Morris v. Ortiz

• Decision Date: 16 February 1968
• Docket Number: No. 8832--PR,No. 1,1,8832--PR
• Citation: 437 P.2d 652,103 Ariz. 119
• Parties: , 35 A.L.R.3d 747 James L. MORRIS and Catherine W. Morris, husband and wife, James Fred Morris, a minor by his next friend and father, James L. Morris, Appellants, v. Robert M. ORTIZ and School Districtof Pima County, Arizona, Appellees.
• Court: Arizona Supreme Court

Page 652

437 P.2d 652

103 Ariz. 119, 35 A.L.R.3d 747

James L. MORRIS and Catherine W. Morris, husband and wife, James Fred Morris, a minor by his next friend and father, James L. Morris, Appellants, v. Robert M. ORTIZ and School District No. 1 of Pima County, Arizona, Appellees.

No. 8832--PR.

Supreme Court of Arizona, In Banc.

Feb. 16, 1968.

Rehearing Denied March 12, 1968.

Holesapple, Conner, Jones, McFall & Johnson, Tucson, for appellants.

May, Dees & Newell, Tucson, for appellee Ortiz.

Chandler, Tullar, Udall & Richmond, Tucson, for appellee School District No. 1.

STRUCKMEYER, Justice.

Appellants James L. Morris and Catherine W. Morris, his wife, brought this action on behalf of their minor son, James Fred Morris, for personal injuries suffered while he was attending an auto mechanics class at the Tucson High School under supervision of Robert M. Ortiz, appellee herein. After trial the court directed the jury to return a verdict in favor of appellees and against appellants, and judgment was entered in conformity with the verdict. From that judgment and from the order denying appellants' motion for a new trial, this appeal has been perfected. Opinion of the Court of Appeals, 3 Ariz.App. 399, 415 P.2d 114, vacated.

It is, of course, well settled in this jurisdiction that on a motion for a directed verdict the defendant admits the truth of whatever competent evidence the plaintiff has introduced and all reasonable inferences that can be drawn therefrom. See, e.g., Figueroa v. Majors, 85 Ariz. 345, 338 P.2d 803. We, therefore, take as literal the testimony of appellant James Fred Morris and examine it to determine whether any negligence is shown or can possibly be reasonably inferred, bearing in mind that appellants urge that Ortiz was negligent in failing to supervise properly the activities of other students at the time of the injuries to James Fred Morris (hereafter called Morris).

Morris testified that Ortiz wanted the class to dismantle an automobile and prepare a cut-a-way view of it. The class of twenty-two students was divided into groups of four and five and Morris' group cut off the top which was placed on the floor. An attempt was made to bond the top in the middle, preparatory to taking it outside and placing it on a scrap pile. Several attempts were made to bend the top by jumping on it without success.

Appellee Ortiz testified that at this point he came over and said, 'It's too bad, but it can't be bent. Take it out and dump it out in the area in the back.' Seemingly, it was then decided by this group of students that they would make another effort to bend the top for, as Morris testified:

'It was decided that one boy was going to stand on the top in the middle and we were going to try to lift it up to try to bend it over.'

Then,

'And we lifted it up and it didn't do anything, and another boy, I believe jumped off the back bumper onto the top.

'* * * and it cut my hand.'

Morris further testified in this fashion:

'Q * * * you were trying to lift it up?

'A Yes.

'Q And bend it?

'A Yes.

'Q And then someone apparently jumped off the car onto the top?

'A Yes.

'Q And who was that boy?

'A Bill Gillmor.

'Q How did you learn that he had done that?

'A Well, as he did it I saw him do it.

'Q He was actually in the air when you saw him?

'A Well, he actually his it. I mean, when he started to go down I looked up.

'Q. If you had had any idea that he intended to jump on it you would not have held the car top in the way you held it?

'A Correct.

'Q And you just didn't have time enough to let go?

'A No.

'Q You realized, didn't you, that it would be dangerous if the boy on top had jumped or somebody had jumped on the top while you were holding that jagged edge?

'A I realize it would have been, but at the time nobody had planned to jump.

'Q What plan did you have?

'A It was merely for the boy to stand on it and us to try to lift up the other end to bend the middle using him as a weight.'

Ortiz was close by in the same general area instructing another or other students concerning the operation of some machinery. Although there is a suggestion that Ortiz was watching, or was in a position to see, it is uncontradicted that he, like Morris, was unaware that Gillmor intended to jump. Consequently, the only inference is that Gillmor's act was wholly unexpected.

