Brewster v. Rankins, 82A01-9203-CV-63

• Decision Date: 06 October 1992
• Docket Number: No. 82A01-9203-CV-63,82A01-9203-CV-63
• Citation: 600 N.E.2d 154
• Parties: 77 Ed. Law Rep. 907 Robert A. BREWSTER, Betty A. Brewster, and Daniel E. Brewster, Appellants-Plaintiffs, v. Thomas RANKINS, Marie Rankins, Carl Wade, Warrick County School Corporation, and Warrick County Commissioners, 1 Appellees-Defendants.2
• Court: Indiana Appellate Court

Page 154

600 N.E.2d 154

77 Ed. Law Rep. 907

Robert A. BREWSTER, Betty A. Brewster, and Daniel E Brewster, Appellants-Plaintiffs, v. Thomas RANKINS, Marie Rankins, Carl Wade, Warrick County School Corporation, and Warrick County Commissioners, ¹ Appellees-Defendants No. 82A01-9203-CV-63. ²

Court of Appeals of Indiana First District.

Oct. 6, 1992.

Glenn A. Grampp, Evansville, for appellants-plaintiffs.

Stephen Hensleigh Thomas and Douglas V. Jessen, Statham, Johnson & McCray, Evansville, for appellees-defendants.

STATEMENT OF THE CASE

RATLIFF, Judge.

Robert A. Brewster, Betty A. Brewster, and Daniel E. Brewster ("Brewsters") appeal from a grant of summary judgment in their action for negligence damages in favor of Carl Wade ("Teacher") and the Warrick County School Corporation ("School"). We affirm.

ISSUES

We restate the issues on appeal as:

1. Do Teacher and School have a duty to instruct, train, and supervise a fourth-grade student's use of a golf club borrowed from School in the non-school activity of practicing a golf swing after school hours in the student's home to prevent injury to other children present at the student's home?

2. May Teacher and School be liable under a theory of negligent entrustment for permitting a fourth-grade student to borrow a golf club from School to take to his home to use to practice his golf swing where the student has received instruction at School on the safe use of a golf club, has practiced swinging a golf club in classes at School without incident, and is not known to have a propensity to swing golf clubs in a negligent manner?

FACTS

In the spring of 1983, Jason Rankins was a nine year-old fourth-grade student at Elberfeld Elementary School, which is operated by School. As part of the elementary school curriculum, students were allowed to take an optional extra-curricular golf class taught by Teacher. During the classes, Teacher instructed the children regarding the safe use of golf equipment and observed their skills to ensure that they were practicing safely. Jason was enrolled in this course, and had completed most of the course work by May of 1983.

In the last week of the golf class students were allowed to take golf equipment home to practice their skills. Teacher allowed each student to take one golf club home, and stressed that they maintain the same safety rules which they had learned and practiced in the golf class work at school. Record at 361.

On May 23, 1983, Jason brought a golf club home to practice his swing. Jason's mother, Marie, was at home that day, as were her two children and two other children for whom she babysat, Robert and Drew Brewster. Marie knew that Jason had brought the golf club home, and cautioned him to use care in practicing. Record at 579. Marie also helped the children locate a lost golf ball, but then returned to the house. At approximately 4:30 p.m., as she re-entered the house, Marie heard the children scream and ran back outside. Three year-old Robert had been struck in the head by the golf club as Jason practiced his swing.

The Brewsters brought suit against Teacher and School for negligence in failing to instruct, train, and supervise students in the safe use of golf equipment in allowing them to remove the equipment from School. Teacher and School moved for summary judgment, which was granted on November 14, 1991. This appeal ensued. Other relevant facts will be stated in our discussion of the issues.

DISCUSSION AND DECISION

On appeal, we use the same standard as the trial court in evaluating the propriety of summary judgment. Jackson v. Warrum (1990), Ind.App., 535 N.E.2d 1207, 1210. Summary judgment is appropriate only if no material issue of fact exists and the movant is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The movant bears the burden of proving the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed favorably to the non-movant. Jackson, 535 N.E.2d at 1210. Summary judgment will be affirmed on appeal if it is sustainable on any theory or basis found in the record. Wingett v. Teledyne Industries, Inc. (1985), Ind., 479 N.E.2d 51, 54.

