School City of Gary v. Claudio

• Decision Date: 15 December 1980
• Docket Number: No. 3-579A145,3-579A145
• Citation: 413 N.E.2d 628
• Parties: SCHOOL CITY OF GARY, Appellant (Defendant Below), v. Alfonso R. CLAUDIO b/n/f Pedro Claudio and Pedro Claudio, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 628

413 N.E.2d 628

SCHOOL CITY OF GARY, Appellant (Defendant Below), v. Alfonso R. CLAUDIO b/n/f Pedro Claudio and Pedro Claudio,

Appellees (Plaintiffs Below).

No. 3-579A145.

Court of Appeals of Indiana, Third District.

Dec. 15, 1980.

John W. Barce, Barce, Vann & Ryan, Fowler, for appellant; T. Sherman McClean, Gary, of counsel.

Max Cohen, Dawn Wellman, Cohen & Thiros, Merrillville, for appellees.

HOFFMAN, Judge.

The School City of Gary appeals the trial court's judgment in favor of Alfonso Claudio and his father Pedro for damages sustained as a result of Alfonso being run over by a bus. Alfonso and Pedro were awarded $175,000 and $41,000 respectively.

The issues raised by School City have been consolidated as follows:

(1) whether the evidence is sufficient to establish negligence on the part of School City;

(2) whether the verdict is contrary to the evidence regarding contributory negligence;

(3) whether the trial court erred in admitting the testimony of an expert witness not listed in the pretrial order;

(4) whether the trial court erroneously denied School City an opportunity to cross-examine a witness regarding a prior inconsistent statement;

(5) whether the trial court erred in allowing impeachment from a written statement not introduced into evidence; and

(6) whether the trial court erred in the giving of certain of Claudio's instructions and refusing to give other instructions tendered by School City.

The record reveals that on September 18, 1974 ten year old Alfonso Claudio was struck by a bus while he and other bused children were waiting outside the Bethune School in Gary. Alfonso sustained severe injuries as a result of the accident. The evidence is conflicting as to exactly how the accident happened. One version has Alfonso slipping and falling after he had jumped and grabbed onto an open window of the moving bus. A second version has Alfonso running toward the bus and tripping. The final version indicates that Alfonso was running toward the bus and was pushed beneath its wheels by another student. The evidence is equally conflicting as to how many, if any, teachers were present at the time of the accident.

School City argues that the evidence is insufficient to establish that it was negligent in its supervision of the children. When sufficiency of the evidence is at issue an appellate court will not weigh conflicting evidence nor judge the credibility of witnesses, but will consider only the evidence most favorable to the judgment together with all reasonable inferences to be drawn therefrom. Ray v. Goldsmith (1980), Ind.App., 400 N.E.2d 176. Such evidence in the present case indicates that no teachers were present at the time of the accident.

The elements of negligence with respect to the relationship between students and school personnel were discussed at great length in Miller v. Griesel et al. (1974), 261 Ind. 604, 308 N.E.2d 701. The Court there noted the "well recognized duty in tort law that persons entrusted with children, or others whose characteristics make it likely that they may do somewhat unreasonable things, have a special responsibility recognized by the common law to supervise their charges." Id. at 706 citing Restatement Torts 2d § 320; Prosser, Torts § 33, p. 172 (4th ed. 1971). This duty was held to be applicable to schools.

After establishing a duty on the part of schools to supervise children under their control, the Court turned its attention to the standard of care required. Emphasizing that schools are "not intended to be insurers of the safety of their pupils" the Court held that schools are required to exercise ordinary and reasonable care in supervision. Id. Thus, schools have been found not negligent when an accident is of doubtful foreseeability, Driscol et al. v. Delphi School Corp. (1972), 155 Ind.App. 56, 290 N.E.2d 769 (child fell while running to a shower after gym class), or under circumstances where there is no dangerous condition or instrumentality present. Norman v. Turkey Run Comm. School Corp., (1980) Ind.App., 411 N.E.2d 614 (two children collided while running on playground); Bush v. Smith et al. (1972), 154 Ind.App. 382, 289 N.E.2d 800 (student injured on high jumping equipment during non-school hours). The boarding of a bus by young children does, however, involve a dangerous condition and accidents such as the one in the present case are not of doubtful foreseeability. A school, therefore, does have a duty to maintain some level of supervision over students under its control while they are waiting for, and boarding, buses. A total lack of supervision constitutes negligence.

