Hearon v. May

• Decision Date: 01 December 1995
• Docket Number: S-94-188,Nos. S-94-187,s. S-94-187
• Citation: 540 N.W.2d 124,248 Neb. 887
• Parties: , 104 Ed. Law Rep. 1360 Craig HEARON, Appellant, v. Tim MAY et al., Appellees. Debra WARNING, Appellant, v. Tim MAY et al., Appellees.
• Court: Nebraska Supreme Court

Page 124

540 N.W.2d 124

248 Neb. 887, 104 Ed. Law Rep. 1360

Craig HEARON, Appellant, v. Tim MAY et al., Appellees.

Debra WARNING, Appellant, v. Tim MAY et al., Appellees.

Nos. S-94-187, S-94-188.

Supreme Court of Nebraska.

Dec. 1, 1995.

Syllabus by the Court

1. Appeal and Error. An appellate court has an obligation to reach conclusions on questions of law independent of the trial court's ruling.

2. Summary Judgment. Summary judgment is to be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

4. Negligence: Words and Phrases. Ordinary negligence is doing something that a reasonably careful person would not do under similar circumstances, or failing to do something that a reasonably careful person would do under similar circumstances.

5. Pleadings: Demurrer: Appeal and Error. A litigant must stand on a pleading against which a demurrer has been sustained in order to preserve the right to appeal the decision on the particular demurrer.

6. Negligence. Inattention to the duty to exercise care in a situation which reasonably may be regarded as hazardous is evidence of negligence, notwithstanding the act or omission involved would not in all cases, or even ordinarily, be productive of injurious consequences.

7. Actions: Torts: Negligence. A participant in a game involving a contact sport is liable for injuries in a tort action only if his or her conduct is such that it is either willful or constitutes a reckless disregard for the safety of another participant. Such a participant is not liable for ordinary negligence.

8. Negligence. Instructors, teachers, and coaches are liable for injuries sustained by an instructee if such injuries are received by the instructee while the instructor, teacher, or coach engages in physical contact with the instructee and the instructee's injuries are the proximate result of the ordinary negligence of the instructor, teacher, or coach.

9. Negligence. Negligence must be measured against the particular set of facts and circumstances which are present in each case.

10. Negligence: Words and Phrases. Where lack of supervision by an instructor is relied upon to impose liability, the negligence cause of action is defined as doing something which an ordinary, prudent person would not have done under similar circumstances or failing to do something which an ordinary, prudent person would have done under similar circumstances.

James J. Paloucek, of Kelley, Scritsmier & Byrne, P.C., North Platte, for appellants.

Stephen Kay, of Kay & Kay, North Platte, for appellee May.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

FAHRNBRUCH, Justice.

Craig Hearon, a high school student wrestler, and his mother, Debra Warning, each filed a petition against Tim May, a wrestling referee, claiming that Hearon suffered spinal injuries as a direct and proximate result of (1) May's ordinary negligence and (2) May's reckless disregard for the safety of Hearon while May was instructing Hearon on a wrestling maneuver.

On May's motion, the district court for Chase County struck from each of the plaintiff's amended petitions the ordinary negligence cause of action. Also on May's motion, the district court entered summary judgment in favor of May on each amended petition The evidential record reflects that at the time of Hearon's injuries, May was instructing Hearon on how to appropriately conduct a wrestling maneuver, the "fireman's carry."

and dismissed the petitions' remaining causes of action, which alleged reckless disregard for Hearon's safety. Hearon and Warning timely appealed from the trial court's holdings.

We hold that ordinary negligence is a proper cause of action when negligent supervision or negligent instruction is involved in a sporting activity. Hearon and Warning, therefore, should not have been precluded from alleging in their amended petitions that May is liable for Hearon's injuries on the grounds of negligent supervision and negligent instruction.

We reverse the trial court's orders that struck from the petitions in these cases the causes of actions which alleged that May was negligent and the trial court's entries of summary judgment in favor of May.

ASSIGNMENTS OF ERROR

In substance, Hearon and Warning contend that the trial court erred in (1) sustaining May's demurrers, (2) sustaining May's motions to strike, (3) granting May's motions for summary judgment, and (4) determining that Hearon and Warning are not entitled to a jury trial in their actions against May.

