Gillespie v. Southern Utah State College
| Decision Date | 25 August 1983 |
| Docket Number | No. 17850,17850 |
| Citation | 669 P.2d 861 |
| Parties | 13 Ed. Law Rep. 873 Rickey GILLESPIE and Ghislaine Gillespie, Plaintiffs and Appellants, v. SOUTHERN UTAH STATE COLLEGE, a public corporation, Defendant and Respondent, v. Scott L. BROWN, M.D., Third-Party Defendant and Respondent. |
| Court | Utah Supreme Court |
H. Wayne Wadsworth, Salt Lake City, Gerald J. Bloch, Milwaukee, Wis., for plaintiffs and appellants.
Roger H. Bullock and Gary D. Stott, Salt Lake City, for defendant and respondent.
This is an action to recover damages for personal injuries to the plaintiff Rickey Gillespie and for emotional injuries to, and loss of educational and employment opportunities by, the plaintiff Ghislaine Gillespie, Rickey's wife. At the conclusion of the plaintiffs' case, the trial court dismissed Ghislaine's cause of action. In addition, after the entry of the jury's special verdict finding that the defendant Southern Utah State College (hereafter "College") was not negligent, the trial court also dismissed Rickey's cause of action. We affirm.
Rickey was attending the College on a basketball scholarship for the 1977-78 school year. On January 4, 1978, Rickey sprained his ankle in a practice scrimmage. The basketball coach turned the treatment of Rickey's injury over to David Slack, a student trainer for the College. The treatment applied by Mr. Slack consisted of spraying the ankle with a tape adherent, applying a pre-wrap to prevent the tape from coming into contact with the skin, and then taping it.
After taping the ankle, Mr. Slack instructed Rickey to immerse his ankle in a bucket of ice water for ten to fifteen minutes, then to remove it and walk on it for three to five minutes, and to repeat this cycle two to three more times. Rickey followed this procedure for the remainder of the practice scrimmage and then continued it for two hours at home. Later that evening, Mr. Slack brought a bag of ice to Rickey's apartment, helped Rickey into bed, elevated his foot, and put the bag of ice on his ankle. The ice lasted approximately two hours.
On January 5, 1978, the morning after the injury, Mr. Slack made arrangements for Rickey to see the third-party defendant Dr. Scott L. Brown that afternoon. Dr. Brown noted in passing that due to the swelling the tape was difficult to remove. Dr. Brown took an x-ray of Rickey's ankle which revealed that it was not fractured, only sprained. Upon inquiry regarding the treatment that Mr. Slack had prescribed for Rickey's ankle, Mr. Slack replied that he had been "icing" it. Dr. Brown assumed tht "icing" meant applying ice packs. Dr. Brown instructed Rickey and Mr. Slack to continue wrapping and "icing" Rickey's ankle for a period not to exceed 72 hours from the time of injury and prescribed codeine for pain.
After leaving Dr. Brown's office, Rickey and Mr. Slack went to the training room where Rickey's ankle was retaped with a pressure bandage to allow for swelling and the ice water immersion treatments were continued. That evening, Mr. Slack brought a bag of ice to Rickey's apartment and told Rickey to continue the ice water immersion treatments. There was testimony indicating that Rickey slept that night with his ankle submerged in a bucket of ice water.
On the evening of January 6, 1978, two days after the injury, Rickey sat on the bench and periodically immersed his foot in ice water during the first and second halves of the basketball game. After the game, he continued the ice water immersion treatments at home. On the evening of January 7, 1978, Rickey again periodically immersed his foot in ice water during the first and second halves of the basketball game. Rickey did not recall any treatment after the game. On January 8, 1978, Rickey may have used the ice treatments during the day.
Late in the afternoon on January 9, 1978, the basketball coach and/or Mr. Slack started Rickey on warm whirlpool treatments. That evening, Mr. Slack visited Rickey at his home and found him using the ice water immersion treatment because Rickey said that it made his foot feel better. Mr. Slack immediately called Dr. Brown, who instructed Mr. Slack to stop the ice water treatment, to wrap Rickey's foot with Atomic Balm, which created heat, and to have Rickey sleep with his foot elevated.
On the morning of January 10, 1978, six days after the injury, Rickey visited Dr. Brown, who sent Rickey to the Valley View Hospital to be admitted and treated for the injury to his foot. Rickey was diagnosed as suffering from thrombo phlebitis and as having apparent frostbite of the fourth and fifth toes along with smaller areas on the bottom of his foot and heel. On January 23, 1978, Rickey was discharged from the Valley View Hospital for further treatments at a hospital nearer to his home in Milwaukee, Wisconsin. Dr. Rydlewicz, who treated Rickey in Milwaukee, rated Rickey's right lower extremity as being ninety percent disabled due to amputation of a gangrenous toe, removal of some tissue and muscle of the right foot, and osteomyelitis of the right foot. During his testimony at trial, Dr. Rydlewicz also expressed his concern as to whether Rickey's foot could be saved because of the osteomyelitis, and said that a below the knee amputation may be necessary at some future time.
On March 2, 1979, Rickey and Ghislaine filed suit against the College claiming that the basketball coach and Mr. Slack were negligent in their treatment of Rickey's injury. On August 14, 1979, the College filed a third-party complaint against Dr. Brown. At trial, at the conclusion of the plaintiffs' case, the trial court dismissed Ghislaine's cause of action. The jury subsequently returned a special verdict in which it found that: (1) Rickey was 100% negligent and such negligence was the proximate cause of his injuries, and (2) the College and Dr. Brown were not negligent. Based on the jury's special verdict, the trial court also dismissed Rickey's cause of action.
On appeal, Rickey claims that the jury verdict should be set aside because the jury's finding of no negligence by the College was contrary to the...
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