Stineman v. Fontbonne College

• Decision Date: 24 November 1981
• Docket Number: No. 80-1876,80-1876
• Citation: 664 F.2d 1082
• Parties: 1 Ed. Law Rep. 770 Patricia STINEMAN, Appellee, v. FONTBONNE COLLEGE and Mary Jo Lopiccolo, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1082

664 F.2d 1082

1 Ed. Law Rep. 770

Patricia STINEMAN, Appellee, v. FONTBONNE COLLEGE and Mary Jo Lopiccolo, Appellants.

No. 80-1876.

United States Court of Appeals Eighth Circuit.

Submitted June 17, 1981.

Decided Nov. 24, 1981.

W. Munro Roberts, Jr. (argued), Ted L. Perryman, St. Louis, Mo., for appellant Fontbonne College.

Shepherd, Sandberg & Phoenix, A Professional Corp., John S. Sandberg (argued), Reed W. Sugg, St. Louis, Mo., for appellee Patricia Stineman; Philip H. Corboy & Associates, Philip H. Corboy, Chicago, Ill., of counsel.

Before HEANEY and HENLEY, Circuit Judges, and NICHOL, ^* Senior District Judge.

HEANEY, Circuit Judge.

Defendant Fontbonne College appeals from a jury verdict finding it negligent in failing to provide medical assistance to plaintiff Patricia Stineman. The trial jury awarded Stineman damages of $800,000 for loss of vision in one eye. We affirm the judgment below with respect to Fontbonne's liability, but find that the damage award is excessive and not supported by the evidence. Unless the plaintiff files a remittitur in accordance with this opinion, a new trial will be granted on the question of damages.

I. FACTS

Stineman has been deaf since infancy and must rely upon lipreading to communicate. At the time of her injury in 1976, she was a freshman at Fontbonne College where she played on the school's intercollegiate softball team. Fontbonne was aware of her deafness and, as with all of its students, required Stineman and her parents to sign authorizations for emergency medical treatment. The three softball coaches were also aware of Stineman's deafness: Shirley Greenspan, the Athletic Director, Jim Johnson, a paid student coach, and Everett Brake, the College's Director of Buildings.

Stineman was injured during softball practice when a ball, thrown by defendant Mary Jo Lopiccolo, struck her in the right eye. The impact of the ball striking Stineman could be heard eighty to one hundred yards away, according to the testimony of other players in the outfield. Coach Johnson heard Stineman cry out from the impact. Ice was applied to the area of the eye, and Coach Brake told Stineman to go to her dormitory room and rest, and that she would be all right. Neither coach directed or suggested that Stineman should see a doctor, although both were aware that the ball's impact was quite hard and that Stineman was especially dependent upon her eyesight.

Athletic Director Greenspan was not present during the practice but was told of the injury later the same day. She did not attempt to contact Stineman, examine the injury or suggest that Stineman visit a doctor. Greenspan testified, however, that she was certified to teach first aid, that she knew loss of vision can result from a blunt injury to the eye, and that if she had observed someone being hit in the eye with a softball, she would take the person to a doctor.

Following the injury, Stineman returned to her dormitory room where she remained that evening and the next day. She testified that she was under the impression she would be all right because none of the coaches said anything to indicate something could be wrong. The next evening, she went to a dance, and on the following day, she began experiencing dizziness and severe blurring and coloring of her vision. She returned to the home of a friend and arranged to have her parents telephoned. Her parents directed her to an internist who observed blood in the anterior chamber of the eye. Realizing that Stineman had a serious injury, the internist immediately referred her to an ophthalmologist, Dr. Thomas Eggleston.

Dr. Eggleston's examination revealed a dilated, irregular pupil which he testified occurred at the time of the injury. He also saw blood in the anterior chamber of the eye, a condition called hyphema. Traumatic hyphema is a relatively common injury. Treatment for it consists of prompt immobilization of the eye and absolute bed rest, the aim of which is to reduce the chance of secondary hemorrhage. According to the expert testimony, when such treatment is given before rebleeding, there is a ninety percent or greater success rate. It was a secondary hemorrhage, or rebleeding, that Stineman experienced two days after she was struck by the ball. ¹

Dr. Eggleston hospitalized Stineman and attempted to drain the eye. This proved temporarily successful, but two days later, the eye again began to bleed, an infection developed and Stineman completely lost the vision in the eye. The eye began to shrink in the socket and she was fitted with a prosthesis.