STANDARD OF REVIEW

An appellate court has an obligation to reach conclusions on questions of law independent of the trial court's ruling. Lincoln Lumber Co. v. Fowler, 248 Neb. 221, 533 N.W.2d 898 (1995).

Summary judgment is to be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Callan v. Balka, 248 Neb. 469, 536 N.W.2d 47 (1995). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. See SID No. 57 v. City of Elkhorn, 248 Neb. 486, 536 N.W.2d 56 (1995).

FACTS

May, a Nebraska State Athletic Association certified high school wrestling referee, was a former two-time district champion high school student wrestler from Banner County who qualified for state high school wrestling meets for 4 years. May also played football for 2 years at the University of Wyoming.

The Dundy County High School athletic director hired May to referee a January 31, 1991, wrestling meet between Dundy County High School and Culbertson High School.

At the conclusion of the wrestling meet between the two high schools, May, with the approval of Dundy's team coach and the school athletic director, volunteered to instruct Dundy wrestlers on certain wrestling maneuvers. The Dundy coach called his Dundy wrestlers together after the meet and told them that May would demonstrate some moves to help the team. The instruction by May was not required, and some of the Dundy wrestlers chose to leave and not attend May's instruction.

The fireman's carry was among the maneuvers upon which May instructed the wrestlers.

In his deposition, Hearon described the fireman's carry as "shoot[ing] in on somebody like you're going to take them down in a single-leg, you capture their arm and you more or less pull them off your shoulder with the use of their arm and your other arm onto the mat." According to Hearon, the fireman's carry is a takedown maneuver in which the opponent usually will fall on his hip or back.

May, in his deposition, described the fireman's carry as being initiated with a "head tie." The wrestler grabs an opponent's arm, ducks his own head underneath the opponent's "shoulder pit," and with one knee drops to the mat and to the middle of the opponent's legs, and with his hand under the opponent's crotch, the wrestler throws the opponent to the mat.

After May instructed the wrestlers in a group, the team coach told the wrestlers to separate into pairs and work on the maneuvers. Hearon practiced the maneuvers with May because an even number of high school wrestlers was not present. Hearon performed the fireman's carry on May more than once at near regular speed. The more that Hearon performed the maneuver on May, the more May resisted Hearon's attempted takedowns, which, according to Hearon, is normal in practicing a wrestling maneuver.

According to Hearon's deposition, as he was once again preparing to attempt the fireman's carry, May, without telling Hearon, began performing the fireman's carry on Hearon and performed it more than once. May stated in his deposition that he did inform Hearon that he would be performing the fireman's carry on Hearon. The two then alternated in performing the fireman's carry with resistance, as if they were in a meet. At all times during the drill, May's intention was not to engage in wrestling, but to instruct Hearon and demonstrate to him the proper way to perform selected wrestling maneuvers.

During the drill, May, at approximately 75 percent full speed, executed the fireman's carry on Hearon. The petitions allege that, instead of landing on his hip or his back, Hearon landed on his head, and as a result, Hearon received a fracture and displacement of his cervical spine.

Hearon and Warning filed petitions against May, Dundy County Public Schools, the coach, and the athletic director. As to May, the petitions alleged that May was negligent in wrestling with Hearon. May filed a demurrer to each petition. The trial court sustained the demurrers on the grounds that an allegation of reckless disregard for Hearon's safety was required to state a cause of action and that an allegation of ordinary negligence was not sufficient. Ordinary negligence is doing something that a reasonably careful person would not do under similar circumstances, or failing to do something that a reasonably careful person would do under similar circumstances. Kappenman v. Heule, 241 Neb. 54, 486 N.W.2d 27 (1992).

Hearon and Warning did not stand on their pleadings, but, rather, filed amended petitions against May, Dundy County Public Schools, the coach, and the athletic director. Each petition stated that the claim made upon Dundy County Public Schools was filed in compliance with the Nebraska Political Subdivisions Tort Claims Act. No such claim was made against May.

The first cause of action in each amended petition alleged negligent supervision on the part of all defendants, including May....