Thomas v. St. Mary's Roman Catholic Church, 12290

• Decision Date: 12 September 1979
• Docket Number: No. 12290,12290
• Citation: 283 N.W.2d 254
• Parties: Howard G. THOMAS and Patrick A. Thomas, Plaintiffs and Respondents, v. ST. MARY'S ROMAN CATHOLIC CHURCH, a Corporation, Dell Rapids, South Dakota, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 254

283 N.W.2d 254

Howard G. THOMAS and Patrick A. Thomas, Plaintiffs and Respondents, v. ST. MARY'S ROMAN CATHOLIC CHURCH, a Corporation, Dell

Rapids, South Dakota, Defendant and Appellant.

No. 12290.

Supreme Court of South Dakota.

Sept. 12, 1979.

Thomas R. Pardy of Mumford, Protsch, Sage & Pardy, Howard, for plaintiffs and respondents.

A. D. Sommervold of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellant.

HENDERSON, Justice (on reassignment).

ACTION

This is an action in tort wherein father and son, Patrick Thomas and Howard Thomas (respondents), sued St. Mary's Roman Catholic Church (appellant), for damages totaling $151,950 for injuries Howard Thomas sustained while playing basketball in St. Mary's High School gymnasium. A jury returned a verdict in favor of respondents and against appellant for $125,000. For purposes of convenience and clarity, respondents will be referred to as Thomas and appellant will be referred to as St. Mary's. St. Mary's now appeals this verdict. We affirm.

FACTS

St. Mary's, a corporation, operates a parochial high school in Dell Rapids, South Dakota. In 1957, it completed construction of a gymnasium that has since been used for various athletic events including inter-school basketball games. During construction of the school, one Monsignor Meyer, acting on behalf of St. Mary's, made the decision and approved the installation of two 30 X 30 and two 18 X 30 panels of glass in four sections of a sidelight panel adjacent to the west entryway into St. Mary's gymnasium. Two of the lower panels had previously been broken and replaced with plywood.

On February 16, 1973, two inter-school basketball games were held in St. Mary's gymnasium between St. Mary's and Chester High Schools. Howard Thomas, described as an extremely competitive and aggressive ballplayer, was a member of the Chester varsity squad. The varsity game was described that night as fast-break and highly explosive. The Chester team, being behind, had assumed a full-court press. Thomas deflected the ball being handled by a St. Mary's player and chasing the ball, lunged for it just as it was going out of bounds. Thomas succeeded in tapping the ball back into the playing area but his momentum carried him through a glass panel, not previously broken, located within six feet of the west boundary line of the basketball court.

The evidence reflects that as he struck the paneling, the glass shattered, slid and fell, leaving jagged and rough pieces of glass. Thomas sustained injuries consisting of a severed artery and extensive lacerations on both his arms, all of which required immediate treatment at a hospital in nearby Sioux Falls where he underwent surgery. Thomas was hospitalized for one week and had both arms in casts for two months. For a period of eight months, his right arm was in a sling and he wore a supporting brace on his left arm. During this time he suffered pain, stiffness, cramps, and an insensitivity to cold and touch.

The injuries affected his athletic endeavors and coaches testified that Thomas had difficulties participating in sports after this accident. Prior to this accident, Thomas was an all-conference quarterback on his high school football team. He could not play that position the following year because of lack of dexterity in his hands and insensitivity to touch. Thomas could not handle a track-baton or play softball as effectively due to the loss of grip in his hands. He could no longer play basketball as he could not dribble or shoot the ball adequately.

Employers testified that Thomas could not do heavy work for a period of one year after the accident and further testified that he had difficulty handling light tools. Thomas also experienced problems while employed as an electrician because of his inability to determine the amount of pressure he was applying to an object, and thus, was hindered from doing intricate work. At the time of trial, Thomas still suffered from a wrist drop and limited movement in his left wrist. Testimony established that it was necessary for him to be treated by a doctor for three to four years.

Testimony disclosed that Thomas did not know the type of glass, did not realize it was breakable, and did not receive any warning concerning the inherent danger of the glass panels so close to the playing floor. Essentially, Thomas' theory is duty-owed and duty-violated, i. e., St. Mary's invited him to play ball and owed him a duty to exercise reasonable care in providing him a safe place to play ball. St. Mary's denied liability on the theories that: (1) It exercised due care; (2) Thomas was contributorily negligent; and (3) Thomas knew the dangerous condition and assumed the risk.