School City correctly states that negligence alone is insufficient to fix liability. A causal relationship between the negligence and the injury must also be shown. Medsker v. Etchison (1936), 101 Ind.App. 369, 199 N.E. 429. The issue of proximate cause is, however, a question of fact for the jury if different minds might reasonably draw different inferences from the facts given. Elder v. Fisher (1966), 247 Ind. 598, 217 N.E.2d 847. See also, Ortho Pharmaceutical Corp. v. Chapman (1979), Ind.App., 388 N.E.2d 541. In such cases an appellate court is bound by the jury's findings. Peterson v. Culver Educational Foundation (1980), Ind.App., 402 N.E.2d 448. Different minds might reach different results with regard to the school's lack of supervision being a proximate cause of the accident. The jury's finding as to proximate cause will therefore not be set aside.

School City contends that under any version of the accident the evidence shows Alfonso was contributorily negligent. The applicable standard of care for a child varies from case to case and must be fixed by the jury in each case according to the circumstances. LaNoux v. Hagar (1974), 159 Ind.App. 646, 308 N.E.2d 873. In fixing that standard the jury must consider the degree of care that would ordinarily be exercised by children of like age, knowledge, judgment and experience under similar circumstances. Id.

The record contains much testimony regarding the knowledge and experience of the students with respect to busing procedures. The accident occurred during the first year that students were bused to Bethune. Additionally, school had been in session only a very short time prior to the accident. The evidence is conflicting as to whether the children had been given any instructions or warnings by the school regarding busing procedures. When the children's limited experience with buses is combined with the natural tendencies of ten year olds to run and play, it cannot be said that the jury's resolution of the contributory negligence question is contrary to law.

School City next alleges as error the admission of testimony from an expert witness who was not listed in the pretrial order. The witness, Robin Smith, gave testimony regarding procedures commonly used by schools to insure safety while students board buses.

Upon objection by School City the following exchange took place:

"THE COURT: My question is what would have been the purpose of taking the deposition?

"MR. McCLEAN: To see whether he is an expert. To formulate our cross-examination of him.

"MR. BARCE: And to see if we need an expert to counter him."

Record at 583.

The court then permitted School City to conduct an extensive voir dire of Mr. Smith in connection with his qualifications as an expert and his knowledge of safety procedures. School City renewed its objection at the close of voir dire. The trial court overruled the objection and direct examination of Mr. Smith proceeded.

When the trial court overruled the objection, School City was given a choice to proceed with the trial and attempt to cross-examine Mr. Smith with the information elicited on voir dire or to request a continuance for the purpose of gathering evidence to counter Mr. Smith. School City chose to proceed. The failure to request a continuance constitutes a waiver of School City's objection to the admission of the testimony. City of Evansville v. Rieber (1979), Ind.App., 385 N.E.2d 217; Hirsch et al. v. Merchants Nat'l Bk. (1975), 166 Ind.App. 497, 336 N.E.2d 833.

School City raises several issues regarding the use of prior written statements made by witnesses. Inasmuch as these issues are related they will all be discussed in this section.

The first alleged error concerns the trial court's sustaining of Claudio's objection to the following question:

"Q. Did you ever make the statement, Karen, that you thought Joey getting hurt was his own fault?"

Record at 465.

Claudio contends that the question is improper impeachment. School City argues that if the witness had made the statement it was inconsistent with the general nature of her direct testimony and therefore proper impeachment. The witness, Karen Bernard, testified on direct examination as to various circumstances existing at the time of the accident. She did not however testify to actually seeing the accident. On cross-examination School City attempted to impeach Karen with prior inconsistent statements. Karen either denied, or stated that she did not remember, making most of the statements. It was during this impeachment that the question in issue was asked.

School City cites Rieth-Riley Constr. Co. v. McCarrell (1975), 163 Ind.App. 619, 325 N.E.2d 844, and Shelby Nat'l Bk., Adm. v. Miller (1970), 147 Ind.App. 203, 259 N.E.2d 450, as authority for the admission of a prior inconsistent statement of opinion for impeachment purposes. Both cases, however, are clearly distinguishable from the case at bar.

The attorney in Rieth-Riley was permitted to read to the jury a prior statement of opinion as to the ultimate issue. The Court of Appeals upheld the trial court's ruling stating:

"Since Pound was the only eyewitness to the collision and since he had previously testified both as to his experience as an operator of motor vehicles and to the facts forming the basis of his statement, we are not inclined to...