Lanning By and Through Lanning v. Anderson

• Decision Date: 22 March 1996
• Docket Number: No. 447,No. 73546,C,447,73546
• Citation: 22 Kan.App.2d 474,921 P.2d 813
• Parties: , 111 Ed. Law Rep. 1361 Marcus J. LANNING, a Minor, By and Through David LANNING and Cathy Lanning, Next Friend and Natural Guardian, Appellee/Cross-Appellant, v. Jeff ANDERSON and Board of Education of Unified School Districtherryvale, Kansas, Appellants/Cross-Appellees. 1
• Court: Kansas Court of Appeals

Page 813

921 P.2d 813

22 Kan.App.2d 474, 111 Ed. Law Rep. 1361

Marcus J. LANNING, a Minor, By and Through David LANNING and Cathy Lanning, Next Friend and Natural Guardian Appellee/Cross-Appellant, v. Jeff ANDERSON and Board of Education of Unified School District No. 447, Cherryvale, Kansas Appellants/Cross-Appellees.

No. 73546. ¹

Court of Appeals of Kansas.

March 22, 1996.

Syllabus by the Court

1. The standard for both granting and reviewing a directed verdict is stated and applied.

2. The presence or absence of negligence in any degree should be left to the trier of fact. Only when reasonable persons could not reach differing conclusions from the same evidence may the issue be decided as a question of law.

3. Under the Kansas Tort Claims Act, governmental liability is the rule and immunity is the exception. The general rule, subject to exceptions, is that governmental entities and governmental employees acting within the scope of their employment are liable for damages to the same extent as a private person.

4. K.S.A.1995 Supp. 75-6104(o) provides an exception for public property used or intended for recreation. Under the recreational use exception, a governmental entity or employee is not liable for any injury resulting from the use of any public property intended or permitted to be used as a park, playground, or open area for recreational purposes, unless the governmental entity or employee is guilty of gross and wanton negligence proximately causing such injury.

5. To constitute wantonness under the recreational use exception, the actor must indicate a realization of the imminence of danger and a reckless disregard or a complete indifference or an unconcern for the probable consequences of the wrongful act.

6. Proof of a willingness to injure is not necessary because a wanton act is something more than ordinary negligence but less than willful injury. Similarly, mere negligence on the part of a governmental entity is not sufficient to establish a compensable claim under K.S.A.1995 Supp. 75-6104(o).

7. Notice of a potentially dangerous situation is a factor in determining whether there was a realization of the imminence of danger.

8. Direct evidence showing the actor's actual knowledge of a realization of the imminence of danger is not required to show wantonness. Although circumstantial evidence of a realization of the imminence of danger may be used, the question should not be left to the conjecture of the jury.

9. The recreational use exception applies to school-sponsored, supervised activities.

10. A middle school playground is a public recreational area as contemplated by K.S.A.1995 Supp. 75-6104(o).

James P. Nordstrom and Kristine A. Larscheid, Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, for appellants/cross-appellees.

W.J. Fitzpatrick, Independence, for appellee/cross-appellant.

Before BRAZIL, C.J., MARQUARDT, J., and RICHARD M. SMITH, District Judge, Assigned.

MARQUARDT, Judge:

This is a personal injury action arising from a discus hitting Marcus J. Lanning during track practice. Jeff Anderson and the Board of Education of Unified School District No. 447 (School District) appeal from the district court's refusal to grant a directed verdict on the grounds there was not sufficient evidence upon which a reasonable jury could base a finding of gross and wanton negligence as required for liability under the recreational use exception of the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. See K.S.A.1995 Supp. 75-6104(o). Coach Anderson and the School District also appeal from the district court's rulings on exclusion of evidence, refusal to give an instruction, juror/attorney misconduct, and a confusing verdict form. Lanning cross-appeals the application of the recreational use exception.

On May 12, 1993, Lanning was struck in the head by a discus. The accident occurred during a track practice at Cherryvale Middle School. The practice was supervised by two coaches, Jeff Anderson and Chuck Stockton.

Lanning was a member of the relay team that had practiced on the day of the accident. After running laps at the end of practice, Lanning and the other members of the relay team walked toward the school, taking a sidewalk that went through the middle of the playground.

The discus throwers were practice throwing from home plate of the baseball field toward the remainder of the playground. The sidewalk that Lanning and the other members of the relay team took leads to the end of the basketball court nearest the baseball field. Lanning was hit approximately 80-90 feet from where the discus was thrown.

