Fagan v. Summers
| Decision Date | 06 July 1972 |
| Docket Number | No. 4059,A,No. 1,1,4059 |
| Citation | 498 P.2d 1227 |
| Parties | George FAGAN, by and through his natural father and next friend, Donald Fagan, Appellant, v. Mrs. Lloyd SUMMERS and Park County School Districtppellees. |
| Court | Wyoming Supreme Court |
Christian S. Hinckley and Nancy G. Hinckley, of McKinney, Hinckley & Hinckley, Basin, for appellant.
G. J. Cardine, of Cardine & Vlastos, Casper, Ross D. Copenhaver, of Copenhaver & Castberg, Powell, for appellees.
Before McINTYRE, C. J., and PARKER and McEWAN, JJ.
This case involves a suit for damages brought on behalf of seven-year-old George Fagan against a teacher's aid, Mrs. Lloyd Summers, and Park County School District No. 1.
During a noon recess a fellow student threw a small rock which hit a larger rock on the ground and then bounced up and struck George Fagan, causing him to lose the sight in his left eye. The trial court held a pretrial conference, after which defendants moved for summary judgment. The motion was supported by affidavits made on behalf of the defendants, and counter-affidavits were submitted on behalf of the plaintiff.
The trial court granted summary judgment for both Mrs. Summers and the school district. The questions on appeal are these: (1) Was there a genuine issue of fact with respect to negligence of the school district in its maintenance and care of the playground area? (2) Was there a genuine issue of fact with respect to the negligence of Mrs. Summers in her supervision of the playground?
Pursuant to the provisions of § 21.1-45, W.S.1957, 1971 Cum.Supp., counsel for appellant agrees governmental immunity has been waived only to the extent of personal injury insurance carried by the school district and that plaintiff could recover, if at all, only to the extent of such insurance coverage. But even if there was insurance, we still must examine to see whether plaintiff has shown the existence of substantial evidence of negligence on the part of either defendant, which proximately caused the injury to plaintiff. In other words, did plaintiff make a sufficient showing in this regard to get past the motion for summary judgment?
Regarding defendant Summers, she has stated by affidavit that she walked past the plaintiff and five or six other boys twice prior to the accident, while they were sitting on the ground near the school building. The boys were laughing and talking and she saw nothing out of the ordinary. After Mrs. Summers strolled by this group of youngsters, she had walked approximately 25 feet (taking about 30 seconds) when she heard an outcry from plaintiff. The acccident happened in that interval.
There is no evidence or indication that Mrs. Summers' explanation is not true. Also, it is claimed on behalf of defendants that Mrs. Summers was reliable, conscientious and capable in her work and a good playground supervisor. This does not appear to be challenged in any of the evidence.
There is no requirement for a teacher to have under constant and unremitting scrutiny all precise spots where every phase of play activities is being pursued; and there is no compulsion that general supervision be continuous and direct at all times and all places. Segerman v. Jones, 256 Md. 109, 259 A.2d 794, 805.
In Butler v. District of Columbia, 135 U.S.App.D.C. 203, 417 F.2d 1150, 1152, the court considered it common knowledge, susceptible of judicial notice, that small boys may indulge in horseplay when a teacher's back is turned. And in Ferreira v. Sanchez, 79 N.M. 768, 449 P.2d 784, 787, it was said:
'We must recognize the impossibility of a teacher supervising every minute detail of every activity * * *.'
A teacher cannot anticipate the varied and unexpected acts which occur daily in any about the school premises. Where the time between an act of a student and injury to a fellow student is so short that the teacher has no opportunity to prevent injury, it cannot be said that negligence of the teacher is a proximate cause of the injury. Morris v. Ortiz, 103 Ariz. 119, 437 P.2d 652, 655.
As far as the instant case is concerned, counsel for appellant was asked during oral argument what should have been done by Mrs. Summers which was not done. His answer was to the effect that she could really not have done more than she did do and she could probably be dismissed from the suit. We consider counsel's answer frank and honest. In view of it and in view of what we have said about the absence of proximate cause on the part of Mrs. Summers, we hold summary judgment for her was proper.
When counsel for appellant was asked during oral argument what the district should have done which was not done, his answer was that the district should have put the playground in better shape and should have provided more supervisors.
There is evidence that construction of a new school building was taking place. In connection with this construction, the blacktop of the playground had been torn up leaving clods of blacktop and a rough playground. It is also shown that this condition remained for approximately two years.
Although plaintiff alleged in his complaint that he had been hit with a piece of torn-up blacktop, counsel for appellant conceded in oral argument, as far as the record is concerned, plaintiff was hit with a rock. Counsel then advanced the theory that, when the blacktop was torn up, it left rocks from beneath exposed.
There would be a possibility of this set of facts being proved if trial were had. Therefore, we will assume, for purposes of considering the propriety of summary judgment, that the playground was rough for a long period of time, with the blacktop torn up and rocks from beneath exposed. Although there appears to be no evidence as to where the rock which struck plaintiff came from, we will assume it was one which had been beneath the blacktop prior to ripping up of such blacktop.
We realize there are cases which hold a school district can be liable for injury resulting from a dangerous and defective condition of a playground. We have found no case, however, which holds rocks on the ground to be a dangerous and defective condition. Left on the ground, a rock will hurt no one.
Therefore, if we were to assume the school district was negligent for allowing rocks to be on the playground, we would have to hold the act of a third person who throws one of the rocks and injures the plaintiff an intervening cause of the accident. 1
The case of Ferreira v. Sanchez, 79 N.M. 768, 449 P.2d 784, 786, which we have referred to previously, involved a case where a live bullet rather than a blank was inserted in a pistol used in a school play. The pistol was shot and plaintiff was injured. The court held injury in that case had not been caused by negligence of the teacher but by the intervening act of a third person.
In the case before us, plaintiff was not injured by negligence, if any, from rocks being on the playground. The injury was clearly caused by the intervening act of a third person-the boy who picked up and threw the rock. Appellant cites no authority for the proposition that such a result was reasonably foreseeable. 2
The case of Hoose v. Drumm, 255 App.Div. 417, 7 N.Y.S.2d 973, aff. 218 N.Y. 54, 22 N.E.2d 233, 234, rearg. den. 286 N.Y. 568, 35 N.E.2d 922, involved a claim for damages where the plaintiff's eye had been destroyed when another pupil threw a goldenrod stalk at recess. The court held there was no dangerous condition on the school premises since the standing goldenrod stalks were not pernicious in themselves. The same, of course, can be said of whatever rocks may have been present in the case we are dealing with.
We are impressed with language which was used some years ago in Whiteford v. Yuba City Union High School Dist., 117 Cal.App. 462, 4 P.2d 266, 267. There, an orange had been thrown from the schoolyard. The court said:
Regarding the matter of proximate cause, the case of May v. Board of Education, 269 App.Div. 959, 58 N.Y.S.2d 127, affd. 295 N.Y. 948, 68 N.E.2d 44, 44-45, is in point. There, three boys pulled the plaintiff over backwards. He fell on a clinker which was on the surface of the playground and was injured. The court held the proximate cause of the accident was the 'unforeseen' act of the three boys in pulling plaintiff over and not the failure to maintain the playground in a safe condition. 3
It is apparent from all we have said that the proximate cause...
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...consistent with the rulings of this court in Collins v. Memorial Hospital of Sheridan County, Wyo.1974, 521 P.2d 1339, and Fagan v. Summers, Wyo.1972, 498 P.2d 1227, holding tort liability to exist only to the extent of insurance I am satisfied that the decision of the court has taken away ......
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