Greening by Greening v. School Dist. of Millard

• Decision Date: 05 September 1986
• Docket Number: No. 17,A,No. 85-467,17,85-467
• Citation: 223 Neb. 729,393 N.W.2d 51
• Parties: , 34 Ed. Law Rep. 1199 Mark GREENING, By Douglas J. GREENING and Sandra K. Greening, Parents and Next Friends, and the United States of America, Appellants, v. The SCHOOL DISTRICT OF MILLARD, also known as Millard Public Schools, Districtppellee.
• Court: Nebraska Supreme Court

Page 51

393 N.W.2d 51

223 Neb. 729, 34 Ed. Law Rep. 1199

Mark GREENING, By Douglas J. GREENING and Sandra K. Greening, Parents and Next Friends, and the United States of America, Appellants, v. The SCHOOL DISTRICT OF MILLARD, also known as Millard Public Schools, District No. 17, Appellee.

No. 85-467.

Supreme Court of Nebraska.

Sept. 5, 1986.

Syllabus by the Court

1. Directed Verdict: Appeal and Error. In reviewing a directed verdict the Supreme Court assumes the truth of material and relevant evidence presented by the nonmoving party.

2. Directed Verdict. Regarding a directed verdict, the nonmoving party is entitled to have every controverted fact resolved favorably to the nonmoving party and to receive the benefit of every inference reasonably deducible from the evidence.

3. Directed Verdict. Only where reasonable minds can draw but one conclusion from the evidence presented is a directed verdict an appropriate method of terminating litigation.

4. Proximate Cause: Negligence: Proof. There are three basic requirements in establishing proximate cause. First, the negligence must be such that "without which the injury would not have occurred," commonly known as the "but for" rule. Second, the injury must be the natural and probable result of the negligence. Third, there must be no efficient intervening cause.

5. Proximate Cause: Negligence. A defendant's conduct is a cause of the event if the event would not have occurred but for that conduct; conversely, the defendant's conduct is not a cause of the event if the event would have occurred without it.

6. Master and Servant: Employer and Employee: Independent Contractor: Negligence: Liability. A nondelegable duty means that an employer of an independent contractor, by assigning work consequent to a duty, is not relieved from liability arising from the delegated duties negligently performed.

7. Master and Servant: Employer and Employee: Independent Contractor: Negligence: Liability. A person conducting an activity through a servant or other agent is subject to liability for harm resulting from such conduct if the employer is negligent or reckless in the employment of an improper person or instrumentality for work involving risk of harm to another.

8. Master and Servant: Employer and Employee: Independent Contractor: Negligence: Liability. An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care in selecting an employee, even if such employee is an independent contractor.

9. Master and Servant: Employer and Employee: Independent Contractor: Negligence: Proximate Cause: Liability. To impose liability on an employer for negligently entrusting work to an employee incompetent to perform such work, a plaintiff must not only show that the employer negligently selected a person incapable of performing the work but also show that the conduct of the incompetent employee was a proximate cause of injury to another. The employee's characteristic, quality, or deficiency must proximately cause the harm producing injury to another.

10. Negligence: Liability. Liability for negligence may be predicated upon the lack of foresight or of forethought which is exhibited where one remains in voluntary ignorance of facts respecting the danger inherent in the particular act or instrumentality involved.

11. Torts: Negligence: Liability: Damages. As a general rule, a nonprofessional, competently executing an order from a professional, may be held liable for the damage resulting from execution of such order if the order given was so obviously improper that an ordinarily prudent person, under the circumstances, would have refrained from carrying out the professional's order or direction.

Frederick S. Cassman of Abrahams, Kaslow & Cassman, Omaha, for appellants.

Charles F. Gotch of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

SHANAHAN, Justice.

On May 20, 1982, Mark Greening, age 11, suffered a fracture to his right upper femur while participating in a physical therapy program administered at an elementary school in the Millard school district. Mark, by his parents, Douglas J. and Sandra K. as next friends, filed an action for negligence, naming the school district and Kari T. Miller as defendants. The case was tried without a jury in accordance with Neb.Rev.Stat. § 23-2406 (Reissue 1983) (suits against political subdivisions "shall be heard and determined by the appropriate court without a jury"). At the conclusion of Mark's case in chief, the district court for Douglas County granted the school district's motion for a directed verdict and dismissed the petition. Kari Miller is no longer involved in the proceedings. We affirm.

