Segerman v. Jones

• Decision Date: 09 December 1969
• Docket Number: No. 102,102
• Citation: 256 Md. 109,259 A.2d 794
• Parties: Rita SEGERMAN v. Henry L. JONES, Individually, etc.
• Court: Maryland Court of Appeals

Page 109

256 Md. 109

259 A.2d 794

Rita SEGERMAN v. Henry L. JONES, Individually, etc.

No. 102.

Court of Appeals of Maryland.

Dec. 9, 1969.

William H. Clarke, Bethesda, for appellant.

Walter S. Levin, Donald Lee Noble and Sauerwein, Boyd & Decker, Baltimore, on the brief, amicus curiae Maryland State Teachers' Assn., Inc.

Robert S. Bourbon and Dunphy & Bourbon, Rockville, on the brief, amicus curiae Board of Education of Montgomery County.

Victor L. Crawford, Rockville, on the brief, amicus curiae Montgomery County Education Assn., Inc.

Joseph Montedonico, Rockville (Edward C. Donahue, William A. Ehrmantraut and James P. Gleason, Rockville, on the brief), for appellees.

Before BARNES, McWILLIAMS, FINAN and SINGLEY, JJ., and CHARLES E. ORTH, Jr., Special Judge.

SINGLEY, Judge.

In 1968, Mary Latane Jones was a member of Mrs. Rita Segerman's fourth grade class at the Rollingwood Elementary School in Montgomery County. On 10 January of that year, Mrs. Segerman left the classroom for a few minutes on school business ¹ while the class was engaged in a program of calisthenics. During the teacher's absence and while the exercises were being performed, the back of Mary's head was struck by the feet of a fellow pupil, Robert Glaser (Bobby), and two of her front teeth were badly chipped. Mary's father, as Mary's next friend and in his individual capacity, brought suit against Mrs. Segerman and Bobby, alleging that Mary's injuries were the result of their negligence. Both defendants filed general issue pleas and the case went to trial before the Circuit Court for Montgomery County without a jury. At the end of the plaintiff's case, Bobby's motion for a directed verdict in his favor was granted, and judgment was entered in his favor for costs. ² From judgments against Mrs. Segerman entered on verdicts in amounts of $5,000.00 in Mary's favor and $1,131.00 in favor of Mary's father, Mrs. Segerman has appealed.

We shall undertake to summarize such parts of the testimony as are pertinent to the issue before us. Mrs. Segerman, A.B. Syracuse University, M.A. New York University, had taught school in Oceanside, New York for an unspecified period of time and in Montgomery County for five years prior to the accident. She had been a teacher at Rollingwood for a year and a half, and had taught the fourth grade class since September, 1967.

The following are relevant excerpts, respectively, from the 'Program of Studies' and from 'Grades K-6, Physical Education, Course of Study' issued to teachers in the public schools of Montgomery County, which were introduced below:

'Every elementary school child participates daily in a program of directed physical education activities during which time the teaching of skills, techniques, attitudes, and understandings is stressed. The minimum instructional period is 150 minutes per week. The program is developed and implemented through the cooperative efforts of classroom and physical education teachers. Children participate in active and quiet games, individual and team games, tumbling and apparatus work, self-testing activities, and rhythmic activities.'

'Indoor areas for physical education may include an all-purpose room, a regular classroom, or an empty classroom * * *.'

There were 30 children in Mrs. Segerman's class at Rollingwood. The classroom was 32 feet long, with an additional three feet used as a cloakroom, and 25 feet wide. The room contained 30 moveable desks, each 17 1/2 by 23 1/2 inches, and 30 chairs which slid under the desks. There were also in the room a work table, three feet by six feet; two bookcases, 11 by 28 inches; a teacher's desk, 29 1/2 by 53 1/2 inches, and a chair which slid under the desk.

Mrs. Segerman testified that the physical education teacher came to Rollingwood on Fridays; that on other days, 'It's up to the individual teacher to carry on her own phys. ed. program,' and that since September, 1967, she had conducted exercise programs for Mary's class in the classroom. She also said that the members of her fourth grade class had been doing push-ups, sit-downs and jumping-jacks in the physical education class but that push-ups had never been previously done in her classroom, although jumping-jacks had.

According to Mrs. Segerman, the day when the accident occurred was in 'a snowy week.' She remembered 'the entire week as being an indoor week', when '(t)he children could not go outdoors for phys. ed. during any part of that week at all.'

