Contreras By and Through Contreras v. Carbon County School Dist. No. 1

• Decision Date: 10 December 1992
• Docket Number: No. 91-251,91-251
• Citation: 843 P.2d 589
• Parties: 79 Ed. Law Rep. 1101 James CONTRERAS, a minor child, By and Through his next friend and mother, Brenda CONTRERAS; Brenda Contreras; and Odorico Contreras, Appellants (Plaintiffs), v. CARBON COUNTY SCHOOL DISTRICT # 1; Belinda Wells; Kathleen Shamion; and Robert V. Johnson, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 589

843 P.2d 589

79 Ed. Law Rep. 1101

James CONTRERAS, a minor child, By and Through his next friend and mother, Brenda CONTRERAS; Brenda Contreras; and Odorico Contreras, Appellants (Plaintiffs), v. CARBON COUNTY SCHOOL DISTRICT # 1; Belinda Wells; Kathleen Shamion; and Robert V. Johnson, Appellees (Defendants).

No. 91-251.

Supreme Court of Wyoming.

Dec. 10, 1992.

Cary R. Alburn, III, Laramie, for appellants.

Cameron S. Walker (argued), and Judith A. Studer of Schwartz, Bon, McCrary & Walker, for appellees.

Before MACY, C.J., and THOMAS, CARDINE and URBIGKIT ^*, JJ., and RAPER, J. Ret.

CARDINE, Justice.

This case involves a claim for damages resulting from personal injury caused by a playground accident at Pershing Elementary School. Appellants James Contreras, Brenda Contreras and Odorico Contreras appeal the order granting judgment on a jury verdict for defendants-appellees, and denying their motion for a new trial. At issue is whether the trial court properly granted partial summary judgment on appellants' negligent infliction of emotional distress claim, and whether certain photographs offered by appellants were properly excluded by an order in limine.

We affirm.

Appellants state the issues as follows:

A. The District Court should have declined to hear Appellees' Motion for Partial Summary Judgment or, having consented to hear it, should have denied it.

B. The District Court should have declined to hear Appellees' Motion in Limine, to the extent that it constituted a dispositive Motion or, having consented to hear it, should have denied it.

C. It was error not to grant Appellants' Motion for New Trial.

Appellees provide the following, additional issues for our review:

1. Have appellants made sufficient offers of proof to preserve contended evidentiary errors on appeal?

2. Does this Court have jurisdiction to consider the appeal of Brenda Contreras from the Summary Judgment dismissing her emotional distress claim when she has never appealed from that Summary Judgment?

3. Since the evidentiary issues raised on appeal pertain exclusively to the condition of the school premises, should Judgment in favor of appellees Wells and Shamion (who had no involvement in design or maintenance of the playground) be summarily affirmed?

In their reply brief, appellants concede appellees' third issue. Therefore, the judgment in favor of appellees Wells and Shamion is summarily affirmed.

January 25, 1989, was a cold, blustery day in Rawlins, Wyoming. The weather that morning did not keep about 150 to 200 children from gathering, as they often did, outside Pershing Elementary School to play in the school playground before school began. The children were supervised by two school employees, appellees Belinda Wells and Kathleen Shamion.

The playground at Pershing Elementary was divided into two segments. The west end, with swings and other playground equipment, was where the little children played together. The east, or "high activity" end, was where the older children played. This segregation of the playground was established mostly by convention and the tendency of children to play with those their own age. There was no physical barrier of any sort between the high-activity area and the area to the west of it where the younger children played, although the playground supervisors did try to keep the younger children out of the high-activity area.

In the high-activity area there was a football field marked out in white lines. On the morning in question, several fifth-grade boys were playing their daily game of football on the field. They had been instructed to keep within the white lines. One of the boys, Chuck Juare, was running backwards to catch a pass when he collided with appellant James Contreras. James was then seven years old and in the first grade. James was knocked off his feet, and Chuck fell on top of him. Another fifth-grade boy, Nick Armijo, was shadowing Chuck in the game. After Chuck fell, Nick tripped over Chuck and James and fell on top of them.

Mrs. Wells, Mrs. Shamion, and the school principal, Robert Johnson, soon arrived at the spot where James Contreras lie crying and in pain. James repeatedly told Johnson that his leg hurt. After ascertaining that the child had no back, neck or head injuries, Johnson decided to take him indoors because of the cold. He carried James about 200 feet, first into the school building and then into the school office. Johnson placed James on a nurse's cot in the office.