Randy Hugo, the student who threw the discus that hit Lanning, used the "spin" technique when throwing. With the spin technique, the thrower is facing away from where the discus is going prior to the time of release. While others were throwing, the remaining discus throwers were to keep a watch out to ensure that people were not within range of the throw.

There was conflicting testimony over whether the discus participants were instructed to throw the discus or just practice technique on the day of the accident.

After Hugo released the discus, he and the other discus throwers noticed the group on the sidewalk. The discus throwers yelled "duck" or "heads up." The yelling alerted the group of relay runners on the sidewalk; however, Lanning was hit on the head by the discus.

Lanning had been a gifted athlete. As a consequence of the accident, Lanning suffered various cognitive deficits, and his neurological surgeon recommended that he never again play football or other heavy contact sports.

At the time of Lanning's injury, Coach Stockton was working with the girls' relay team. When the boys' relay team finished their practice, Coach Anderson told them to run two laps and go to the locker room. Coach Anderson did not direct the relay team to take any particular sidewalk or route to the locker room. Coach Anderson then went to help Coach Stockton with the other runners. Coach Anderson did not see the students walking down the middle sidewalk prior to the accident.

The middle school track practice was normally held at the high school. The high school track is bigger than the middle school playground. Coach Anderson decided to have track practice at the middle school playground instead of the high school track because the high school track was muddy and was being lined in preparation for a meet the next day.

In the spring of 1993, the coaches had held discus practice at the middle school playground approximately 10 times without incident.

Gordon McBride, principal of Cherryvale Middle School, and Roy Griffin, athletic director, testified that they did not know that the coaches held discus practice at the middle school playground.

At the close of Lanning's evidence, defense counsel moved for a directed verdict on the grounds that there was not sufficient evidence to go to the jury on the question of gross and wanton negligence. The district court denied the motion.

The jury returned an 11 to 1 decision, finding both Coach Anderson and the School District guilty of gross and wanton negligence. The jury attributed 10 percent of the fault to Lanning, 40 percent of the fault to Coach Anderson, and 50 percent of the fault to the School District. The jury found Lanning's total damages to be $252,731.94. The district court entered judgment in favor of Lanning and against Coach Anderson in the sum of $101,092.78 and against the School District in the sum of $126,365.97. Costs of the action were also entered against the defendants.

Coach Anderson and the School District moved for a judgment notwithstanding the verdict, or in the alternative, for a new trial. Many of the arguments that are now the subject of this appeal were raised in this motion and the accompanying memorandum. Judge David L. Thompson orally denied the motion. Judge Thompson's judicial term was over the following Monday, and Judge Jack L. Lively entered a journal entry reflecting Judge Thompson's decision. Coach Anderson and the School District filed a motion for reconsideration, which was denied. The district court noted in its decision that a copy of the trial transcript was not provided for its review.

Coach Anderson and the School District argue that the district court erred in refusing to grant a directed verdict and that there was insufficient evidence for a finding of gross and wanton negligence.

The standard for review in either granting or denying a directed verdict is well established:

"In ruling on a motion for directed verdict pursuant to K.S.A.1992 Supp. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and, where reasonable minds could reach different conclusions based on the evidence, the motion must be denied and the matter submitted to the jury. This rule must also be applied when appellate review is sought on a motion for directed verdict." Hurlbut v. Conoco, Inc., 253 Kan. 515, 524, 856 P.2d 1313 (1993).

Generally speaking, the presence or absence of negligence in any degree should be left to the trier of fact. "Only when reasonable persons could not reach differing conclusions from the same evidence may the issue be decided as a question of law. [Citation omitted.]" Gruhin v. City of Overland Park, 17 Kan.App.2d 388, 392, 836 P.2d 1222 (1992) (evaluating the appropriateness of summary judgment on a gross and wanton negligence issue); see Vaughn v. Murray, 214 Kan. 456, 459-60, 521 P.2d 262 (1974).

Under the KTCA, governmental liability is the rule and immunity is the exception. Nichols v. U.S.D. No. 400, 246 Kan. 93, 94, 785 P.2d 986 (1990). The general rule, subject to exceptions, is that governmental entities and governmental employees acting within the scope of their employment are liable for damages to the same extent as a private person. K.S.A. 75-6103(a); Nichols, ...