Morgan v. Great Falls School Dist. No. 1, 99-319.

• Decision Date: 01 February 2000
• Docket Number: No. 99-319.,99-319.
• Citation: 2000 MT 28,298 Mont. 194,995 P.2d 422
• Court: Montana Supreme Court
• Parties: Kim MORGAN, a minor; David Morgan and Theresa Morgan, parents and natural guardians of Kim Morgan, Plaintiffs and Appellants, v. GREAT FALLS SCHOOL DISTRICT NO. 1, Defendant and Respondent.

995 P.2d 422

2000 MT 28

298 Mont. 194

Kim MORGAN, a minor; David Morgan and Theresa Morgan, parents and natural guardians of Kim Morgan, Plaintiffs and Appellants, v. GREAT FALLS SCHOOL DISTRICT NO. 1, Defendant and Respondent.

No. 99-319.

Supreme Court of Montana.

Submitted on Briefs December 9, 1999.

Decided February 1, 2000.

Joseph C. Engel, III, P.C., Attorney at Law; Great Falls, Montana, For Appellants.

William J. Gregoire, Smith, Walsh, Clarke & Gregoire; Great Falls, Montana, For Respondent.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 The Plaintiffs, David and Theresa Morgan, brought this action in the District Court for the Eighth Judicial District in Cascade County on behalf of their minor daughter, Kim Morgan. They alleged that the Defendant, Great Falls School District No. 1, through the acts of its employee, Patricia Richard, had negligently supervised Kim during recess, and that as a result, Kim was injured. Following a trial by jury, the jury found no negligence on the part of the Defendant. The Plaintiffs filed a motion for a new trial which the District Court denied. Plaintiffs appeal from the judgment in favor of the Defendant. We affirm the judgment of the District Court.

¶ 2 The sole issue on appeal is whether there was sufficient evidence to support the jury's verdict.

FACTUAL BACKGROUND

¶ 3 In November 1995, nine-year-old Kim Morgan was a special education student at Sacajawea Elementary School in Great Falls, Montana. Kim suffered from mental retardation as a result of a brain disease and was prone to experience seizures. Kim had recently returned to her special education classes following brain surgery which she underwent in August 1995.

¶ 4 On November 8, 1995, the special education teacher, Stephanie Powell, was absent, and the special education assistant, Patricia Richard, substituted as the special education teacher. During recess, Richard spotted Kim on the "high tower," a piece of playground equipment which has a platform several feet off the ground and a metal pole on which the children slide down to the ground. According to Richard's testimony, she saw Kim slide down the pole and at a point two or three feet from the ground, Kim let go and fell to the ground. As a result of her fall, Kim suffered a fracture of her left tibia. ¶ 5 There were approximately 11 students in the special education class at Sacajawea Elementary School. Parents of the special education students were allowed to place restrictions on their children's use of equipment, including playground equipment; however, the Morgans had not restricted Kim's use of the equipment. Ms. Powell had adopted her own rule that the special education students could not play on the high tower.

¶ 6 At the time of Kim's accident, there were two adults, Patricia Richard and Carrie Holden, assigned to supervise the special education students while at recess. Additionally, Donella Thompson was supervising the 100 regular education students who were also on the playground for recess at the time of Kim's accident. Among the 11 special education students at recess, 5 of the students, including Kim, were low functioning and required close supervision. Kim's Individual Evaluation Plan, prepared by the school in March 1995, stated that Kim "requires close supervision on the playground and in and out of the classroom."

¶ 7 On August 20, 1997, the Morgans filed a complaint on behalf of their daughter Kim, alleging that the Defendant's employee, Patricia Richard, had failed to properly supervise Kim while on the playground and therefore, had acted negligently. In February 1999, the issue of Richard's negligence was tried to a jury. Richard was the only eyewitness to Kim's accident and she testified that she did not see Kim on the high tower until she was already sliding down the pole and as a result there was nothing that she could do but watch Kim slide down the pole. The jury returned a verdict in favor of the Defendant. It found Richard had not acted negligently. On March 10, 1999, the Plaintiffs filed a motion for a new trial, based on the contention that there was not substantial credible evidence to support the jury's verdict. Following a hearing to consider the Plaintiffs' motion, the District Court denied Plaintiffs' motion for a new trial. Plaintiffs now appeal the jury's verdict and the District Court's denial of their motion for a new trial.

