Connett v. Fremont County School Dist. No. 6, Fremont County

• Citation: 581 P.2d 1097
• Decision Date: 11 July 1978
• Docket Number: No. 4892,4892
• Parties: John Forrest CONNETT, a minor, by and through his guardian, Wilbur G. Connett, and Wilbur G. Connett and Peggy Ann Connett, Individually, Appellants (Plaintiffs below), v. FREMONT COUNTY SCHOOL DISTRICT NO. 6, FREMONT COUNTY, Wyoming, Appellee(Defendant below).
• Court: Wyoming Supreme Court

Page 1097

581 P.2d 1097

John Forrest CONNETT, a minor, by and through his guardian, Wilbur G. Connett, and Wilbur G. Connett and Peggy Ann Connett, Individually, Appellants (Plaintiffs below), v. FREMONT COUNTY SCHOOL DISTRICT NO. 6, FREMONT COUNTY, Wyoming, Appellee(Defendant below).

No. 4892.

Supreme Court of Wyoming.

July 11, 1978.

H. Rick Hollon, of Hamilton & Hursh, P. C., Riverton, for appellants.

Daniel P. Svilar, of Boyer & Svilar, Lander, and Bard Ferrall, Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

NATURE OF THE ACTION

John Forrest Connett, a minor, through his Guardian, Wilbur G. Connett, and Wilbur G. Connett and Peggy Ann Connett, his parents, individually, bring this action in tort against Fremont County School District No. 6, Fremont County, Wyoming. The plaintiffs charge that Mr. Blankenship, an instructor-employee of the defendant, was negligent in failing to adequately instruct and supervise John Forrest Connett concerning the proper use of chemicals in the school laboratory, in consequence of which he suffered injury.

The defendant filed a motion for summary judgment, which was granted by the district court. We will reverse.

FACTS

This action comes on because of an alcohol-can explosion which injured, through burning, John Forrest Connett, 14 years of age. The mishap occurred on January 22, 1975, in a study-hall class chemical laboratory at the Wind River Middle School, School District No. 6, at Pavillion, in Fremont County, Wyoming. There were four other students in the class, all of whom were under the supervision of Mr. Blankenship. When the incident took place, three of the students and Blankenship were in a room adjoining the laboratory where they were engaged in a clean-up project, while one other student was in the laboratory with Connett. When the class started, Connett was working with "geo-blocks" and Mike Degner, the other boy in the laboratory, was working on a chemistry project. Degner's experiment had to do with determining the boiling point of solutions of sugar and water and salt and water by heating with alcohol burners. Geo-blocks are oddly shaped pieces of wood varying in size and shape which are placed together by students who undertake to see how high they can be stacked. After working with the geo-blocks for an undetermined length of time, Connett joined Degner at the latter's table where the chemistry exercise was under way.

Connett discussed Degner's experiment with him and then decided that he would undertake to determine if the boiling point of the mixtures would change when alcohol was added to them. Degner asked Connett not to do this because he did not want his experiment disturbed. Nevertheless, Connett obtained an alcohol can which had been left in a nearby sink by Blankenship and which he had used before class to fill the burners that Degner needed for his study-hall project. After filling the alcohol burners, Mr. Blankenship left the can in the sink about four feet from the experiment table. He testified that it must have been his intention to again use the alcohol during the upcoming class period. Connett had not asked for nor been given permission either to use the alcohol or to interfere with Degner's experiment. Even so, he poured the alcohol into one of the beakers of solution without mishap, and then, as he was pouring the alcohol into the other, fire broke out and the vessel containing the alcohol exploded. Upon hearing the explosion, Blankenship ran from the adjoining room into the laboratory where he used a blanket to put out the fire which had engulfed the boy in flame.

ISSUE ON APPEAL

The issue assigned to our consideration for appellate purpose is:

Whether the court erred in granting summary judgment and thereby holding that there was no issue of material fact on the question of the instructor's alleged negligence in failing to properly instruct and supervise ¹ John Forrest Connett in his use of the alcohol and burner in the school laboratory at the time and place with which we are here concerned.

The summary-judgment issue : ²

We have recently said of summary judgments in Timmons v. Reed, Wyo., 569 P.2d 112, 115-116:

"Upon reviewing the record on appeal from the granting of a summary judgment,

" '. . . we have exactly the same duty as the trial judge and, assuming the record is complete, we have exactly the same material and information in front of us as he did . . . .' Seay v. Vialpando and Anderson, Wyo., 567 P.2d 285, 287; Hunter v. Farmers Insurance Group, Wyo., 554 P.2d 1239, 1244, and Knudson v. Hilzer, Wyo., 551 P.2d 680, 685.