St. Mary's sixteen assignments of error are grouped into five legal issues set forth below.

ISSUES PRESENTED

1. Did the court err in refusing to grant St. Mary's motion for a directed verdict 2. Did the court err in entering a $125,000 judgment upon the jury verdict supposedly unsupported by sufficient evidence? We hold there was sufficient evidence.

upon the basis that Thomas did not establish a prima facie case? We hold the court did not.

3. Did the court err in refusing St. Mary's requested instruction on assumption of the risk? We hold the court properly refused this instruction.

4. Did the court err in submitting to the jury the instruction on comparative negligence? We hold the court properly determined that this instruction be given to the jury.

5. Did the court err in excluding St. Mary's offered testimony of an expert witness, a glass installer by trade, and in refusing St. Mary's requested instructions regarding the use of safety glazing materials in certain buildings. Our holding is that the exclusion of the testimony and the refusal to give the instructions was proper.

DECISION

I

St. Mary's contends that a verdict should have been directed in its favor on the basis that Thomas failed to establish a prima facie case. St. Mary's urges that before the evidence was sufficient to warrant submission to the jury on the issue of negligence, Thomas was required to produce expert testimony on (1) the use and availability of various types of glass, and (2) the design and construction of gymnasiums. St. Mary's argues that the safe design of gymnasiums and the proper use of glass therein comprise matters not within the common knowledge of jurors. Therefore, it contends that without the support of expert testimony in the record, establishing a standard of care by which St. Mary's conduct could be judged, the jury was not empowered to decide the issue of negligence.

In determining whether the evidence is sufficient to present a question for the jury, Thomas is entitled to have each controverted fact resolved in his favor, in addition to the benefit of all reasonable inferences that can be deduced from the evidence. Stenholtz v. Modica, 264 N.W.2d 514 (S.D.1978). We find substantial, credible evidence to sustain the $125,000 verdict.

Expert testimony may have been relevant, but was not a prerequisite in establishing negligence under the facts of this case. The conclusion to be drawn from the evidence by the jurors in this case did not require a special knowledge of the properties of glass or the safe design of gymnasiums. Expert testimony is only required when the issues presented relate to matters so far removed from the realm of common experience or beyond the ken of the average layman that with all the facts before it, the jury, without the assistance of expert opinion, could not be expected to draw a correct inference. Kleinsasser v. Gross, 80 S.D. 631, 129 N.W.2d 717 (1964); Walthoff v. Hall, 73 S.D. 483, 44 N.W.2d 221 (1950).

St. Mary's contention presupposes that glass was the only material which could have been used near the gymnasium floor arguing that an expert witness was needed to explain the various types available. This contention is without merit. Evidence was presented that two bottom glass panels of sidelight had been previously replaced by patching with plywood. Thus, the jury could have easily concluded that there were numerous materials better suited for use in such a precarious place. Furthermore, it is within the realm of common knowledge that ordinary window glass will break on strong impact. St. Mary's position that an expert should have testified on the safe architectural design of gymnasiums also fails. Thomas did not offer to prove St. Mary's failure to maintain its premises in a safe condition via a comparison study of surrounding school gymnasiums. Cf. Dudley v. William Penn College, 219 N.W.2d 484 (Iowa 1974). It is fallacious to assume that the jury established a standard of care on the basis of pure conjecture. Under these facts it can reasonably be inferred that St. Mary's failed to exercise due care in protecting Thomas from the potential hazard of maintaining ordinary window glass in close proximity to the basketball court.

The evidence established that Thomas was a business invitee of St. Mary's. Occupying this status, he was entitled to rely on the assumption that St. Mary's would exercise reasonable care for his safety. Miller v. Baken Park, Inc., 84 S.D. 624, 175 N.W.2d 605 (1970). The evidence also exhibited that St. Mary's, through its agent and employees, knowingly installed breakable glass in a sidelight paneling. St. Mary's further admitted, through its agent Father Carroll, that no warnings were given concerning the makeup or propensity of the glass to break or shatter; nor was there any policy protecting basketball players from colliding with the glass, although there were protective mats on the premises. Neither party produced witnesses as to the dates of damage or repairs to the bottom glass panels; however, the jury could reasonably conclude in response to the evidence that two glass panels had previously been broken that St. Mary's knew or should have known of the danger in maintaining breakable glass in...