Brackman v. Adrian
| Decision Date | 26 February 1971 |
| Citation | 472 S.W.2d 735,63 Tenn.App. 346 |
| Parties | Pamela Marie BRACKMAN, b/n/f and father, William C. Brackman, Plaintiff-Appellee, v. William L. ADRIAN, Bishop, etc., Defendant-Appellant. |
| Court | Tennessee Court of Appeals |
Glasgow, Adams & Taylor, Nashville, for defendant-appellant.
Leslie Mondelli, Charles Patrick Flynn, Nashville, for plaintiff-appellee.
Pamela Marie Brackman, a minor, b/n/f her father, William C. Brackman, sued the defendant, William L. Adrian, as Bishop representing the Roman Catholic Diocese of Nashville, to recover for personal injuries received while a student at St. Henry's School in Nashville, Tennessee, in an accident which occurred on the playground of the school April 6, 1967. At the time of the accident, plaintiff and some classmates were playing softball when she, acting as catcher, was struck in the face by a bat which the batter slung behind her after hitting the ball. Plaintiff who was 14 years old at the time, received injuries which required extensive dental care covering an extended period of time.
The suit was tried in Division III of the Circuit Court of Davidson County before Judge Joe C. Loser, Jr., and a jury, and resulted in a verdict and judgment for plaintiff in the amount of $4,000.00. After a motion for a new trial was overruled, an appeal to this Court was duly perfected and assignments of error filed.
The plaintiff, Pamela Marie Brackman, was born February 21, 1953, and at the time of the accident in question, April 6, 1967, was a student in the 8th grade at St. Henry's School in Nashville, which school is operated by the Roman Catholic Diocese of Nashville of which William L. Adrian was Bishop.
Plaintiff was a member of a class of girls and, on the date in question, was participating in a softball game along with other members of her class as a part of the physical education and recreational program of the school. The grounds on which the game was being played were adjacent to the school building and, at the time in question, the boys in plaintiff's class were playing softball at the other end of the field. Mrs. Kay Conn, a teacher, was generally overseeing the activities of these boys and girls and was near the center of the field between the two games at the time plaintiff was injured.
Basic equipment for playing softball was provided by the school, although some students brought gloves and other personal equipment from home. Such equipment as they used was brought onto the field by the students who chose the items they needed or desired in playing the game.
The teacher did not assign positions of play on the respective teams, but left such matters to the students themselves. On the occasion in question, plaintiff was captain of her team and was playing at the position of catcher behind the one at bat. At the time of plaintiff's injury, Becky Curley, another student, was at bat and after hitting the pitched ball and starting to run toward first base, she released the bat in such manner that it flew back and struck plaintiff in the face causing injury to her mouth and surrounding tissues, breaking some of her teeth and displacing others. She was given first aid at the school and taken to the emergency room at St. Thomas Hospital.
Suit was filed for $15,000.00 damages and the declaration charged in the first count that plaintiff's injuries were the direct and proximate result of improper supervision on the part of defendant's agents, and in the second count that plaintiff's injuries were caused by defendant's failure to provide a catcher's mask to protect her.
The defendant filed a special plea denying negligence in supervision and in failing to provide or require a catcher's mask for plaintiff's use. Said plea further alleged that the act of Becky Curley in throwing the bat was the sole and proximate cause of plaintiff's injuries which was an independent intervening cause and further that plaintiff had assumed the risk of injury in choosing her position in the ball game.
The essential facts are not in dispute. The questions raised by counsel in their briefs and arguments relate chiefly to the application of law to the facts.
Some of the testimony of the plaintiff herself is significant. For instance, she testified on direct examination:
'Q. Now will you tell the jury exactly in your own words, what happened on that day when you left the classroom to go outside to your phys-ed class?
A. I was the captain and we chose up teams and there (sic) was the catcher and she hit the ball and she slung the bat and she was running to first base and I was watching her, and all of a sudden the bat just hit my teeth.
