Driscol v. Delphi Community School Corp.

• Decision Date: 29 December 1972
• Docket Number: No. 1271A277,1271A277
• Citation: 155 Ind.App. 56,290 N.E.2d 769
• Parties: Denise DRISCOL, by her next friend, Richard Driscol, and Richard Driscol, Individually, Appellants, v. DELPHI COMMUNITY SCHOOL CORP., Joyce Ghere, Appellees.
• Court: Indiana Appellate Court

Page 769

290 N.E.2d 769

155 Ind.App. 56

Denise DRISCOL, by her next friend, Richard Driscol, and Richard Driscol, Individually, Appellants, v. DELPHI COMMUNITY SCHOOL CORP., Joyce Ghere, Appellees.

No. 1271A277.

Court of Appeals of Indiana, Second District.

Dec. 29, 1972.

Rehearing Denied Jan. 30, 1973.

Robert E. Poynter, Bennett & Boehning, LaFayette, for appellants.

Frank E. Tolbert, Miller, Tolbert, Hirschauer & Wildman, Logansport, for appellees.

WHITE, Judge.

This appeal attempts to question whether, on the plaintiff's evidence and as a matter of law, defendants are insulated from tort liability by a new doctrine of public immunity forecast in Campbell v. State (1972), Ind., 284 N.E.2d 733, 31 Ind.Dec. 739, by the caveat that "some vestige of the governmental immunity must be retained . . . (including an immunity) as to acts or omissions of government employees which . . . (are) 'discretionary"'. ¹ Procedurally the question arises thus:

'At the close of Plaintiff's evidence, the Court sustained a Motion for judgment (for the defendants) on the evidence on the theory that school teachers and school corporations are not liable for injuries to their students resulting from a mistake of law or judgment; they are only responsible when guilty of 'corrupt motives.' In addition, the court held that a teacher must be guilty of some active negligence before liability attaches.' ²

'On appeal this court, in reviewing the trial court's action, may consider only the evidence and reasonable inferences which may be drawn therefrom most favorable to the plaintiff-appellant, to determine if there is any evidence from which it may be reasonably inferred that the plaintiff-appellant was entitled to relief.' ³

'In determining whether a peremptory instruction should be given the court must accept as true all facts which the evidence tends to prove and draw, against the party requesting such instruction, all inferences which the jury might reasonably draw.' ⁴

Application of these rules yields the following facts:

On December 2, 1969, Denise was a student at Delphi High School (which was operated by defendant school corporation in a building owned by the corporation and located in the city of Delphi.) ⁵ On that date she attended a girls' 'gym' class which was held in the basketball gymnasium of that school building during the third class period of the day, which third period was scheduled to begin at 10:15 A.M. and to end at 11:10 A.M. (During the morning, beginning at 8:15, each class period commenced fifteen minutes after the hour and ended ten minutes after the following hour, leaving but five minutes for students to move from class to class.) During that same third class period a boys' gym class was also meeting on the same basketball floor. (It appears that the playing floor area of the room was only slightly larger than the basketball court (presumably of standard high school size), which was outlined on it.) The boys' class, under the direction of a male teacher met at one end of the basketball court while the girls' class (under the direction of defendant, Miss Ghere) met at the other end. A canvas curtain across the center of the court separated the two classes. The girls' dressing room was located at a far corner of the boys' end of the playing floor.

During their gym class activities the girls wore what was described as 'a gym suit and knee socks and tennis shoes.' There is no evidence relative to the girls dressing for the class or of their getting from their dressing room to their end of the playing floor. They were nevertheless on the floor and engaged in a game called 'bombardment' ⁶ when, at the customary time, approximately 11:05 A.M. (five minutes prior to the 11:10 A.M. scheduled end of the class period), they were released to go to their next class period activity. Miss Ghere released the class by saying, 'All right girls you can go now.' This was the third year Denise had been in Miss Ghere's gym class and during all that time Miss Ghere had released the class in this manner at approximately the same time, i.e., three to five minutes before the end of the class period. As had also been the practice during all of that time, all the girls immediately began to run towards the end of the curtain which was on the side of the court nearest their dressing room, this being the only place they were permitted to pass to the boys' side of the gym floor. (There was an opening or gap in the center of the curtain where its two segments almost met. The girls were not allowed to go through that opening.) Also, as had been the three-year practice, the girls were not released until after the boys had left their end of the floor. While there was no testimony expressing any reason for that practice, common sense mandates the inference that its reason was the risk of injurious collisions if the girls were to attempt to cross the boys' floor while they were still exercising upon it.