Stineman filed suit against Fontbonne College and Lopiccolo. The trial jury found no liability on the part of defendant Lopiccolo, but returned a verdict against Fontbonne in the amount of $800,000 for its

failure to provide Stineman with medical assistance. The district court ² denied Fontbonne's motion for judgment n.o.v., and its alternative motions for remittitur or a new trial.

II. LIABILITY

Fontbonne contends that, as a matter of law, it owed no duty to provide medical assistance and, therefore, should have been granted a directed verdict or judgment n.o.v. We note that courts have generally found such a duty in similar circumstances. See, e.g., O'Brien v. Township High School Dist., 73 Ill.App.3d 618, 29 Ill.Dec. 918, 392 N.E.2d 615 (Ill.App.1979); Mogabgab v. Orleans Parish School Board, 239 So.2d 456 (La.App.1970); Welch v. Dunsmuir Joint Union High School Dist., 326 P.2d 633 (Cal.App.1958). Fontbonne contends, however, that it owed no duty to render medical assistance in this particular case, relying principally on Kersey v. Harbin, 531 S.W.2d 76 (Mo.App.1975), a Missouri state court decision setting forth certain elements necessary to imposing such a duty. Although it is arguable whether Kersey controls the present case, ³ we need not reach that issue because we find that the elements in Kersey are satisfied here. To find a duty to render medical assistance, the first element under Kersey requires that the defendant must have been able to appreciate the severity of plaintiff's injury. Here, both coaches who were present knew that the ball made a tremendous impact when it struck Stineman, that it struck her in the area of the eye and that she was dependent upon her eyesight to communicate. Further, Coach Greenspan was made aware of the injury the same day, knew of the risks associated with such injuries and knew of Stineman's special dependence on her eyes. Based on these facts, Fontbonne should have appreciated the severity of Stineman's injury.

The second element of Kersey requires a determination that one or more of the defendants had the skill to provide adequate medical treatment. The only treatment required here was to get the injured person to a doctor. All of the coaches knew that the school's medical clinic was across the street from the softball field. The defendants certainly had the skill to provide this much treatment. ⁴

The third element of Kersey addresses whether providing medical attention would have avoided the injury's ultimate harm. Kersey involved avoiding death, but the question here is avoiding loss of vision. The record establishes that if Stineman had received prompt medical attention, there was a substantial likelihood the eye would have healed with no loss of vision. The expert testimony established that when treatment is obtained before rebleeding, successful healing occurs in ninety to ninety-eight percent of the cases.

We thus find that Fontbonne had a duty to provide medical assistance and that there was sufficient evidence to submit to the jury questions of whether Fontbonne breached this duty and whether such breach caused the loss of vision.

Fontbonne also argues that the trial court's instruction on negligence ⁵ was Fontbonne next seeks reversal because the district court refused to give a cautionary instruction when the plaintiff withdrew her allegation of improper supervision during the softball practice. Stineman initially sought recovery on two theories: failure to properly supervise the softball practice, and failure to provide medical assistance. Although Stineman abandoned the theory of failure to supervise, the jury was not specifically instructed to disregard it. Fontbonne argues that the evidence relating to supervision was irrelevant to the remaining issues and was so prejudicial that, absent a cautionary instruction, a new trial must be granted.

incorrect because it did not specifically set forth the elements of Kersey v. Harbin, supra. A party is not entitled, however, to have the jury instructed in any particular language, so long as the jurors understand the issues and are not misled. McCamley v. Shockey, 636 F.2d 256 (8th Cir. 1981); Frosty Land Foods v. Refrigerated Transport, 613 F.2d 1344 (5th Cir. 1980); Leathers v. United States, 471 F.2d 856 (8th Cir. 1972). We find that the court's instruction incorporated the elements of Kersey and that the jurors were not misled. ⁶

Fontbonne specifically claims prejudice from evidence that there was more than one ball in play; that the coaches did not give special instructions to the other players about throwing the ball to Stineman; that Athletic Director Greenspan was not present at the softball practice; and that Coach Johnson may not have been competent in conducting the practice. This evidence generally would have been admissible, however, even if the plaintiff had not alleged a failure to supervise. The number of balls in play came before the jury largely as background evidence establishing how the injury occurred during softball practice. Evidence of special instructions regarding throwing the ball to Stineman, or the lack of such instructions, would be admissible because of the negligence claim against defendant Lopiccolo. The evidence of Greenspan's absence simply established that she was the athletic director, a team coach and not a witness. This related to her possible role in rendering...