Miller v. Griesel

• Decision Date: 22 March 1974
• Docket Number: No. 374S69,374S69
• Citation: 308 N.E.2d 701,261 Ind. 604
• Parties: William MILLER b/n/f Kathlyn Miller, Appellants, v. Dale H. GRIESEL et al., Appellees.
• Court: Indiana Supreme Court

Page 701

308 N.E.2d 701

261 Ind. 604

William MILLER b/n/f Kathlyn Miller, Appellants, v. Dale H. GRIESEL et al., Appellees.

No. 374S69.

Supreme Court of Indiana.

March 22, 1974.

Thomas H. Singer, Lysohir & Singer, South Bend, for appellants.

Patrick J. Dougherty, Valparaiso, for appellees.

DeBRULER, Justice.

Plaintiff, William Miller, brought an action alleging negligence against his Fifth Grade teacher, the Principal of his grade school and the School City of East Gary as a result of injuries sustained by him during a recess period at the school. He conteded that the several defendants here failed in their overall duty to use reasonable and due care to provide adequate supervision for the children of the school, and more particularly, that defendant school corporation had failed to institute adequate rules and regulations in order to insure adequate supervision or, if such regulations were issued, failed to implement them.

At the close of the plaintiff's case all three defendants moved for judgment on the evidence pursuant to TR. 50, IC 1971, 34--5--1--1, and the trial court granted the defendants' motion. Miller appealed to the Court of Appeals, Third District, which affirmed the trial court in an opinion found at 297 N.E.2d 463. He has now filed his petition to transfer with this Court. The petition to transfer is granted and we likewise affirm the decision of the court below.

The evidence produced by the plaintiff at the trial showed that on November 27, 1967, he was a student in the Fifth Grade at the Virgil I. Bailey School in East Gary. The schedule in effect at that time required pupils to eat their lunches between 11:30 a.m. and 11:50 a.m., following which there was a recess period until 12:20 p.m. The children were required to eat in classrooms but could either go outside or remain in the classrooms during the recess period.

The Board of Trustees of the School City of East Gary had adopted administrative guidelines which made the principal of each school, 'the responsible head and professional leader of the school.' School Board and Administrative Manual of School City of East Gary, § 2.33(2). Pursuant to this rule the principal of the Virgil Bailey School had issued a verbal directive that required teachers to remain in their respective classrooms with the children during the lunch period, but allowed them to leave during the recess period if the teacher could get someone to 'look in on' the pupils remaining in the rooms.

On this particular day the teacher stayed in the room for the lunch period and then left the room for the recess period after she had requested another teacher to periodically look in on the children who were going to stay in the classroom. There were approximately ten fifth graders who remained in the room in order to work on a salt relief map the class was constructing as part of a Social Science project. During the teacher's absence one of the students, Guy Wedge, produced a tackle box about a foot long and five or six inches wide. He offered to trade the box to the plaintiff Miller in return for some pencils and Miller approached Wedge's desk, which was located close by the teacher's desk, in order to inspect the box. Wedge opened the box and took out two batteries and a third object which was unfamiliar to Wedge, Miller and some other students who had gathered around the desk. Miller thought it looked like a 'Christmas tree light' with two wires extending from it. The 'Christmas tree light' was subsequently identified as a detonator cap. Miller touched the two wires to the batteries to see if the 'light' was working and an explosion occurred inflicting shrapnel like wounds to the plaintiff's arms, torso, face, groin and left eye. Medical testimony at the trial indicated that the injury to the eye was of some seriousness and would result in permanent damage or blindness. Although there was no evidence elicited at the trial as to how long the teacher was actually away from the room before the explosion took place, there was testimony indicating that a teacher from another room had checked on the students during the regular teacher's absence.