At the time Miss Ghere told the girls they could go, Denise was on the side of the floor farthest from the end of the curtain around which the girls were required to pass in going to the dressing room. She immediately started to run towards that point and had gone only a short distance, perhaps three steps, when her feet became tangled with those of some other girl behind her (whose identify is unknown). She was unable to disentangle and fell to the floor with several other girls piling onto her. The entanglement was the only immediate cause of the fall. The gymnasium was well lighted. The floor was in good condition, dry, and free of any foreign substance. The fall broke Denise's left femur and cracked her right elbow. She spent considerable time in the hospital and in bed at home and it was several months before she was fully recovered. (Because no question of damages is involved we omit detailed facts concerning the injury, treatment, period of disability and extent of recovery).

No one was injured in Miss Ghere's gym class during the three years Denise was a member of the class.

There were forty-five girls in the class. (Approximately the same number were members during the two previous years.) Upon being told by Miss Ghere that it was alright to go they were all required to go to the girls' dressing room, remove their gym clothes, store them in their lockers, take a shower, don their regular school clothing, comb their hair, etc., and leave the gymnasium before the next class arrived and in time to get to their own next period activity before the tardy bell rang. It counted against their next class grade if they were tardy three times and they faced disciplinary problems if they were not out of the gym on time. Denise, however, was not in jeopardy of the tardy bell since her next period was devoted to lunch but the lunch room was crowded, the cafeteria line was long, and she had a band practice period which began at 12:10 P.M.

The dressing room area consisted of several rows of lockers with movable wooden benches between the rows of lockers. The shower area consisted of six shower stalls with one shower head per stall and each shower stall could accommodate two girls; but it was crowded, so that, at the most, twelve girls could shower at any one time. When all the girls were dressing, the dressing room was crowded and in fact was so crowded and disorganized that girls would use the rest room area to change clothes. Several girls were assigned to one locker and Denise shared her locker with two other girls in the same class. It was difficult for the girls to dress quickly because the dressing room was crowded; other girls were hurrying and the floors were slippery due to water from the showers. It often happened that the girls did not feel fully dressed when they left the gym because they had not had time to put on their hose or comb their hair.

Drawing against defendants all inferences which the jury might reasonably draw requires us to say that Denise fell because she and several other girls were running quite close together and that they were doing so because the time allowed them to get out of the gymnasium and to their next class period activity was, in respect to the facilities provided for showering, dressing, etc., so short that running was required.

As is permissible under present rules, plaintiffs' complaint alleges no specific acts (or omissions) of negligence. The pretrial order states:

'E. The claim of plaintiffs is based upon their contentions that the defendants, Joyce Ghere and the Delphi Community School Corporation, were negligent in:

(1) Permitting too many girls to be in a gymnasium class (45).

(2) In failing to provide adequate shower facilities for said class. (Such shower facilities were limited to six stalls).

(3) In failing to provide sufficient time so as to permit 45 girls to shower in six stalls (Plaintiffs would contend that the gymnasium instructor, defendant, Joyce Ghere, released the girls at two to three minutes past the hour and that said girls had to be dressed and out of class by ten minutes after the hour. Plaintiffs' contention is that such atmosphere proximately caused the injuries of plaintiff, Denise Driscoll (sic), a minor, and the damages sustained by Richard Driscoll (sic), her father).'

Plaintiffs make substantially the same contentions in their appellants' brief.

With respect to the first contention it was proved that there were forty-five girls in the class but there is absolutely no evidence that Miss Ghere had any part in fixing the size of the class. We see no way under any theory of negligence, and irrespective of any doctrine of immunity, that the jury could reasonably infer that Miss Ghere was 'negligent in permitting too many girls to be in a gym class (45).'

Furthermore, there...