Berg v. Merricks

• Decision Date: 18 April 1974
• Docket Number: No. 567,567
• Citation: 318 A.2d 220,20 Md.App. 666
• Parties: Michael Allen BERG et al. v. John M. MERRICKS et al.
• Court: Court of Special Appeals of Maryland

Page 666

20 Md.App. 666

318 A.2d 220

Michael Allen BERG et al. v. John M. MERRICKS et al.

No. 567.

Court of Special Appeals of Maryland.

April 18, 1974.

Certiorari Denied June 20, 1974.

[318 A.2d 223] Edward J. Skeens, Silver Hill, for appellants.

Gilbert A. Hoffman, Baltimore, with whom were Patrick A. O'Doherty and Marvin B. Miller on the brief for appellees John M. Merricks and John V. Hrezo.

Paul M. Nussbaum, Mount Rainier and John R. Barr, Associate County Atty., with whom were Joseph S. Casula, Upper Marlboro and Richard E. Ekstrand, Hyattsville, on the brief for other appellees.

Argued before THOMPSON, DAVIDSON and LOWE, JJ.

LOWE, Judge.

In 1968, Michael Allen Berg (Mickey) was a nineteen year old senior at Crossland Senior High School in Prince George's County, Maryland. On October 8th of that year he fractured his neck while performing on a trampoline during Mickey, together with his mother, instituted suit February 19, 1971 in Prince George's County Circuit Court against his gym teacher, John M. Merricks; the principal of Crossland High, John V. Hrezo; the superintendent of schools, William S. Schmidt; the Board of Education of Prince George's County; the seven members of the Board individually; and Prince George's County for acts of negligence which he alleged caused his accident.

his regular physical education class. He has been a paraplegic since the accident.

On August 23rd, 1971, Judge Robert B. Mathias sustained motions raising preliminary objections submitted by the County and the Board of Education, and the demurrers of the individual Board members. On April 25, 1972, Judge William B. Bowie granted Superintendent Schmidt's motion for summary judgment. The case was tried against the principal and the gym teacher. On July 13, 1973, Judge Bowie granted the motions for a directed verdict of the remaining defendants. We find that all of the results reached below were correct and affirm all judgments.

DIRECTED VERDICTS

Appellants first direct our attention to a statement by the trial judge which suggests that he may have improperly viewed the facts when ruling on Merricks's and Hrezo's motions for a directed verdict. When a question arose as to the propriety of their submitting motions for a directed verdict for the first time at the close of the entire case, the trial judge commented:

'Well, there wasn't any motion made. They don't have to make a motion at the end of the plaintiffs' case, but they did at the end of the entire case. And if they make the motion, obviously the tactic there is-and I am sure Mr. Miller and Mr. Dougherty discussed it-you don't have the same burdens, either, at the end of the entire case.'

The judge then said:

'At the end of the entire case we can consider the The judge's decision on the issue before him was obviously correct, Md.Rule 522 a; however, the additional language he used to explain that decision contains an erroneous conclusion of law. A review of the record gives us no further clue as to his reason for using such unfortunate phraseology. Quite the contrary, the record indicates that he used the proper standard in granting the motions, i. e., resolving all conflicts in the evidence in favor of the plaintiffs and assuming the truth of all credible evidence and of all inferences fairly deducible therefrom which tended to support the plaintiffs' right to recover. Miller v. Michalek, 13 Md.App. 16, 17-18, 281 A.2d 117. If indeed he did not view the evidence in the light most favorable to the plaintiffs as he was bound to do, we have done so and arrive at the same conclusion. ¹

whole thing, and there is no presumption in favor of the plaintiffs' case in that respect.'

Appellants argue that there was sufficient evidence of primary negligence on the part of Coach Merricks and Principal Hrezo to require the court to submit his case to the jury. We do not agree.

Coach Merricks

Appellee Merricks has been a physical education instructor at Crossland Senior High School since 1963. He graduated from the University of Maryland where he 'majored' in physical education. He had at one time participated in intramural trampoline competition and qualified as a finalist. While a student at Maryland, he gave trampoline instructions at Gallaudet College for the Deaf. He taught trampoline at Greenbelt Junior High School for three years and at two elementary schools for two years.