We inquire from the viewpoint most favorable to the party opposing the motion. Seay v. Vialpando, supra; Tri-State Oil Tool Industries, Inc. v. EMC Energies, Wyo., 561 P.2d 714, 717; Shrum v. Zeltwanger, Wyo., 559 P.2d 1384, 1387; Bluejacket v. Carney, Wyo., 550 P.2d 494, 497. The moving party in a summary judgment proceeding has the burden of showing the absence of a genuine issue of material fact. Mealey v. City of Laramie, Wyo., 472 P.2d 787, 792; Kover v. Hufsmith, Wyo., 496 P.2d 908, 910, and Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350, 1352. When there are genuine issues of material fact, the summary judgment should not be granted. Knudson v. Hilzer, supra, and Johnson v. Soulis, Wyo., 542 P.2d 867, 871-872. This is particularly true in negligence cases, where the question of negligence is usually one of fact for the jury to determine, if the evidence respecting such negligence is in conflict. Summary judgments are not commonly interposed and even less frequently granted in negligence actions because issues of negligence do not often lend themselves to summary adjudication. Gilliland v. Steinhoefel, supra, and Forbes Company v. MacNeel, Wyo., 382 P.2d 56, 57. . . . " (Footnote omitted)

We have a further summary-judgment consideration not heretofore contemplated by the decisions of this court, namely, that this is a comparative-negligence case, as provided for in § 1-1-109, W.S.1977. ³ The comparison of causal negligence under such a statute, is peculiarly a jury function, and only in rare cases is it permissible for a court to hold that a plaintiff's conduct reflects at least 50 percent of the negligence. Cirillo v. City of Milwaukee, 34 Wis.2d 705, 150 N.W.2d 460, 465. The Wisconsin Supreme Court, in reversing the grant of a summary judgment under circumstances akin to those herein, stated:

"Summary judgment is a poor device for deciding questions of comparative negligence. What is contemplated by our comparative negligence statute, sec. 895.045, is that the totality of the causal negligence present in the case will be examined to determine the contribution each party has made to that whole. It is the 'respective contributions to the result' which determine who is most negligent, and by how much. A comparison, of course, assumes the things to be compared are known, and can be placed on the scales. . . ." (Footnote omitted) 150 N.W.2d, at 466.

See, generally, Heft and Heft, Comparative Negligence Manual, § 5.130 (1971). This is not to say, of course, that a court may never summarily make the apportionment necessary in a comparative-negligence situation.

In order to determine whether there is, for summary-judgment purposes, an issue of material fact presented by the record on appeal, we must seek our answer within the confines of the above-cited rules. In pursuit of this inquiry, we will examine the material facts ⁴ most favorable to the appellants. ⁵

SUPERVISION (INCLUDING INSTRUCTION)

The evidence concerning the issue of instruction, viewed most favorably from appellants' point of view, may be summarized as follows:

Connett could not recall Blankenship giving him any instructions at any time relative to the use of alcohol around fire, and neither could Blankenship. There is no evidence of instruction on the explosive propensity of the can itself, attendant upon the pouring of the fluid from the vessel in close proximity to a flame. Tim Ditton, one of the students in the class, recalled that Blankenship gave a safety lecture at the first of the school year having reference to the inflammatory effects of alcohol, but the record reveals that Connett was not a member of the class at the commencement of the year. According to Ditton's memory, Blankenship had given no safety instructions on the day in question, and this was consistent with the testimony of Connett and Blankenship.

When the period started, Connett was going to work with geo-blocks and Degner was to do the experiments to determine the boiling points of solutions. Blankenship was in charge of this class and knew the boys of this age required maximum supervision. Blankenship was in the room adjoining the laboratory from the beginning of the period until the explosion occurred, although he may have been in the laboratory once where Connett and Degner were working. According to Ditton, Mr. Blankenship was at the moment of the explosion standing in the adjoining room where he could not have viewed Degner's work-table area. Once in awhile Ditton went to the doorway between the rooms to see what Degner was doing, but he was back in the clean-up room most of the time. Blankenship admits that no matter what his surveillance actually was he never did see Connett at Degner's table and he did not hear a conversation between Connett and Degner which took place at Degner's table, even though Ditton, who was working close to Blankenship in the next room, did hear it. The record reveals that Blankenship had some hearing difficulties. Blankenship was in the storage room with the other boys for 20 to 30 minutes and there is testimony that neither he nor anyone else undertook to supervise Degner's experiment.

The instructor, Blankenship, testified that he was working in a position in the adjoining room which permitted him to see Degner and he had him under constant watch. This...