Mrs. Segerman said that on 9 January, she asked the class if they were familiar with a record called 'Chicken Fat' ³ and when 'so many of the children knew the record * * * asked them to bring it in.' Margaret Wydro, a physical education teacher assigned to the Rollingwood area, described the record:

'I think it was about five years ago. It was written specifically for the President's Council on Youth Fitness, to implement the program that President Kennedy had started. It was written by Meredith Willson, sung by Robert Preston; published by Capitol Records as a service to the Junior Chamber of Commerce, who was hopefully trying to distribute it at no cost to all schools throughout the country.'

Four children brought the record to class. At about 11 o'clock on 10 January, Mrs. Segerman Played the record.

As Mrs. Segerman recounted it:

'Q. Is that the record that you played that day? A. That is it.

'Q. Mrs. Segerman, before playing this record that day that this girl in the class had brought in, did you go over it with the class? A. Yes.

'Q. What did you do? How did you do it? A. First of all I asked, before I played the record, whether all the children knew it. And no one raised their hand to say that they did not know it. And I said we would listen to it first to make sure that we all knew how to do the exercises.

'Q. Were they at the time sitting down; standing up? A. No. They were sitting down in their seats. I had not done anything. I just wanted them to listen to it first.

'So we all were in our seats listening to the record. After the record played I asked the children then was there anyone who did not know how to do any of the exercises. And no one raised their hand. So to the best of my knowledge they all were aware of the exercises.

'Q. Have they done all of these same exercises in gym class that you had see? A. Yes.

'Q. All right. A. At that time, at that point I took the children and placed them around the room.

'Q. How did you place the children around the room? A. Generally as close to their desks as possible, or as close to this place they were supposed to be sitting; however, of course with the arrangement it would necessitate my moving certain children because the desks were close together, so that I utilized aisles and whatever space on the sides and front and back of the room that I had.

'Q. Do you know now just where you placed the children on that day? A. I could not place thirty of them if I had to.

'We could reconstruct it with the children, if we called the same children back again, I'm sure.

'Q. I mean do you know now? A. Not thirty of them, no.

'Q. Generally what would you do with respect to children that were on the same aisle, as these people would be sitting here, and these people would be there. That would give you six in an aisle. A. The normal procedure would be to place the children arms' distance apart, which is what I actually did.

'THE COURT: Place them what?

'A. Arms' distance apart.

'In other words, you have the child put their arm out, and the next child does that.

'After a while you get to judge the distance. You know approximately what is a safe distance between the children. And this is what I did with the group.

'Q. So you would take some people, instead of standing them by their seats, and move them in different places? A. Yes, definitely.

'Q. So you did this before you played the record the second time? A. Yes; oh, certainly.

'Q. Now, before you played the record the second time, did you say anything to the children there? A. Yes.

'Q. What did you them? A. First I made sure, as I said, that we all knew what was expected of them. I told them not to move from where I had placed them, that I was going into the office to attend to something and that I would be back in a few minutes and that they were to follow the instructions on the record.

'Q. Did you tell them not to move? A. Definitely.

'Q. Then what did you do when you put the record on? A. I waited to see how the procedure was going, and I stayed for a few minutes to make sure that there was sufficient room and that things were going well.

'Q. The few minutes that you were there, did everything go all right? A. Yes.'

Mrs. Segerman then left the classroom and walked across the hall to the principal's office. On cross examination, she said she assumed she was out of the classroom 'four or five minutes.'

What happened next is told by Mary:

'Mrs. Segerman put on a record, 'Chicken Fat'; and she told us to follow the record. And we'd started doing, working, and we went through the first side of the record. And then when we were starting the second side, Mrs. Segerman, I think she told us that she's going out of the room, I'm almost positive she did, and she left. And-and Bobby Glaser was in the back of the room, and he moved up because he couldn't hear the record player. And he was doing his push-ups, but he brought up his legs and was resting on his knees. And when he brought his feet down they went over the back of my head and they came down on the floor.

'Q. What came down on the floor? A. My head.

'Q. Your head? A. And hit, my teeth hit the floor and they came out.

'Q. Your teeth came out? A. Yes.'

Mary admitted that the class had been told not to move from their places, but did not remember that the children had been spaced about the classroom. Bobby Glaser did not testify, but Susan Turmala, another member of the class, said Bobby's 'knees bent and his feet went up towards the ceiling.'

Mrs. Segerman...