Bush v. Smith

• Citation: 289 N.E.2d 800,154 Ind.App. 382
• Decision Date: 07 December 1972
• Docket Number: No. 2--672A17,2--672A17
• Parties: Anita BUSH, b/n/f A. B. Bush, Plaintiff-Appellant, v. Ralph Bernard SMITH and Th Board of School Commissioners of the City of Indianapolis, Defendants-Appellees.
• Court: Court of Appeals of Indiana

Page 800

289 N.E.2d 800

154 Ind.App. 382

Anita BUSH, b/n/f A. B. Bush, Plaintiff-Appellant, v. Ralph Bernard SMITH and Th Board of School Commissioners of

the City of Indianapolis, Defendants-Appellees.

No. 2--672A17.

Court of Appeals of Indiana, First District.

Dec. 7, 1972.

Rehearing Denied Jan. 9, 1973.

Alex L. Rogers, of Steers, Klee, Sullivan & LeMay, Indianapolis, for plaintiff-appellant.

James J. Stewart and Harold E. Atherly, of Stewart, Irwin, Gillion, Fuller & Meyer, Indianapolis, for defendants-appellees.

LYBROOK, Judge.

This appeal arises from a summary judgment granted defendant Ralph Bernard Smith and The Board of School Commissioners of the City of Indianapolis, (School) in a negligence action brought by Anita Bush, b/n/f A. B. Bush (Bush).

Bush filed the action against defendants-appellees and one Raymond Murray. The cause is still pending against Murray.

Bush, age 12, sought recovery for injury to her left eye, sustained when Murray, age 13, threw a bamboo high-jump crossbar, striking the plaintiff. Both Bush and Murray were students at School No. 47 where defendant-appellee Ralph Bernard Smith was the gym teacher.

In ruling upon the School's motion for summary judgment, the trial court made the following undisputed findings of fact which succinctly describe the incident:

'1. The plaintiff, ANITA BUSH, was injured on Friday, April 26, 1968, when she was struck in the left eye by the end of a pole used as a cross-bar with high-jumping standards. The injury occurred on the grounds of Indianapolis Public School No. 47, located in Marion County, Indiana. The injury occurred after school hours, between 4:30 and 5:00 P.M.'

'8. During school hours on Friday, April 26, 1968, the defendant, RAYMOND MURRAY, requested and received permission from the defendant, PALPH BERNARD SMITH, to borrow certain high-jumping equipment, consisting of two standards and a bamboo cross-bar, for the weekend. The defendant, RAYMOND MURRAY, did not specify when and where he intended to use the equipment, and the permission granted by the defendant, RALPH BERNARD SMITH, did not restrict the location of its use or the time it could be used during the weekend. The equipment was to be returned to the defendant, RALPH BERNARD SMITH, on the following Monday morning.'

'11. At the close of school hours on April 26, 1968, the plaintiff, ANITA BUSH, went to her home, changed her clothes, and went to the home of Sandra Murray, the sister of the defendant, RAYMOND MURRAY. The plaintiff, ANITA BUSH, and Sandra Murray then returned to the grounds of Indianapolis Public School No. 47 where they engaged in bicycle riding and watched the defendant, RAYMOND MURRAY, and his three companions high-jumping.

'12. After an attempting jump by the defendant, RAYMOND MURRAY, which resulted in the cross-bar being knocked to the ground, Sandra Murray laughed at him. The Defendant, RAYMOND MURRAY, then suddenly and without warning threw the cross-bar at his sister, Sandra Murray. The cross-bar missed Sandra Murray and struck the plaintiff, ANITA BUSH, in the left eye. By his own admission, the defendant, RAYMOND MURRAY, threw the cross-bar in anger.

'13. At the time of the injury, the defendant, RAYMOND MURRAY, and his companions were utilizing the high-jumping equipment for their personal practice, recreation and physical training but not as a part of any regular organized or supervised school function or activity.'

Based upon these findings of fact, the trial court entered the following conclusions of law:

'3. There is no genuine issue as to any material fact.

'4. The defendants, RALPH BERNARD SMITH and THE BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF INDIANAPOLIS, were under no duty to the plaintiff, ANITA BUSH, under the circumstances of this case to supervise the individual activity of the defendant, RAYMOND MURRAY and his companions in the use of the equipment involved.'

'6. The sole proximate cause of the injury to the plaintiff was the independent, intervening, intentional act of the defendant, RAYMOND MURRAY.

'7. On the facts shown, there was no negligence on the part of the defendants, RALPH BERNARD SMITH and THE BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF INDIANAPOLIS.

'8. On the facts shown, the defendant, RALPH BERNARD SMITH and THE BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF INDIANAPOLIS, are entitled to judgment as a matter of law.'

The court then entered the following judgment:

'IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:

a. That judgment is hereby entered for the defendants, RALPH BERNARD SMITH and THE BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF INDIANAPOLIS, and against the plaintiff, ANITA BUSH by her next friend, A. B. BUSH.'

The primary question presented by this appeal is whether the trial court erred in finding, as a matter of law, that there was no duty owed by the School to Bush.

Bush maintains that the high-jumping equipment was a 'potentially dangerous instrument', the loaning of which gave rise to a duty on the part of the school to supervise its use.

In Neal, Admr. v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280, 111 N.E.2d 713, the Supreme Court defined 'inherently dangerous' as meaning:

'. . . that danger is contained in and is an inherent part of the constitution of the instrumentality or condition itself, at all times, in such a manner as to require special precautions to prevent injury, not simply danger arising from mere casual or collateral negligence of others. Brown v. City...