Kersey v. Harbin

Decision Date18 December 1979
Docket NumberNo. 10801,10801
Citation591 S.W.2d 745
PartiesRichard KERSEY and Delores Jean Kersey, Plaintiffs-Appellants, v. Samuel HARBIN, W. L. Clayton, Albert Holmes, Jr., Webb Edwards and Mary Mather, Defendants-Respondents.
CourtMissouri Court of Appeals

Stephen N. Limbaugh, Limbaugh, Limbaugh & Russell, Cape Girardeau, for plaintiffs-appellants.

David E. Blanton, Blanton, Rice, Sickal, Gilmore & Winchester, Sikeston, for defendants-respondents.

HOGAN, Judge.

The legal aspects of this tragedy are before this court for a second time. On March 5, 1974, plaintiffs' son Daniel was an eighth grade student in the Sikeston, Missouri, Junior High School. Daniel was not quite 14 years old. At 2:40 p. m., Daniel reported to his regularly scheduled physical education class. His regular instructor was absent that day attending a "health workshop" in Cape Girardeau, with the permission of his superior. Mr. Clayton, the principal, had arranged for Mr. Holmes, another instructor, to teach both classes. Mr. Holmes regularly taught a physical education class of eighth and ninth graders in the school gymnasium, as did Daniel's usual instructor, Mr. Edwards. Normally, the two classes met at the same time, shared the locker room adjacent to the gym and exercised in the same gym, but each class had a separate teacher.

By deposition, Mr. Clayton testified he had discussed combining the two classes with Mr. Holmes and Mr. Edwards; both Holmes and Edwards assured Clayton the combination would create no difficulty. There is some evidence of a state administrative policy against assigning more than 45 students to any particular physical education instructor. Mr. Holmes and Mr. Edwards indicated that there were 20 to 25 students in each of the classes which were combined, but the size of the combined class is not definitely established by the record; Mr. Clayton, Mr. Holmes and Mr. Edwards alluded to the existence of "grade books" from which an accurate roll could be prepared, but these books were not produced.

On the afternoon of Daniel's fatal injury, Mr. Holmes departed from his usual routine. Holmes' usual practice was to remain in the locker room while his gym class dressed in order to prevent horseplay and to make sure stragglers left the locker room. As each student dressed, he would move onto the gym floor. On this occasion, Holmes departed from his usual practice by instructing his own class to go from the locker room onto the floor of the gym; Daniel's class was told to remain in the locker room until all were dressed, then go out to the gym together. Holmes did this to imitate Mr. Edwards' practice.

Mr. Holmes remained in the locker room to follow the last students into the gym. As Daniel went from the locker room into the gym, he was injured. The record contains no eyewitness account of the incident, but Mr. Clayton inquired after the fact. Mr. Clayton's inquiry indicates that as Daniel and another student, Steve Sims, were going through the hallway leading to the gymnasium, Sims began stepping on the heels of Daniel's shoes. Daniel thereupon "elbowed" Sims in Sims' genitals. Sims then picked Daniel up and Daniel either fell or was dropped on the floor.

Daniel requested and obtained permission to see the school nurse. The nurse, Mrs. Mather, found no apparent sign of extreme injury, and permitted Daniel to return to his gym class. He became worse; he returned to the nurse's office and Mrs. Mather summoned either one or both of his parents. Daniel was taken to his physician and expired shortly thereafter. An autopsy revealed Daniel had sustained a skull fracture; on the record, his death seems to have been caused by massive cerebral hemorrhage.

Thereafter the plaintiffs commenced a wrongful death action against Samuel Harbin, Superintendent of Public Schools at Sikeston; W. L. Clayton, principal of the junior high; Albert Holmes, Jr., and Webb Edwards, the two instructors involved, and Mary Mather, the school nurse. The trial court sustained defendants' motions to dismiss on several grounds. On appeal this court concluded, in a rather unsatisfactory opinion, that the action was a "disfavored" action, the pleadings were insufficient, but reversed and remanded the cause to allow plaintiffs an opportunity to amend their petition. Kersey v. Harbin, 531 S.W.2d 76 (Mo.App.1975).

After remand, plaintiffs filed an amended petition in several counts. Defendants severally filed motions to dismiss the action. Interrogatories were propounded to the plaintiffs and their verified answers were filed. The depositions of all the parties were taken. The trial court took up the motions to dismiss, the depositions were opened and filed, and the motions were taken under advisement. The motions to dismiss were denied; defendants thereupon filed answers and separate motions for summary judgment. The plaintiffs filed an opposing affidavit.

