Dibortolo v. Metropolitan School Dist. of Washington Tp.

• Decision Date: 07 October 1982
• Docket Number: No. 2-781A229,2-781A229
• Parties: 6 Ed. Law Rep. 1060 Mary Ann DIBORTOLO, Appellant (Plaintiff Below), v. METROPOLITAN SCHOOL DISTRICT OF WASHINGTON TOWNSHIP, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 506

440 N.E.2d 506

6 Ed. Law Rep. 1060

Mary Ann DIBORTOLO, Appellant (Plaintiff Below), v. METROPOLITAN SCHOOL DISTRICT OF WASHINGTON TOWNSHIP Appellee (Defendant Below).

No. 2-781A229.

Court of Appeals of Indiana Second District.

Oct. 7, 1982.

Mark C. Ladendorf, Mitchell, Yosha & Hurst, Indianapolis, for appellant.

Joseph M. Dietz, Rocap, Rocap, Reese & Young, Indianapolis, for appellee.

SULLIVAN, Judge.

Plaintiff, Mary Ann Dibortolo, brought a negligence suit against defendant, Metropolitan School District of Washington Township, for injuries which she sustained during a physical education class taught by the school's physical education teacher. At the conclusion of the plaintiff's case, and upon defendant's motion, the trial court entered judgment on the evidence pursuant to Ind.Rules of Procedure, Trial Rule 50(A)(1). Plaintiff appeals.

We reverse.

In reviewing the trial court's action, we adhere to the standard that judgment on the evidence is proper only where there is a lack of evidence of probative value upon one or more of the factual issues necessary to support a verdict, and no reasonable inference in favor of the plaintiff can be drawn from this evidence. Miller v. Griesel (1974) 261 Ind. 604, 308 N.E.2d 701, 707; Walters v. Kellam & Foley (2d Dist. 1977) 172 Ind.App. 207, 360 N.E.2d 199, 205. The evidence must be viewed in the light most favorable to the non-moving party, and if there is any evidence of probative value or reasonable inference therefrom which supports the plaintiff's claim, or if the evidence conflicts such that reasonable minds might draw differing conclusions, judgment on the evidence is inappropriate. Only where the evidence is without conflict and susceptible to one inference in favor of the moving party should judgment on the evidence be rendered. P-M Gas & Wash Co., Inc. v. Smith (2d Dist. 1978) Ind.App., 383 N.E.2d 357, 359; Mamula v. Ford Motor Co. (1971) 150 Ind.App. 179, 275 N.E.2d 849, 852.

It is in accordance with this standard that we examine the evidence. On March 15, 1977, Mary Ann Dibortolo was 11 years of age and a 6th grade student at John Strange Elementary School. On that day, she broke a permanent front tooth during a regularly-scheduled physical education class taught by the school's instructor, Mrs. Dorothy Merriman. Approximately half the class of about 25-30 students including the plaintiff were required to perform an exercise known as the vertical jump.

According to plaintiff's expert witness, Joanne Gassert, the safe and proper way to perform this exercise is to first stand with the body parallel and the shoulders perpendicular to the wall, and with an arm upraised, to crouch momentarily, then to jump and reach the highest possible point on the wall. Throughout her 24 years' experience as a physical education teacher, she has never permitted her students to run toward the wall in performing the vertical jump. It was her opinion that to instruct students to run or to even take a "leap step" toward the wall is to subject them to an unreasonable risk of harm. Mrs. Gassert believed that to allow such activity is to transform this relatively safe exercise into an "inherently dangerous" one.

Mrs. Dorothy Merriman, a physical education teacher since 1955, testified that she did not consult any textbooks in preparation for this exercise; however, she considered "safety aspects." According to Mrs. Merriman, she demonstrated the exercise to the students before allowing them to perform it, she had not used a floor mat placed perpendicularly to the wall, and she had not instructed the students to run toward the wall. She admitted, however, that they were taking 2 or 3 "quick steps" in the direction of the wall.