STANDARD OF REVIEW

¶ 8 In Lee v. Kane (1995), 270 Mont. 505, 893 P.2d 854, this Court discussed our standard of review of a jury verdict in a civil case:

Our scope of review of jury verdicts is necessarily very limited. This Court will not reverse a jury verdict which is supported by substantial credible evidence. This Court has defined substantial credible evidence as evidence which a reasonable mind might accept as adequate to support a conclusion. The evidence may be inherently weak and conflicting, yet it may still be considered substantial. It is well established that if the evidence is conflicting, it is within the province of the jury to determine the weight and credibility to be afforded the evidence. Finally, upon reviewing a jury verdict to determine if substantial credible evidence exists to support the verdict, this Court must view the evidence in the light most favorable to the prevailing party.

Kane, 270 Mont. at 510-11, 893 P.2d at 857.

¶ 9 Moreover, in Sandman v. Farmers Insurance Exchange, 1998 MT 286, 291 Mont. 456, 969 P.2d 277, we stated the following:

[I]n our review of jury verdicts in civil cases, we have stated that the prevailing party is entitled to any reasonable inference that can be drawn from the facts which are proven; that we do not decide whether the verdict was correct or whether the jury made the right decision; that we will not lightly overturn the verdict of a finder of fact, especially a jury; that we will not disturb the jury's findings unless they are inherently impossible to believe; that the test of substantial credible evidence allows for reversal only if there is an absence of probative facts to support the verdict; that substantial evidence consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance; and, that in order to rise to the level of substantial evidence, the evidence must be greater than trifling or frivolous.

Sandman, ¶ 41 (internal citations omitted).

DISCUSSION

¶ 10 Was there sufficient evidence to support the jury verdict? ¶ 11 The Plaintiffs argue that the evidence was not sufficient to support the jury's verdict that the Defendant's employee, Patricia Richard, was not negligent. The Plaintiffs contend that there were two dispositive duties: (1) the duty to provide close supervision of Kim; and (2) the duty to keep the special education students off the piece of playground equipment known as the high tower. The Plaintiffs argue that based on the trial testimony of Richard, the jury should have found that Richard was either negligent because she breached her duty to provide close supervision of Kim or because she breached her duty to not allow a special education student on the high tower. In other words, they contend that Richard either allowed Kim to play on the high tower, or Richard was not closely supervising Kim and she was able to climb onto the high tower unnoticed.

¶ 12 At trial, Richard, the only eyewitness to Kim's accident, testified that the high tower was "off limits for all of our [special education] children." She further testified that she did not see Kim climbing up the high tower and that the first time she noticed Kim on the high tower was "when she was sliding down the pole." Richard also testified that "I did not allow her to go on the high tower. She was up there in just a matter of seconds. And we had other children to watch. She was not the only child that we had to watch." She gave the following illustration of her responsibilities:

I was watching all the children ... but there were about five of them that needed a lot of special watching. We had a boy in a wheelchair that I mentioned. And we had another child that was autistic and used to head bang against the school building and against poles ... and we had to watch him closely so he didn't do that and injure himself. There was another child who used to instigate things, she'd tease him and get him going and he would get upset and do those....

Some children would sometimes sit down and wet their pants. The problem is a behavior problem. We had another child that had brain surgery that had seizures. She wore a helmet. We had to watch her closely. She also liked to get hold of the wheelchair if we weren't watching closely and try to push it. We tried to always have the wheelchair with the brakes on so she could not do that. But sometimes this child would take the brakes off and move around the playground.

He needed to move around also to get exercise with his arms. He like to shoot baskets I used to toss the ball around to get some exercise ... those were mainly the ones that needed close supervision other than Kim.

There was no allegation in the complaint or pretrial order that the Defendant was negligent for having inadequate staff on the playground.

¶ 13 The jury was instructed as follows:

Every person is responsible for injury to the person of another, caused by his negligence. Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. A person is negligent if he fails to act as an ordinarily prudent person would act under the circumstances.

¶ 14 Because we are limited in our review of the jury's verdict, we may only consider whether or not the verdict was supported by substantial evidence. This Court has defined substantial credible evidence as evidence which a reasonable mind might accept as adequate to support a conclusion. See Sandman, ¶ 41. Based on Richard's testimony that she did not purposely allow Kim to play on the high...