Summary judgment should not be used as an abbreviated trial and is rarely appropriate in negligence actions. Jackson, 535 N.E.2d at 1210-1211. However, issues of duty are questions of law for the court; thus, the question of Teacher and School's duties to Robert may have been proper for summary judgment proceedings. See Robinson v. Kinnick (1989), Ind.App., 548 N.E.2d 1167, 1168, trans. denied. The record shows that the facts of the accident are not in dispute; rather, the parties disagree regarding the application of the law to the facts. The core issues are whether, as a matter of law, Teacher and School owed Robert a duty when the accident occurred and whether they negligently entrusted Jason with the golf club. Because no factual dispute exists, the only issues properly disposed of by summary judgment in the case at bar are the duty, if any, owed to Robert, and whether a negligent entrustment occurred. We find that Teacher and School owed Robert no duty when the accident occurred and the Brewsters have not satisfied the elements needed to prove a negligent entrustment, so the trial court properly granted summary judgment in favor of Teacher and School.

Issue One

The Brewsters claim that Teacher and School had a duty to supervise Jason's use of the golf club at his home to prevent injury to other children present at the Rankins's home. We disagree.

To establish negligence, a plaintiff must show: a duty owing from the defendant to the plaintiff; the defendant's failure to conform its conduct to the requisite standard of care required by the relationship; and, injury to the plaintiff proximately caused by such failure. Rubin v. Johnson (1990), Ind.App., 550 N.E.2d 324, 328-329, trans. denied. The Brewsters have failed to meet their threshold burden of showing that Teacher and School owed Robert a duty when the accident occurred.

There is a duty on school authorities to exercise reasonable care and supervision for the safety of the children under their tutelage. Swanson v. Wabash College (1987), Ind.App., 504 N.E.2d 327, 330. However, schools are not intended to be insurers of their students' safety, and they are not strictly liable to them for injuries the students may incur. Id. The appropriate standard is whether school personnel exercised their duty with the level of care that an ordinary prudent person would exercise under the same or similar circumstances. Dibortolo v. Metropolitan School District (1982), Ind.App., 440 N.E.2d 506, 509.

Most Indiana cases dealing with the duties that schools and teachers owe to students involve accidents on school property, unlike in the present case in which Robert was injured in an accident which occurred off of School's property. See e.g., Beckett v. Clinton Prairie School Corp. (1987), Ind., 504 N.E.2d 552 (baseball player collided with another player during practice on school's field; held that participating in school activity under supervision of school personnel effects duty on school personnel to exercise reasonable care and supervision); Norman v. Turkey Run Community School Corp. (1980), 274 Ind. 310, 411 N.E.2d 614 (children injured when they collided on school playground during recess; held that school not liable because running on playground not dangerous or unusual condition, so no duty on teachers to warn of danger); Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701 (children injured during recess at school; held that although duty existed, no control over students established, so no breach of duty); Dibortolo, 440 N.E.2d 506 (students injured at school during physical education class; held that judgment on evidence error because conflicting evidence existed on possible breach of duty by teacher in failing to demonstrate jumping exercise). Here, Robert was injured by a golf club, borrowed from School with Teacher's permission, that Jason was using at his home. We thus find the cases dealing with accidents on school property inapposite. ³

However, one Indiana case addressed a negligence claim regarding a student injury which occurred off of school property. In Swanson, 504 N.E.2d 327, a college student was injured in a recreational baseball practice and the school was not liable for such injuries. Id. at 331. The court reasoned that a number of factors warranted a finding of no duty by the school to the student to prevent this injury. Id. at 331. These factors included: a baseball team member organized the recreational team, which was not sponsored by the school; practices were held and games played in a city park, not on school property; and, there was no professional coaching assistance, supervision, or written guidelines for play. Id. Further, notwithstanding that the student organizing the team told the school of his plans, secured money from a dean to purchase baseballs for practice, and used some of the school's equipment, no duty could be shown. Id. at 328 and 331. Ultimately, we held that a school has no duty to supervise recreational athletic practices off of a school's premises such as those in Swanson. Id. at 331.

We find that our reasoning in Swanson is also applicable here. Like the team practices in Swanson, Jason's practice time at his home was conducted off of School's property using School's equipment, and, although School was aware of Jason's at-home practice time and gave him permission to take a golf club home, no professional coaching assistance, supervision, or written guidelines were given to Jason during his practices in his backyard. We find that these factual similarities warrant a finding of no duty in the circumstances of the case at bar. Teacher and School had no duty to prevent Robert's injury because, like the students in Swanson, Jason was practicing off of School's property, although with School's permission...