In conflict with her testimony was that of the plaintiff and three other witnesses. Stephanie Schneider, Jeff Sheets, and Stacey Occolowitz were in the same class with the plaintiff and were also participants in that day's activities. They performed the exercises ahead of the plaintiff and saw the plaintiff's mouth hit the concrete wall. They further testified that the plaintiff did not fall or stumble at any point before the impact. It was adduced that the plaintiff and these three students had never performed the vertical jump before that day, and that Mrs. Merriman neither demonstrated the exercise nor warned the class about any dangers associated with the exercise. The plaintiff introduced evidence which showed that Mrs. Merriman explicitly instructed her pupils to run toward the wall to improve their performance. The record reveals that the majority of the students first stood about 6-8 feet away and then ran toward the wall before executing the vertical jump. In addition, there was testimony that the students were running on a mat placed in a position perpendicular to the wall.

Before we can address the issue whether the plaintiff's evidence was sufficient to overcome a judgment on the evidence, we shall first delineate the elements of this tort and the pertinent questions of law which the trial court must decide as a prerequisite to submitting the case to the jury. Under Indiana law, negligence is comprised of three elements: (1) a duty on the part of defendant in relation to the plaintiff; (2) failure of the defendant to conform his conduct to the standard of care necessitated by the relationship; and (3) the injury which the plaintiff suffered as a result of this failure. Miller v. Griesel, supra, 308 N.E.2d at 706.

There are three questions of law regarding these elements which the court must decide before it may submit the case to the jury. Miller, supra. The initial question is whether the law imposes a duty upon the defendant to conform his conduct to a certain standard for the plaintiff's benefit:

"The duty to exercise care for the safety of another arises as a matter of law out of some relation existing between the parties, and it is the province of the court to determine whether such a relation gives rise to such duty." Neal v. Home Builders (1953) 232 Ind. 160, 111 N.E.2d 280, 285.

In this case, the relationship between the parties is one of pupil and defendant's school personnel. The relationship of school pupils and school authorities invokes the well-recognized duty in tort law that persons entrusted with children, or others whose characteristics make it likely that they may do somewhat unreasonable things, have a responsibility recognized by the common law to supervise their charges. Norman v. Turkey Run Community School Corp. (1980) Ind., 411 N.E.2d 614, 616. Thus, our Supreme Court has imposed a duty upon school authorities to exercise reasonable care and supervision for the safety of the children under their tutelage. Miller v. Griesel, supra, 308 N.E.2d at 706. Whether or not the trial court determined that such a duty existed here is not clearly discernible from the record. However, the prevailing authority compels the conclusion that Mrs. Merriman had a duty to conform her conduct as a physical education teacher to a certain standard, not only for plaintiff's, but also for the other pupils' benefit.

The second question within the trial court's purview concerns the applicable standard of care. Although our Supreme Court in Miller v. Griesel, supra noted that schools are not intended to be insurers of the safety of their pupils, nor are strictly liable for any injuries that may occur to them, the Court nonetheless held that the appropriate standard is whether a defendant exercised his duty with the level of care that an ordinary prudent person would under the same or similar circumstances. Accord, Pierce v. Horvath (1968) 142 Ind.App. 278, 233 N.E.2d 811, 815.

We turn next to the third question of law which asks whether the evidence introduced by the plaintiff was sufficient to permit the jury to find that the plaintiff has established the elements of the cause of action. Norman v. Turkey Run Community School Corp., supra, 411 N.E.2d at 617.

Because a judgment on the evidence effectively deprives the plaintiff of a jury decision, care should be taken in ascertaining whether the evidence supports a reasonable inference in her favor. See Mamula v. Ford Motor Co., supra, 275 N.E.2d at 852. The rule has been stated that unless there is a total absence of evidence or reasonable inference on at least one essential element of a plaintiff's case, a court should not enter judgment on the evidence for the defendant. Mamula, supra, 275 N.E.2d at 851. Viewing the evidence in the light most favorable to the plaintiff, there was sufficient evidence from which the jury could have reasonably inferred that the defendant's employee, Mrs. Merriman, was negligent in discharging her duty to exercise reasonable care for the safety of the students who were under her control by improperly instructing them to run toward the wall in executing the vertical jump, and thereby subjecting them to an unreasonable risk of harm. ¹

The plaintiff produced evidence which indicated that Mrs. Merriman did not demonstrate the exercise before she allowed the students to perform it. The plaintiff also introduced...