Brahatcek v. Millard School Dist., School Dist. No. 17

• Decision Date: 10 January 1979
• Docket Number: No. 41710,41710
• Citation: 273 N.W.2d 680,202 Neb. 86
• Parties: Darlene BRAHATCEK, Legally Appointed Administratrix of the Estate of David Wayne Brahatcek, Appellee, v. MILLARD SCHOOL DISTRICT, SCHOOL DISTRICT # 17, a Corporate Governmental Body, Appellant.
• Court: Nebraska Supreme Court

Page 680

273 N.W.2d 680

202 Neb. 86

Darlene BRAHATCEK, Legally Appointed Administratrix of the Estate of David Wayne Brahatcek, Appellee, v. MILLARD SCHOOL DISTRICT, SCHOOL DISTRICT # 17, a Corporate Governmental Body, Appellant.

No. 41710.

Supreme Court of Nebraska.

Jan. 10, 1979.

Syllabus by the Court

1. In determining the sufficiency of the evidence to sustain a judgment, it must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in his favor and he is entitled to the benefit of every inference that can reasonably be deduced from the evidence.

2. In an action for negligence, the burden is on the plaintiff to show that there was a negligent act or omission by the defendant and that it was a proximate cause of the plaintiff's injury or a cause which proximately contributed to it.

3. Negligence must be measured against the particular set of facts and circumstances which are present in each case.

4. Negligence is defined as doing something which an ordinary, prudent person would not have done under similar circumstances or failing to do something which an ordinary, prudent person would have done under similar circumstances.

5. Where lack of supervision by an instructor is relied on to impose liability, such lack must appear as the proximate cause of the injury.

6. Inattention to the duty to exercise care in a situation which reasonably may be regarded as hazardous is evidence of negligence, notwithstanding the act or omission involved would not in all cases, or even ordinarily, be productive of injurious consequences.

7. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care.

8. "Proximate cause" as used in the law of negligence is that cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred.

9. Generally, the effect of an intervening negligent act is tested by determining whether it was such as might reasonably have been foreseen as a consequence of the claimed negligence of the original actor.

10. The law does not recognize precision in foreseeing the exact hazard or consequence which happens. It is sufficient if what occurs is one of the kind of consequences which might reasonably be foreseen.

11. Whether or not a minor 14 years of age is of sufficient knowledge, discretion, and appreciation of danger that he may be subject to the defense of contributory negligence is generally a question of fact for the jury.

12. The doing of an act with appreciation of the amount of danger is necessary in order to say as a matter of law a person is negligent.

13. A verdict may be set aside as excessive by the trial court or on appeal when, and not unless, it is so clearly exorbitant as to indicate that it was the result of passion, prejudice, mistake, or some means not apparent in the record, or it is clear that the jury disregarded the evidence or rules of law.

Michael P. Cavel and Lee H. Hamann of The Law Offices of Emil F. Sodoro, P. C., Omaha, for appellant.

John T. Carpenter of Carpenter, Fitzgerald & Coe, P. C., Omaha, for appellee.

Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ., and COLWELL, District Judge.

SPENCER, Chief Judge, Pro Tem.

This is a wrongful death action brought by Darlene Brahatcek as administratrix of the estate of her son, David Wayne Brahatcek, hereinafter called David, against Millard School District No. 17. David died as a result of being accidentally struck in the left occipital region of his skull by a golf club during a physical education class. Trial was had to the court. The District Judge entered judgment in favor of the plaintiff in the amount of $3,570.06 special damages, $50,000 general damages, and costs. Defendant appeals.

Defendant essentially alleges four assignments of error: (1) The insufficiency of the evidence; (2) the failure to find decedent contributorily negligent; (3) the failure to hold the negligence of the classmate who struck decedent was an intervening cause of death; and (4) the award of general damages was excessive. We affirm.

David, who was a ninth grade student 14 years of age, was injured on April 3, 1974, during a physical education class conducted in the gymnasium of Millard Central Junior High School. He was struck by a golf club swung by a fellow student, Mark Kreie. He was rendered unconscious and died 2 days later without regaining consciousness.