Mr. Johnson's secretary called James' mother, appellant Brenda Contreras, to inform her that her son had been hurt. Mrs. Contreras drove quickly to the school. When she got out of her car in front of the school building, she could hear her son crying. She followed the sound of crying to the office, where she discovered her son lying on the cot in intense pain. His crying disturbed her so much that soon she too was crying. Mr. Johnson asked Mrs. Contreras whether she wanted an ambulance called. She said that she did.

When the paramedics arrived, they cut the leg off James' jeans to observe his injuries. They discovered that James had an inverted right femur, which is a very painful fracture of the longest bone in the human body. The femur in James' leg was visibly twisted toward the other leg. Mrs. Contreras was told that her son's leg was broken. James was taken to the hospital in an ambulance, where he was fitted with a body cast which he wore subsequently for two and one-half months.

James, his mother and his father all filed suit against Carbon County School District No. 1, Mrs. Wells, Mrs. Shamion, Robert Johnson, Chuck Juare and Nick Armijo. In addition to claims for medical expenses, home health care provided, and compensation for James' pain and suffering, Brenda Contreras requested in the complaint damages for the emotional distress she incurred at seeing her son in severe pain and worrying that he might be permanently deformed by the injury. The trial court entered judgment against Mrs. Contreras on her emotional distress claim. Nick Armijo was never served with process, and the claim against Chuck Juare was dismissed after he reached a settlement with the plaintiffs. The remainder of the claims were allowed to go to the jury. After trial, the jury returned a verdict in favor of the defendants on all claims.

Appellants subsequently moved for a new trial, on the grounds that they had wrongfully been prevented from presenting photographs and other evidence depicting the playgrounds and supervision provided at other schools in Carbon County School District No. 1. The trial court had excluded both photographs and testimony by the principals on these subjects as irrelevant. After a hearing, the trial court denied appellants' motion for a new trial. Appellants took timely appeal from the court's order.

In their first issue, appellants bring both procedural and substantive challenges to the trial court's order of partial summary judgment which disposed of Brenda Contreras' claim of negligent infliction of emotional distress. First, appellants claim that the trial court should have refused to hear the motion for summary judgment because it was filed after the deadline provided by the court for dispositive motions and also fewer than ten days before the hearing. See W.R.C.P. 56(c). Second, appellants challenge the trial court's finding that an emotional distress claim is precluded by our decision in Gates v. Richardson, 719 P.2d 193 (Wyo.1986).

The trial court's scheduling order required all dispositive motions to be filed by May 10, 1991; it set a hearing on these motions for June 13, 1991. Appellees mailed a copy of their motion for partial summary judgment to defendants on May 31, 1991, and filed it with the court on June 3, 1991. Appellants moved to strike the motion as untimely because it was not filed within the deadline for dispositive motions, or alternatively, to deny the motion on substantive grounds.

Appellees' motion was filed after the deadline provided for dispositive motions in the pretrial order. The trial court proceeded to hear the motion and rule on it, over appellants' objection. Appellants now argue that the trial court was bound by its pretrial order.

We have stated that a trial court has discretion to waive the requirements contained in its pretrial orders. Oukrop v. Wasserburger, 755 P.2d 233, 236-38 (Wyo.1988); Caldwell v. Yamaha Motor Co., Ltd., 648 P.2d 519, 527 (Wyo.1982); Ford Motor Co. v. Kuhbacher, 518 P.2d 1255, 1260 (Wyo.1974). We will not overturn the trial court's ruling excusing a failure to observe its pretrial order unless there has been an abuse of discretion. Kuhbacher, 518 P.2d at 1260. We hold that there was no abuse of discretion in this instance. The trial court could choose to hear, in the interest of judicial economy, an untimely dispositive motion. While it is a better practice for the court to adhere to its scheduling orders, we cannot say that appellants were unfairly prejudiced or that a manifest injustice was committed by the trial court's consideration of appellees' motion for partial summary judgment. Kuhbacher, 518 P.2d at 1260.

More serious is the question of notice with respect to the motion. Appellees mailed a copy of their motion to appellants on May 31, 1991. The hearing was held on June 10. Wyoming Rule of Civil Procedure 56(c), in effect at the time of the hearing required that a motion for summary judgment be served at least 10 days before the hearing. Rule 6(a) provided that

the day of the act, event, or default from which the designated period of time begins to run shall not be included.

Appellants now argue that if the date of service is not included as one of the computational days, service was actually due eleven days before June 10, 1991, or on May 30, 1991. If appellants' calculations are correct, appellees were one day late in serving their motion. Appellants urge us to remand for trial on Mrs....