The Court of Appeals affirmed the trial court's granting of the defendants' motion on two grounds: (1) That the teacher's decision to leave or remain during the recess period was 'discretionary' as opposed to 'ministerial' and thus the defendants here were protected from liability by the doctrine of sovereign or governmental immunity. (2) That the reasonableness of the School's rule concerning a teacher's absence during the recess period was a question of law to be decided exclusively by the court rather than the jury and the trial court could have legitimately found that this rule was reasonable. We disagree with the treatment of these two issues by the Court of Appeals, but affirm that court's finding that the defendants' TR. 50 motion was properly granted by the trial court.

Initially, the Court of Appeals should not have utilized the doctrine of governmental immunity to affirm the holdings of the trial court. Sovereign or governmental immunity is a complete bar to an action which may be interposed by a government defendant and will prevent liability even in a situation where tortious conduct might otherwise be clearly established. As a legal bar it should be specifically pleaded and established by the party wishing to assert it as a defense. TR. 9(a); TR. 8(c).

'When the state becomes a suitor in any of the courts, it is as much bound by the laws of the land, by the rules of pleading and practice and by the decisions and judgments of the courts, inferior or superior as any other suitor.' State ex rel. Hord v. Bd. of Comm. of Wash. Cty. (1885), 101 Ind. 69 at 74.

A failure to plead and establish such a bar to a suit can be deemed a waiver.

In this case there is nothing contained in any of the pleadings, the pretrial order, the transcript of the evidence, the briefs in the Court of Appeals or the Briefs concerning the Petition to Transfer in this Court which would indicate that any of the defendants were relying on government immunity as a bar to this suit by the plaintiff. ¹ Whenever such a defense plays no part in the trial court level litigation it would clearly be improper for an appellate court to raise it for the first time on appeal. J. I. Case Co. v. Sandefur (1964), 245 Ind. 213, 197 N.E.2d 519. Moreover, since our decision in Campbell v. State (1972), Ind., 284 N.E.2d 733, restricts the blanket immunity once available to a government defendant, it is evident that the question of whether the defense is applicable at all may well turn on the facts of a case and the specific position, responsibilities and duties of the particular defendants. It is improper, therefore, to raise such a devastating bar to an action without giving the plaintiffs the opportunity to litigate the question and raise legal and factual contentions concerning it.

We also disagree with the Court of Appeals' holding that in an action alleging a negligent failure to superivise grammar school pupils, the questions of whether or not a rule existed concerning supervison, and the reasonableness of that rule, are questions of law to be decided exclusively by the trial court, and, if found in favor of the defendants, are ultimately determinative of the cause of action. The cases cited by defendants for this proposition fall into two categories which must be distinguished from the case at hand. The first line of cases hold that the reasonableness of a school regulation is a question of law when the regulation is being challenged as a violation of the constitutional principles of either due process or equal protection. School City of Evansville v. Culver (1932), 94 Ind.App. 692, 182 N.E. 270; Crews v. Cloncs, 303 F.Supp. 1370 (S.D.Ind.1969). When confronted with assertions concerning the constitutionality of a school regulation it is beyond question that the reasonableness of the rule is a question of law to be decided exclusively by a court rather than a jury, but the cases asserting this principle are not legitimate precedent for defining the role of a court in a vastly different common law negligence action.

The second line of cases referred to, on the other hand, do involve tort actions and indeed state the proposition that the question of the reasonableness of a school rule is a question of law to be decided by the court rather than a jury. Fertich v. Michener (1887), 111 Ind. 472, 11 N.E. 605, 14 N.E. 68; Adams v. Schneider (1919), 71 Ind.App. 249, 124 N.E. 718. However, it is apparent that this generally stated proposition is a collateral consideration in the overall question in these cases of the existence of governmental immunity and under what circumstances it might stand as a bar to the action. ² As pointed out above that defense has not been interposed in these proceedings by the government defendants and decisions should not be framed on its principles.

Whenever governmental immunity is inappropriate or is not raised in defense of allegedly negligent official conduct, there is no reason why court...