Norman v. Turkey Run Community School Corp.

• Citation: 274 Ind. 310,411 N.E.2d 614
• Decision Date: 28 October 1980
• Docket Number: Nos. 1-180A-1,1080,s. 1-180A-1
• Parties: Deborah NORMAN b/n/f, Raymond Norman, Raymond Norman and Eva Norman, Appellants, v. TURKEY RUN COMMUNITY SCHOOL CORPORATION, Appellee. S 403.
• Court: Supreme Court of Indiana

Page 614

411 N.E.2d 614

274 Ind. 310

Deborah NORMAN b/n/f, Raymond Norman, Raymond Norman and Eva

Norman, Appellants, v. TURKEY RUN COMMUNITY SCHOOL CORPORATION, Appellee.

Nos. 1-180A-1, 1080 S 403.

Supreme Court of Indiana.

Oct. 28, 1980.

[274 Ind. 311] Buchanan & Buchanan, Lebanon, Williams & Williams, Covington, for appellants.

Sacopulos, Crawford & Johnson, Gus Sacopulos and R. Steven Johnson, Terre Haute, for appellee.

ON PETITION TO TRANSFER

PIVARNIK, Justice.

This cause comes to us on a transfer petition from the Court of Appeals, First District. The Fountain Circuit Court entered summary judgment in favor of Turkey Run Community School Corporation on October 9, 1979. Appellants Deborah Norman b/n/f Raymond Norman, Raymond Norman and Eva Norman appealed to the Court of Appeals which reversed the trial court and remanded the cause to the trial court for further proceedings. The Court of Appeals decision was by way of an unpublished memorandum opinion, Norman v. Turkey Run Community School Corp., No. 1-180-A-1 (Ind.App. April 16, 1980).

The issue raised here is whether the trial court was presented with any genuine issue of a material fact, the existence of which would have made the entry of summary judgment under Ind.R.Tr.P. 56 inappropriate.

As revealed by the pleadings, answers to interrogatories, depositions and affidavits before the trial court, the facts show that on September 2, 1976, Deborah Norman, a seven-year-old second grade student attending Turkey Run Elementary School, was injured when she collided with a six-year-old first grade student during the school's morning recess. Both students were running across the playground and both were not looking where they were running at the time they collided. Ten teachers were assigned to playground duty at this recess. The teachers were seven classroom teachers, a music teacher, a librarian and a speech teacher. This number exceeded the normal supervision requirements for recess periods. Seven or eight of the ten teachers assigned to the general supervision of the playground were present at the time the collision occurred. All ten were present some time during the recess period. At the time of the collision one had gone to the restroom and one was helping a child who had scraped his skin. These teachers were supervising one hundred eighty-eight children. There were two first grade classes, three second grade classes, one third grade class and some special education students. Two teachers were close to the children when they ran into each other. Gayle Vaught, a teacher, stated that she "just looked up and they ran into each other." She said she was unable to warn them. Sue North, another teacher, initially recalled the accident but later stated that she did not see the accident. The trial court found that the accident was instantaneous and that there was no opportunity for the teacher to warn the children. It also found that the School corporation discharged its duty to exercise reasonable care for Deborah Norman's well being.

The majority opinion from the Court of Appeals initially cites Stuteville v. Downing, (1979) Ind.App., 391 N.E.2d 629 at 630-31 for the standards for the granting of summary judgment. That opinion states as follows:

"Ind. Rules of Procedure, Trial Rule 56(C) states that summary judgment is appropriate only when 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' 'A fact is material if it tends to facilitate resolution of any of the issues either for or against the party having the burden of persuasion on that issue.' Brandon v. State, (1976) 264 Ind. 177, 180, 340 N.E.2d 756, 758. See also Goethals v. DeVos, (1977) Ind.App., 366 N.E.2d 673. 'However, despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact that is dispositive of the litigation.' Hayes v. Second National Bank of Richmond, (1978) Ind.App., 375 N.E.2d 647, 650 (citations omitted). See also Letson v. Lowmaster, (1976) (168) Ind.App. (159), 341 N.E.2d 785. In other words, a factual issue is 'material' if it bears on the ultimate resolution of relevant issues, while a factual issue is 'genuine' if it is not capable of being conclusively foreclosed by reference to undisputed facts."

The burden is on the proponent of the motion to show that no genuine issues of fact exist, so in deciding whether to grant a summary judgment, facts set forth in the opponents' affidavit are taken as true, and depositions, admissions, answers to interrogatories, and testimony are liberally construed in favor of the opponent. Cates v. Jolley, (1978) Ind., 373 N.E.2d 877; Swanson v. Shroat, (1976) Ind.App., 345 N.E.2d 872.

The Court of Appeals determined that it would have been possible to draw inferences from the conduct and testimony of the teachers, Vaught and North, that they were inattentive in that they either failed to observe the students or failed to warn them after they observed a dangerous situation. The court determined that this was a genuine issue of material fact which existed and which should have barred summary judgment. It appears from our examination of the record in this cause that there is no genuine issue as to the material facts to be found in the pleadings, depositions, answers to interrogatories, or in the affidavits filed before the trial court in the summary judgment hearing.

The following facts are undisputed. Turkey Run Elementary School was a new facility with students enrolled from three old closed elementary schools. Playground equipment had not yet been installed and the playground area was covered with asphalt material. Deborah Norman was injured on the first day of school on the school playground at the 9:50 a.m., recess. Seven or eight teachers were present supervising approximately 188 students. The collision occurred about five minutes after the recess began on the playground area. A supervised recess period is generally accepted as a normal school procedure for elementary children. Running and playing tag are normal recess activities of young children. No oral or written directive was given to teachers to prohibit children from running on the playground during a supervised recess. There were no abnormal, dangerous or extra-hazardous conditions present prior to the collision. The only teacher who actually saw the collision, Gayle Vaught, testified that neither Deborah or the other student were looking where they were going; they were both looking behind them. They ran into each other and bumped heads. She looked up as they came together and she did not have time to warn them.

The basic elements of negligence and a discussion of their meaning in the context of a relationship of student and school personnel were fully set out in Miller v. Griesel, (1974) 261 Ind. 604, 308 N.E.2d 701. That case involved a fifth-grade student who brought an action alleging negligence against his teacher, the principal of his school and the school corporation, for injuries sustained during a recess period. The student was injured when, during a lunch hour period, his teacher was absent from the room. One of the pupils had a detonator cap which exploded when it was touched to two wires to batteries. The plaintiff suffered permanent damage to his eyes. In considering the legal standards to be applied this Court stated:

"In Indiana the tort of negligence is comprised of three elements: (1) a duty on the part of defendant in relation to the plaintiff; (2) failure on the part of defendant to conform his conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff resulting from that failure. Neal v. Home Builders Inc. (1953) 232 Ind. 160, 111 N.E.2d 280; Bailey v. L. W....