Leahy v. School Bd. of Hernando County, 83-730

• Decision Date: 10 May 1984
• Docket Number: No. 83-730,83-730
• Citation: 450 So.2d 883
• Parties: 17 Ed. Law Rep. 1282 William J. LEAHY, Jr., etc., and Ina M. Foster, etc., Appellants, v. The SCHOOL BOARD OF HERNANDO COUNTY, Florida, Appellee.
• Court: Florida District Court of Appeals

Page 883

450 So.2d 883

17 Ed. Law Rep. 1282

William J. LEAHY, Jr., etc., and Ina M. Foster, etc., Appellants, v. The SCHOOL BOARD OF HERNANDO COUNTY, Florida, Appellee.

No. 83-730.

District Court of Appeal of Florida,

Fifth District.

May 10, 1984.

Dock Blanchard of Tucker, Brannen, Blanchard & Stillwell, P.A., Ocala, for appellants William J. Leahy, Jr., et al.

Joseph E. Johnston, Jr., of Joseph E. Johnston, Jr., P.A., Brooksville, for appellee.

ORFINGER, Chief Judge.

This appeal is from a directed verdict for defendant on the issue of tort liability in a case arising out of an injury resulting from a football drill. The plaintiffs, William J. Leahy and his guardian, appeal from the final judgment entered on the directed verdict, contending that the trial court erred in removing the case from the jury and that when the evidence and all reasonable inferences therefrom are viewed in a light most favorable to the plaintiff, there was substantial evidence upon which the jury could have found for the plaintiff. We agree and reverse for a new trial.

The testimony below showed that the appellant was a freshman attending spring practice for the Hernando High School football team. On May 1, 1979, the first day of practice, equipment was issued, but the appellant and several other freshmen did not receive helmets because the school did not have a sufficient number of the correct sizes available. When the available equipment was issued, no special instructions were given by any of the football coaches to those players who were not issued helmets and attached mouth guards regarding limitations on their participation in practice. (Helmets are also equipped with face guards that partially cover the face.) On the second day of practice, the players went out on the field for practice in whatever equipment they had been issued. There were approximately sixty students being supervised by Coach Palmer and three assistants who were in the vicinity of the stadium.

Several of the players were instructed to participate in an "agility" drill, and although the drill did not involve blocking or tackling, it did involve coming into contact with other players. No special precautionary instructions were given to the players who had no helmets or mouth guards relative to those players who had such equipment. Ten or twelve of the more experienced players (all with helmets) were instructed to get on their hands and knees and position themselves in a row. The rest of the players formed a line and approached the row one at a time. They were instructed to go up to each lineman, hit him on the shoulders with both hands, fall and roll on the ground, and then get up "as fast as possible" and go on to each subsequent lineman in the same manner. Although this was referred to by the coaches as a "no contact drill", by the very nature of it, some physical contact between the players was required. After the drill started, the coaches let it continue on its own and they watched from the sidelines.

Although other participants preceded him, the appellant was the first player without a helmet who attempted the drill. There was testimony that at this point the players had become more aggressive (they were "hitting harder," "getting rowdy," "knocking the people that were down back" and "digging in and getting a better hold"). The appellant came up to the first lineman on the row and when he started down to hit the lineman's shoulder pads as instructed, the lineman straightened his arms or raised his head and the appellant's face collided with the lineman's helmet. There was also testimony that the appellant's hands slipped off the lineman's shoulder pads before the impact. The appellant suffered facial injuries and his front teeth were shattered. Appellant presented expert testimony to the effect that no player should be permitted to participate in a drill like this without a helmet.

The appellee's motion for directed verdict alleged that the appellant had failed to establish by positive evidence any negligence on the part of the school board that would be actionable. The appellant submits, however, that the evidence supports at least four different theories of negligent behavior on the part of the school board:

(1) The failure to issue a helmet and/or have one available for plaintiff;

(2) The failure to issue any precautionary instruction relative to those players participating in the drill without helmets and mouth guards;

(3) Affirmatively allowing players without helmets and mouth guards to participate in a contact drill with players who did have such helmets;

(4) Not limiting the intensity of the players' activities during the drill at least as to those who had no helmets, once it became apparent that the drill was becoming aggressive.

Florida case law recognizes the general duty of schools, principals and teachers to adequately supervise students placed within their care. Rupp v. Bryant, 417 So.2d 658 (Fla.1982). "The genesis of this supervisory duty is based on the school employee standing partially in place of the student's parents." Id. at 666. See also, Benton v. School Board, 386 So.2d 831 (Fla. 4th DCA 1980); Barrera v. Dade County School Board, 366 So.2d 531 (Fla. 3d DCA 1979); King v. Dade County School Board of Public Instruction, 286 So.2d 256 (Fla. 3d DCA 1973), cert. denied, 294 So.2d 89 (Fla.1974).

The school board in the instant case owed a duty to properly supervise the activity, which was an approved school activity and one in which the school's employees had the authority to control the behavior of the students. ¹ Regarding school athletic activities, it has generally been held that:

The duty owed an athlete takes the form of giving adequate instruction in the activity, supplying proper equipment, making a reasonable selection or matching of participants, providing nonnegligent supervision of the particular contest, and taking proper post-injury procedures to protect against aggravation of the injury.

Annot., 35 A.L.R.3d 725, 734 (1971) (footnotes omitted) (emphasis added).

A directed verdict is proper only when no evidence has been presented which would support a verdict for plaintiff. National Car Rental Systems, Inc. v. Bruce A. Ryals Enterprises, Inc., 380 So.2d 529 (Fla. 5th DCA 1980); Budgen v. Brady, 103 So.2d 672 (Fla. 1st DCA 1958). In determining whether the appellant established a case sufficient to withstand a directed verdict we must address the question of whether there was evidence of a breach of the duty owed by the appellee which breach a jury could conclude was the proximate cause of the appellant's injury.

There was testimony at trial that although the football drill wherein the appellant was injured was characterized by the coach as a noncontact drill, he instructed the boys to line up one at a time and hit the other player on the shoulders, roll down on the ground, and then hit the next player. There was also testimony that the drill became progressively more aggressive or "rowdy" and the players were hitting each other harder. There was no testimony that any of the coaches attempted to lessen the intensity of the drill. Furthermore, the coach did not issue any warnings or statements regarding contact during drills, even though several of the players (those less experienced), including the appellant, had not been issued helmets and mouth guards due to the school's lack of a sufficient number of sizes. Because football helmets with their attached faceguards and mouthpieces are used as safety or protective devices, calculated to protect the player against head or facial injuries, the evidence that appellant was permitted to participate without a helmet was a sufficient basis upon which a jury could conclude that the school (through its employees) failed to exercise reasonable care under the circumstances for the protection of the appellant.

There was also testimony indicating that the injury to the appellant was a foreseeable consequence of the failure to provide the appellant with a helmet and mouth guard, of the failure to give cautionary instructions regarding contact (especially regarding the fact that some players had helmets while others did not) and of the failure to limit the progressive intensity of the drill under such circumstances. Coach Palmer testified that under ideal circumstances, all players wear the same equipment (presumably when the school provides enough equipment of sufficient sizes). He also acknowledged that the players are encouraged to do the drills at a fast pace (which increases the risk of contact) and that he was aware that the players...