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.

(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

(4) One who is required by law to take or who voluntarily takes custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

Appellants, as the day care center with custody of Howard Nemon, would come under either subsection three or four of § 314. Illustration seven under § 314 demonstrates the duty and liability which can arise from the relationship which existed between appellants and Howard Nemon.

7. A is a small child sent by his parents for the day to B's kindergarten. In the course of the day A becomes ill with scarlet fever. Although recognizing that A is seriously ill, B does nothing to obtain medical assistance, or to take the child home or remove him to a place where help can be obtained. As a result, A's illness is aggravated in a manner which proper medical attention would have avoided.

This illustration is based on Pirkle v. Oakdale Union Grammar School District, 40 Cal.2d 207, 253 P.2d 1 (1953); Cf. Barbarisi v. Caruso, 47 N.J.Super. 125, 135 A.2d 539 (1957).

The relationship giving rise to the duty to render aid in this cause is analogous to the relationship between a student and the school which he attends. The courts have been quick to recognize that this relationship gives rise to a duty to render assistance to a student initially injured without the fault of the school. Pirkle v. Oakdale Union Grammar School District, supra; Duda v. Gaines, 12 N.J.Super. 326, 79 A.2d 695 (1951). Although there is no authority in this state which applies the duty to render aid to a day care center we choose to follow the Restatement of the Law of Torts 2d Ed. and the law of other jurisdictions which hold that day care centers have a duty to render aid to children in their custody. The imposition of this duty is consistent with the Minimum Standards for Day Care Centers promulgated by the Texas Department of Human Resources. These standards require day care centers to give first aid when needed, to call the physician named by the child's parents in the case of critical injury or illness, and to take the child to the nearest emergency room when necessary.

The standard of care imposed on one with a duty to render aid is explained in Comment f. of § 314, Restatement of the Law of Torts 2d.

f. The defendant is not required to take any action until he knows or has reason to know that the plaintiff is endangered, or is ill or injured. He is not required to take any action beyond that which is reasonable under the circumstances. In the case of an ill or injured person, he will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained. He is not required to give any aid to one who is in the hands of apparently competent persons who have taken charge of him, or whose friends are present and apparently in a position to give him all necessary assistance.

The standard of care which appellants were under was whether they acted reasonably under all the circumstances in their rendition of aid. Appellants were not insurers of the life of Howard Nemon. In most circumstances a defendant will not be required to do more than administer whatever initial aid he reasonably can and knows how to do, and take reasonable steps to place the injured person in the hands of a competent physician. 13 Am.Jur. Proof of Facts 2d 709; 57 Am.Jur.2d § 46; W.L. Prosser, Handbook on the Law of Torts, § 54 Acts and Omissions 343 (1971).

In fact, if the person who is charged with the duty to render aid is not possessed with medical training and he undertakes to render medical assistance, he may be liable if such assistance is found to be detrimental. Mogabgab v. Orleans Parish School Board, 239 So.2d 456 (La.Ct.App.--1970). Courts do not expect school personnel to possess a physician's knowledge nor do they want school personnel to assume the role of physician. Welch v. Dunsmuir Joint Union High School Dist., 326 P.2d 633 (Cal.Ct.App.1958); Guerrieri v. Tyson, 147 Pa.Super.Ct. 239, 24 A.2d 468 (1942).

The specific issues before us are whether the standard of care which appellant were under required them to (1) provide adequate and proper life-saving aid to Howard Nemon and (2) to instruct its employees as to the proper measures to be taken in the...