Q. Now where was Mrs. Conn at this time? Do you remember?
A. Previously she had been in the middle of the field talking to Mr. Behan.
Q. Were there other classes out there on the field at that time?
A. Yes, there was a boys' softball game too and it was on the other side of us and they were in the middle, you know, middle of the field.'
Plaintiff testified that she was active in sports, engaging in basketball, diving, swimming and baseball and that up until the time of the accident, she had played baseball a lot.
She was asked on direct examination where she was standing at the time of the accident; that is, how many feet behind the batter she stood, and she answered: 'I can't say how many feet I was behind her because I really don't know.'
She was then asked why she played catcher and she answered: 'Because I was good at it,' and she reiterated in answer to another question that she did not know how far behind the batter she was standing at the time of the accident, that she just knew she was behind her and that her purpose in being there was to catch the ball. When asked if her teacher, Mrs. Conn, told her to play at that position, she answered: 'She didn't tell me anything.'
Again, she was asked about her position at the time of the accident and testified as follows:
'A. I don't know if I was second or first catcher. I just know I was the catcher. It really didn't matter.
Q. Was it possible that there was another catcher in front of you?
A. There could have been.'
She further testified:
'Q. And do you recall what you testified at that time?
A. I think I said I was pretty good at it.
Q. Do you recall saying you were the best coordinated girl there and you were able to throw the ball better than any of the others?
A. I thought I was.'
She testified that she played softball at home. And her father testified that she was very athletic and that she played softball at home and sometimes played the position of catcher without a mask.
At another point, she reiterated that she played basketball, engaged in diving and swimming, and played tennis and that she was skilled in athletics.
A schoolmate of the plaintiff, Rhea Elkin, testified that she saw the accident; that Pam was playing at position of catcher, standing behind the batter at the time, but she did not state how far behind the batter Pam was when she was struck. She saw the batter 'turn loose of the bat' and saw it strike Pam in the mouth. She also testified that, in addition to Pam, there were one or two others who were helping to catch the ball. She further testified that Pam was a good softball player, about the best one on the field, and that there were about 20 or 25 other girls there at the time.
Mrs. Kay Conn, the teacher, testified that on the occasion of the accident, she was standing in the middle of the athletic field so that she could keep an eye on both the girls and the boys who were playing separate games of softball; that another teacher was there with her also observing the play of these children and that she and the other teacher were in something of a supervisory capacity. She said that the school furnished the bats and balls and one or more catcher's masks but the children were not required to wear these masks; that the field on which the children were playing was about the size of a football field. She also testified that Pam was a very athletic girl and excelled not only in softball, but other sports and was a leader on the athletic field.
There is a single assignment of error as follows:
'The Trial Court erred in refusing to grant defendant's motion for a directed verdict made at the conclusion of all the proof on the grounds that the evidence was insufficient to support a verdict against defendant, the plaintiff having failed to prove any negligence on the part of defendant or that any act or omission of defendant, negligent or otherwise, was the proximate cause of the minor plaintiff's injury, and that the minor plaintiff voluntarily assumed the risk that resulted in her injury.'
It is argued that the defendant's teachers were negligent in allowing the plaintiff to take a position behind the batter too close for reasonable safety.
In answer to this, it is urged that there is no proof in the record that places plaintiff at a definite position behind the batter or fixes her distance from the batter. We have examined the record with some care to determine what proof there is on this question. The plaintiff herself was not sure whether she was the first catcher or second catcher at the time; nor could she state how far behind the batter she was at the time the accident occurred. This same thing is true of the other witnesses. So that, we have no definite evidence as to the exact position occupied by the plaintiff at the time the accident occurred other than that she was close enough to be injured.
It is argued that the teacher who was in a supervisory capacity on the playground at the time should have foreseen that the plaintiff might be struck by a bat thrown by the batter and that she should have taken measures to prevent it. It seems to us that this is tantamount to saying that the teacher...
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