Negligence is, of course, the failure to act as a reasonable and prudent person would act in like circumstances. Alires v. Southern Pacific Co., 93 Ariz. 97, 378 P.2d 913. The test of negligent conduct is what a reasonable prudent person would or would not do under the circumstances, Mills v. Charles Roberts Air Conditioning Appliances, 93 Ariz. 176, 379 P.2d 455, and the principle is too well established for quibbling 'that before liability may be imposed for an act (or the failure to act), the prevision of a reasonable person must be able to recognize danger of harm to the plaintiff or one in plaintiff's situation.' Tucker v. Collar, 79 Ariz. 141, 146, 285 P.2d 178, 181. Appellants do not point out precisely what specific act of negligence arising out of the general charge of failure to supervise which they rely upon. Assuming that Ortiz was watching when Morris lifted the automobile top in an effort to 'bend it', we are still at a loss here, in such a simple fact situation, to imagine how the prevision of this school teacher, as a reasonable man, could have been such as to recognize the danger of harm.

To put it another way, to constitute actionable negligence the defendant must owe a duty to the plaintiff, the breach of which results proximately in plaintiff's injury. Crouse v. Wilbur-Ellis Co., 77 Ariz. 359, 272 P.2d 352. So, the question which must be answered is, 'What duty did Ortiz owe as the supervising instructor, the breach of which resulted in Morris' injury?' To hold that Ortiz had to anticipate Gillmor's act and somehow circumvent it is to say that it is the responsibility of a school teacher to anticipate the myriad of unexpected acts which occur daily in and about schools and school premises, the penalty for failure of which would be financial responsibility in negligence. We do not think that either the teacher or the district should be subject to such harassment nor is there an invocable legal doctrine or principle which can lead to such an absurd result.

Appellant suggests that Ortiz was derelict in failing to appoint a group leader. There is no evidence that it is necessary or even desirable to appoint group leaders in shop classes such as this. Irrespective, it is but the sheerest speculation to urge that the appointment of a group leader would have led to the anticipation of Gillmor's unexpected act or could have possibly circumvented it. Such gossamer speculation is the stuff from which dreams are made and not the foundation stone for an action in negligence. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253.

There are numerous authorities which set forth the rule appropriate to this type of situation. In Luna v. Needles Elementary School Dist., 154 Cal.App.2d 803, 316 P.2d 773; 86 A.L.R.2d 489, 550n., a child lost a finger because it was caught in the school gate. The complaint alleged that the defendant district and its employees were negligent in conducting and supervising the school. The plaintiff's teacher was in the school house and no teacher was present in the school yard. The Court said:

'The standard of care required of any officer or employee of such a school is that which a person of ordinary prudence, charged with his duties, would exercise under the same circumstances. (Citation.) * * * There is no evidence that would justify the inference that this teacher should reasonably have expected not only that this boy would climb this wall but that his hand would slip at the very moment another boy was moving the gate. (Citation.) It was encumbent upon the appellants to produce evidence showing some defective condition in this gate, or evidence on the matter of supervision which would justify an inference that there was a failure in that respect. * * * Under the circumstances shown by the record the motion for nonsuit was properly granted.' 316 P.2d at 775, 776.

In Wright by Murphy v. City of San Bernardino High School Dist., 121 Cal.App.2d 342, 263 P.2d 25; 86 A.L.R.2d 489, 555n., the eye of a 16-year old high school junior was severely damaged when he ran into the line of flight of a tennis ball which had been thrown and which was to have been hit with a tennis racket by another class member. Defendant's motion for judgment of non-suit was granted and the plaintiff appealed, contending 'that the evidence was sufficient to require that the issues of negligence and proximate cause be submitted to the jury; that the respondent was under a duty to supervise the boys of this class * * *.' The Court said, in affirming the lower court's judgment:

'The element of danger arose only from the fact that Wright wore rimless glasses, and because of his sudden action in running into another field of play of which he was aware. It cannot reasonably be inferred that this act was one which should have been anticipated in advance. And the time between Wright's sudden act the injury was so short that the teacher, if present, would have had no opportunity to recognize a new hazard in time to have taken any action to prevent the injury. If it be assumed that any negligence appears, the evidence would not support the conclusion that it was the proximate cause of the injury.' 263 P.2d at p. 28.

In reversing a judgment in favor of a plaintiff against the Board of Education of the City of New York, Conway v. Board of Education of City of New York, 11 Misc.2d 162, 171 N.Y.S.2d 533, under the factual situation that the plaintiff had her fingers caught in a door jamb and was thrown back by several unruly and scuffling children just as the door of the class room was being closed, the Court said:

'True, negligence...