Lueck v. City of Janesville, 227

• Decision Date: 08 February 1973
• Docket Number: No. 227,227
• Citation: 204 N.W.2d 6,57 Wis.2d 254
• Parties: Terry LUECK et al., Appellants, v. CITY OF JANESVILLE et al., Respondents.
• Court: Wisconsin Supreme Court

Page 6

204 N.W.2d 6

57 Wis.2d 254

Terry LUECK et al., Appellants, v. CITY OF JANESVILLE et al., Respondents.

No. 227.

Supreme Court of Wisconsin.

Feb. 8, 1973.

Rehearing Denied April 20, 1973.

Campbell, Brennan, Steil & Ryan, Janesville, for appellants.

Eli Block Law Offices, Janesville, for respondents.

BEILFUSS, Justice.

Although the defendants-respondents (City of Janesville and Sorenson) in their motions after verdict moved the court to change the verdict answer concerning Sorenson's negligence from 'yes' to 'no,' and in their brief herein have made a passing reference to his negligence, the major thrust of both briefs is to the question of causation. The plaintiffs-appellants contend that Sorenson's negligence should be held to be a cause of the accident and injuries as a matter of law or, in the alternative, a new trial should be ordered in the interest of justice.

From our examination of the entire record we feel compelled to consider whether Sorenson was negligent.

We are mindful of the often stated rule that if there is any credible evidence under any reasonable view or any reasonable inferences derived therefrom that support a finding of fact by the jury that neither trial court nor this court should change that answer. Conversely it can be said if there is not such evidence either court can change the answer as a matter of law. ³

In addition to the definition of negligence or failure to exercise ordinary care commonly used in jury cases, ⁴ the trial court instructed the jury as to the duties of Sorenson as follows:

'I will now instruct you with regard to the duties of a teacher; and this refers to Question 1, inquiring about whether Ted Sorenson was negligent. You are instructed that a teacher occupies a position in relation to his pupils comparable to that of a parent to children. He has the duty to instruct and warn pupils in his custody of any dangers which he knows or in the exercise of ordinary care ought to know are present in the gymnasium; and to instruct them in methods which will protect them from these dangers, whether the danger arises from equipment, devices, machines, or other causes. A failure to warn students of such danger or to instruct them in the means of avoiding such danger is negligence. In arriving at your determination as to whether or not the defendant Ted Sorenson exercised ordinary care you may weigh and consider the age, intelligence, and experience which he knew or ought to have known that the plaintiff and other students in the class possessed. You may further weigh and consider the responsibilities which have been placed upon the defendant Ted Sorenson by his employment, such as the curriculum he was required to carry out, the daily schedule which was imposed upon him, the number of pupils assigned to him in the class, the size and arrangement of the gymnasium, and the equipment, devices, and other objects therein. If you become satisfied by the greater weight of the credible evidence to a reasonable certainty that the defendant failed to exercise that degree of supervision, instruction, and care which an ordinarily prudent physical education teacher would have maintained over the pupils or furnished to the pupils, then you will answer the question yes. If you are not so satisfied, you will answer the question no.'

These instructions were not objected to at the trial nor are they challenged on appeal. We believe they fully and fairly advise the jury as to Sorenson's duties toward the plaintiff Terry consistent with the evidence in the case.

Although the complaint has additional allegations of negligence on the part of Sorenson, they find no support in the evidence; the basic claim of the plaintiffs is that Sorenson's negligence consisted of his failure to properly instruct and supervise his students.

Plaintiffs maintain that '. . . such negligence culminated in the most glaring item of negligence in the case, to-wit, defendant's failure to provide a spotter for the plaintiff, Terry Lueck, . . . so as to prevent his injury.' We do not believe the evidence supports this contention. Plaintiffs seek to have the court charge Sorenson with an unreasonably high standard of care. That is, notwithstanding the present duty and standard of care imposed by law, Sorenson should have the additional duty to make sure every student who performs on any gymnastic apparatus while in class has a designated and specifically assigned spotter to spot, assist and prevent the possible fall of the performer at any time when working on an activity therein. To support this proposition plaintiffs offer only Dr. De Carlo's expert opinion based on a hypothetical question. His opinion with respect to that hypothetical does not establish that this contended standard of care should be imposed against Sorenson. The question was based in part on the facts of this case, but is also assumed facts not in evidence, included...