Mandatory golf instruction during physical education classes at the school began on Monday, April 1, 1974. Because decedent was absent from school on that day, his first exposure to the program was when his class next met on Wednesday, the day of the accident. Classes on both dates were conducted in the school gymnasium because of inclement weather. Instruction was coeducational. Decedent's class of 34 boys combined with a girls' physical education class having an enrollment of 23. Two teachers, one male and one female, were responsible for providing supervision and instruction. The faculty members present on Monday were Max Kurtz and Vickie Beveridge, at that time Vickie Lindgren.

On Monday, after attendance was taken, the students were gathered around in a semicircle and received instruction on the golf grip, stance, swing, etiquette, and safety. Mr. Kurtz then explained to them the procedure that would be followed in the gym.

With the bleachers folded up, the gym was nearly as wide as it was long. Approximately 12 mats were placed across the width of the gym, in two rows of six each. One row of mats was located in the south half of the gym about even with the free throw line on the basketball court. The other row was placed along the free throw line in the north half of the gym. The mats measured about 2 feet square and were spaced 10 to 12 feet apart. Each row contained approximately six mats. A golf club and three or four plastic "wiffle" balls were placed by each mat.

The students were divided into groups of four or five students and each group was assigned to the use of one of the mats. The boys used the mats on the south side of the gym and hit in a southerly direction. The girls used the mats on the north, and hit the golf balls in a northerly direction. At the start of the class all of the students were to sit along the center line of the basketball court between the two rows of mats. On the signal of one of the instructors one student from each group would go up to the assigned mat, tee up a ball, and wait for the signal to begin. After the student had hit all of the balls on the mat he was to lay the club down and return to the center of the gym. When all of the students were back at the center line, the next student in each group was directed to retrieve the balls and the procedure was repeated.

Mr. Kurtz was not present for class on Wednesday, the day of the accident, because his wife had just given birth to a baby. His place was taken by a student teacher, Tim Haley, who had been at the school for approximately 5 weeks and had assisted with four to six golf classes on Monday and Tuesday. At the beginning of the class on Wednesday, Mrs. Beveridge repeated the instructions which had been given by Mr. Kurtz on Monday. The groups were again divided. One student went up to each mat and Mrs. Beveridge testified she gave the signal for the first balls to be hit.

Plaintiff's decedent, who prior to the date of his death had never had a golf club in his hands, was either the second or third student to go up to the easternmost mat on the boys' side of the gym. He had difficulty and asked his group if anyone could help him. Mark Kreie, who had been the last to use the club, came forward and showed decedent how to grip the club and told him that he (Kreie) would take two practice swings then hit the ball. Decedent moved to the east and stood against the folded up bleachers about 10 feet to the rear of Kreie. Kreie looked over his shoulder to observe decedent before taking two practice swings. He then stepped up to the ball and took a full swing at it. Unaware that decedent had moved closer, he hit decedent with the club on the follow-through. During all of this time, Mr. Haley was helping another boy a few mats away. Mark did not know whether Mr. Haley saw decedent and him standing together at the mat. Mrs. Beveridge was positioned along the west end of the girls' line.

Mark Kreie testified Mrs. Beveridge gave instructions to the students as to the proper use of the clubs. They were also told to remain behind a certain line on the gym floor when they were not up at the mats. He also testified on Wednesday Mrs. Beveridge told them they were to help any of the students who didn't understand. Mrs. Beveridge denied making this statement. The fact that the deceased asked for help of the students might support Kreie's statement.

Mrs. Beveridge testified she was in charge of the entire class on Wednesday but after telling the students when they could hit the ball, she concentrated on the girls. At the time of the accident she was standing on the west side of the gym, between the center line and the row of girls' mats. She testified that had she seen Mr. Haley devoting all of his attention to one boy she would have watched the entire class. She did not instruct Mr. Haley prior to class that he should not spend too much time with one student. Neither did she see the decedent get hit.

Mr. Haley, who was a second semester senior at Wayne State Teachers College, had been student teaching at Millard Central Junior High School for approximately 5 weeks. He testified he told the boys when to start and Mrs. Beveridge told the girls. He testified during the class he walked up and down between...