The district court determined, as a matter of law, that evidence was insufficient to sustain a judgment in favor of Mark. In reviewing a directed verdict the Supreme Court assumes the truth of material and relevant evidence presented by the nonmoving party. See Keystone Bus Lines v. ARA Services, 214 Neb. 813, 336 N.W.2d 555 (1983). Regarding a directed verdict, the nonmoving party is entitled to have every controverted fact resolved favorably to the nonmoving party and to receive the benefit of every inference reasonably deducible from the evidence. See Rose v. United States Nat. Bank, 218 Neb. 97, 352 N.W.2d 594 (1984). Only where reasonable minds can draw but one conclusion from the evidence presented is a directed verdict an appropriate method of terminating litigation. See Tank v. Peterson, 219 Neb. 438, 363 N.W.2d 530 (1985). Applying the preceding principles pertaining to a directed verdict, we consider the evidence adduced in the present case.

Mark was born in 1970 with a congenital deformity of the spinal column, known as myelodysplasia, a condition which, for Mark, resulted in some elements of paralysis of his legs. A common effect of myelodysplasia is osteoporosis, described, generally, as loss or diminishment of mineral in the bone. As a result of osteoporosis, bone tends to become less strong and less able to sustain the normal stress of day-to-day activity. Because inactivity results in more osteoporosis, one treating osteoporosis must walk "a fine line of providing enough activity to allow the bone to build up but not so much activity as to provide at that point in time extra stress upon the bone."

When paralysis associated with myelodysplasia left Mark unable to ambulate, he eventually suffered osteoporosis, weakening the bones in his legs. Although provided with leg braces and special crutches by an orthopedic surgeon, Mark, as of 1982, was unable to move on his feet without assistance from others and has spent considerable time confined to a wheelchair.

Mark entered the Millard public school system in the late 1970s and, eventually, came under the care of two therapists associated with the school district, Lynda Shoemaker, a physical therapist, and Kari Miller, an occupational therapist. During the 1980-81 school year, the school district paid Shoemaker and Miller and directly supervised their activities as therapists. In June 1981, however, that arrangement changed. Although Shoemaker and Miller continued to work exclusively with students of the school district, the therapists became employees of the State of Nebraska, paid by the state and employed under the direction of the state Services for Crippled Children, which had the responsibility of providing therapy programs for physically disabled children. After June 1981 neither Shoemaker nor Miller regularly attended staff meetings held in the school district, and both scheduled therapy sessions independent from the school district's supervision.

During the 1981-82 school year, Shoemaker developed an exercise program designed to enable Mark to eventually "move out of his wheelchair" and ambulate "with the help of either a walker or special type of crutches." Specifically, the Shoemaker program required Mark to perform four different exercises, including numerous situps and pushups. Shoemaker, a professional physical therapist licensed by the state, see Neb.Rev.Stat. § 71-102 (Reissue 1981), did not submit her program to any physician. Shoemaker did consult with Mark's orthopedist regarding general goals to be achieved by Mark through physical therapy and was aware of Mark's medical condition. Miller also developed an exercise program designed to develop strength in Mark's arms and thereby increase his independence to engage in "activities of daily living." Both programs of therapy were developed without consultation with or directive contribution from the school district's supervisory personnel.

Initially, Shoemaker and Miller administered and supervised their therapy programs prescribed for Mark. By the spring of 1982 an increasing workload for the therapists made it difficult to personally supervise all students assigned for therapy. In early May 1982 Sherrie Elliott, the school district's coordinator of special education, contacted Shoemaker and suggested that she use Rendell Paden, a school district employee, as an "aide" to "work with Mark." Paden, Elliott's brother, was not a qualified therapist and had no experience in dealing with individuals suffering from Mark's particular condition. Part of Paden's duties as a school district employee, however, included working with children in special education programs. In fact, it was the school district's practice to provide a professional therapist with aides who would "monitor" the program developed by therapists. Sometime in May, Shoemaker and Miller met with Paden to describe and demonstrate their respective exercise programs. According to the therapists' directions to Paden, Mark's exercises were to be performed with Mark's leg braces in place. Paden thereafter assumed the task of overseeing Mark's performance of the exercises ordered by the therapists.

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