On March 8, 1977, defendants' motions for summary judgment were called. Counsel presented arguments and the motions were taken under advisement. On August 29, 1977, the trial court entered a judgment granting the motions for summary judgment each and severally. Plaintiffs appealed from the judgment, but in this court they have assigned error only to the entry of summary judgment in favor of defendants Harbin, Clayton and Holmes. The appeal as against defendants Edwards and Mather must therefore be deemed abandoned. Charles Palermo Co., Inc. v. Wyant, 530 S.W.2d 15, 17(1) (Mo.App.1975); Komanetsky v. Missouri State Medical Association, 516 S.W.2d 545, 549(1) (Mo.App.1974). 1 We are therefore concerned only with the summary judgments entered against defendants Samuel Harbin, W. L. Clayton and Albert Holmes.

The "ground rules," so to speak, governing entry of a summary judgment against a plaintiff in a tort case have been so often stated it is unnecessary to restate them at length. Rule 74.04(h), V.A.M.R., states: " . . . In no case shall a summary judgment be rendered on issue (sic) triable by jury . . . unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law." Aside from noting that federal decisions construing Fed.R.Civ.P. 56 are regarded as persuasive in Missouri, Cooper v. Finke, 376 S.W.2d 225, 228(1) (Mo.1964), we need not repeat or expand what was held in Pagan v. City of Kennett, 427 S.W.2d 251, 252-253 (Mo.App.1968). The only other preliminary matter to be noted is that the depositions offered and received in the proceeding for summary judgment are prefaced by the following stipulation:

"It is stipulated and agreed that depositions may be taken by Stenograph and transcribed; That (any and) all . . . objections, excepting as to the form of the question, may be made at the trial; And it is further agreed that the signatures of the witnesses may be waived." (emphasis added)

The relevant charges of negligence against defendants Harbin, Clayton and Holmes may be briefly summarized as follows: defendants Harbin and Clayton are charged with actual or constructive knowledge of quarrelsome propensities on Sims' part and with negligence in directing Daniel's usual instructor to be elsewhere on March 5, 1975; negligent failure to provide a substitute for the regular instructor; failing to take appropriate measures to prevent injury by Sims to other students, particularly Daniel, and leaving an eighth grade physical education class composed of 20 to 25 male students unsupervised in a gymnasium without a teacher. Mr. Holmes was charged with negligence in failing to keep the two physical education classes under direct supervision at all times; the petition further avers that Mr. Holmes had actual or constructive knowledge of Sims' propensity for " . . . causing disturbances and . . . fighting, agitating and arousing his fellow students in ways likely to cause harm to other students," and in failing, in light of that knowledge, to take proper measures to avoid fighting in the class. The questions for decision here are: 1) whether the petition states a claim upon which relief can be granted, and 2) whether it appears, considering the evidence in the light most favorable to the plaintiffs, defendants have shown by unassailable proof they are entitled to judgment as a matter of law.

In arguing that their motions to dismiss should have been granted, the defendants contend that as officers of the school district, they are clothed with a species of immunity and cannot be held liable except for commission of an intentional tort. We reject this argument, but in view of our prior opinion, a word of explanation is called for. Our analogy to "disfavored causes" was unfortunate, but it was based upon the implications of Baker v. Owen, 395 F.Supp. 294, 302-303(9-10) (M.D.N.C.1975), aff'd 423 U.S. 907, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). Baker dealt directly with the constitutionality of a statute, but implied that a public school student's interest in bodily security was subject to Eighth and Fourteenth Amendment protection. The decision strongly suggested that an instructor could admonish unruly students, but could do little else without a Prior hearing regardless how counsel for the appellants may have read the decision. The uncertainty created by Baker has been dispelled, to some degree, by the majority holding in Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). We will reiterate that we have found no rule of law, no line of authority, which clothes any of the defendants with immunity from liability for his negligent acts. What Smith v. Consolidated School Dist. No. 2, 408 S.W.2d 50 (Mo.banc 1966), actually held, we are now convinced, is that the scope of the supervisory duty is very narrow. Defendants' obligation was to exercise ordinary care to supervise the children, or in the case of defendants Harbin and Clayton, to exercise ordinary...

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