On October 8, 1968, Coach Merricks was teaching his twelfth grade class to perform a 'back pull over' ² on the The class of approximately thirty-eight students was divided in two groups. Each group was assigned to one of two trampolines located twenty-five feet apart. After a round of warm up exercises, Coach Merricks gave instructions for the 'back pull-over' and asked one of the more advanced students to demonstrate it. The students then began to take turns performing the exercise. Those waiting positioned themselves around the two trampolines as 'spotters' to assist any performer who might be projected toward the frame or off the mat. Appellant's expert witness indicated that four was a safe minimum number of 'spotters.' Under the procedure employed by Merricks there were eighteen at each trampoline. A 'spotter' is supposed to break the performer's fall and keep him on the canvas bed, thereby minimizing the possibility of injury. Coach Merricks stood midway between the two trampolines.

                trampoline.  3  Coach Merricks had previously explained the inherent dangers of the trampoline to his class.  He told them that the trampoline 'was a very dangerous piece of equipment, that it could injure you or hurt you or break your neck, that you had to respect it; no horseplay.'
                

Mickey Berg took his place on the trampoline. John Duke, one of the students present, testified on behalf of the plaintiffs that Mickey 'bounced once or twice on the trampoline and went back over without a seat drop.' David Bender, another student, and also plaintiffs' witness, said that Mickey's stunt appeared normal until he came down, 'then he twisted his body around a little bit and landed on a slant.' The third student witness, Ralph Thompson, testified that Mickey 'jumped back a little, without doing a seat drop Appellants submit that Coach Merricks failed to exercise due care for Mickey's safety in 1) failing to watch him as he performed 2) requiring the class of hurry 3) neglecting to stand on the frame of the trampoline level with the performer ready to break his fall by hand 4) instructing the students that they were to land on their stomachs 5) ignoring the confusion among the students 6) failing to take account of the individual abilities of his students 7) teaching trampoline without adequate background or expertise. Each of these assignments of error is an after the fact substitution of judgment for the instructional methods used. Appellants bear the burden of proving that one or more violated a standard recognized in the teaching of high school gymnastics or a procedure mandated by proper authority.

and came down on his shoulders.' Coach Merricks testified that he did not see Mickey's attempt. Mickey related, 'I got in the take off position and I believe I started up on my toes and the fall back, and from there I do not remember.' ⁴

The substance of appellants' initial question has been decided by the Court of Appeals. Beyond that, even the record fails to support their assertion. Appellants' expert, Norman R. Holzaepfel, the varsity gymnastic coach at the University of Iowa, testified that an instructor of a class of forty twelfth grade boys using two trampolines should stand at some distance from the trampolines so that he could observe both groups at the same time. Neither this nor anything else in the record indicates that Mickey Berg's tragic accident could have been avoided even if Coach Merricks had kept his eyes riveted on him.

The Court of Appeals in Segerman v. Jones, 256 Md. 109, 259 A.2d 794, ruled that a teacher who left the classroom while young children were doing push-ups and other fitness exercises was not liable for an injury sustained by one of the children during her absence. The Court said that it had not been shown that her presence could have prevented the accident.

The injury could just as well have occurred while she was in the classroom. The Court found that the proximate cause of the injury was the intervening and fully unforeseeable action of another pupil who left his place and did not do the exercise as instructed.

The evidence in this case indicates that Mickey Berg's injury was caused by his failure to follow Coach Merricks' instructions. There was uncontradicted evidence that Mickey did not do a 'seat drop' at the start of the exercise but instead jumped back (apparently attempting an aerial back flip) landing on his shoulders. Berg's precipitous action was wholly unforeseeable.

The remaining acts or omissions by Coach Merricks, which appellants contend caused Mickey's fall, fail to establish primary negligence for the same reason.

There was evidence that Mickey began his exercise just a few minutes before the end of the class period and that the coach had told the students to hurry along so they could take showers. There was no testimony, however, by Mickey Berg, or any other witness, that he felt rushed, or was anxious or concerned by the time.

Appellants claimed that Coach Merricks should have used the trampoline frame, a desk pushed under the trampoline, or a new, recently advertised instructional pad as a platform so that he could have been nearer the students as they performed. Coach Holzaepfel did not aver that these devices were generally used, that they were required for proper instruction or that they should be used in teaching a 'back pullover.' Coach Merricks testified that the student spotters surrounding the trampoline provided adequate protection for anyone doing the exercise. He felt it necessary for an instructor to get on a trampoline only...