Vendrell v. School Dist. No. 26C, Malheur County

• Decision Date: 21 November 1962
• Citation: 376 P.2d 406,233 Or. 1
• Parties: Louis VENDRELL, Respondent, v. SCHOOL DISTRICT NO. 26C, MALHEUR COUNTY, Appellant.
• Court: Oregon Supreme Court

Page 406

376 P.2d 406

233 Or. 1

Louis VENDRELL, Respondent, v. SCHOOL DISTRICT NO. 26C, MALHEUR COUNTY, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 2, 1962.

Decided Nov. 21, 1962.

James A. Cox, Ontario, and Roland F. Banks, Jr., Portland, argued the cause for appellant. On the brief were Yturri, O'Kief & Cox, Ontario, and Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.

Wendell Gronso, Burns, argued the cause for respondent. On the brief were Cramer & Gronso, Burns.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL, and GOODWIN, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant, School District No. 26C of Malheur County, from a judgment in the amount of $25,000 which the circuit court entered against it in favor of the plaintiff based upon a jury's verdict. The defendant school district lies in Malheur County and includes the city of Nyssa and more particularly Nyssa High School which it operates. August 24, 1953, a week before classes assembled in the high school, the plaintiff registered for football practice and play. He shortly enrolled in the school as a freshman. October 9, about six weeks after he had turned out for football and while playing as a member of the Nyssa High School team against the Vale High School team, he sustained the injury mentioned in Vendrell v. School District No. 26C, Malheur County et al., 226 Or. 263, 360 P.2d 282. He was the plaintiff in that action. The action now before us and the one just cited are based upon substantially the same complaint. Following the announcement of the decision just mentioned the complaint was amended by adding an additional charge of negligence and omitting all defendants except the school district. Since the acts of negligence, if any were established by the evidence, were those of the football coaches, the defendant's liability, if any, must be based upon the doctrine of respondeat superior.

The defendant-appellant presents the following as its assignment of error:

'The court erred in denying defendant's motions for a nonsuit and a directed verdict. The motions and the court's rulings are as follows: * * *.'

With three members dissenting, our former opinion ruled that since the defendant had obtained a policy of liability insurance as authorized by ORS 332.180, an action based upon charges of negligence could be maintained against it with recovery limited to the amount of the policy ($25,000). It also sustained the sufficiency of the complaint as the statement of a charge of negligence.

The present complaint, in charging the defendant with negligence, avers that at the time of the plaintiff's injury (1) he was 'an inexperienced football player'; (2) he weighed 140 pounds; (3) he was 'not physically corrdinated'; (4) his injury befell him when he was 'tackled hard by two Vale boys'; (5) he had not received 'proper or sufficient instructions'; and (6) he had not been furnished with 'the necessary and proper protective equipment' for his person. The latter is the new charge which the third amended complaint added to the averments of negligence. The complaint also alleges that the plaintiff's injuries 'were directly and proximately caused by the negligence of the defendant.' The answer denied all allegations of negligence and of proximate cause. It alleged that (1) if any of plaintiff's protective equipment was improper or insufficient the fact was known to him, (2) he did not advise the defendant thereof, and (3) his neglect in that respect constitued contributory negligence upon his part. It further alleged that (a) the plaintiff knew that football was a body contact sport, (b) he willingly entered into it, and (c) he assumed its risks. The reply denied all new matter alleged in the answer. It averred that (1) the plaintiff 'was never informed by the defendant as to the uses of protective equipment'; (2) the plaintiff was not informed of the dangers of playing football with ill fitting, improper equipment; (3) the defendant did not possess a sufficient quantity of equipment ot enable the players to obtain properly fitting gear, and (4) the defendant 'had never explained the risk and hazards incidental to a football game, nor had defendant or its agents ever explained the full nature of the game of football to this plaintiff, or the hazards involved therein.'

The part of our former opinion that is particularly material to the issues now before us states:

'* * * [A] coach or physical education instructor is required to exercise reasonable care for the protection of the students under his supervision. Bellman v. San Francisco H. S. Dist., 1938, 11 Cal.2d 576, 81 P.2d 894; La Valley v. Stanford, 1947, 272 App.Div. 183, 70 N.Y.S.2d 460. * * * We hold that the allegation that plaintiff was allowed to participate in a varsity football game without proper or sufficient instruction is sufficient to state a cause of action against the district. * * *'

We must therefore determine whether the evidence presented in this case showed that the defendant's coach failed 'to exercise reasonable care for the protection of his players,' and if so, whether the injury which the plaintiff sustained resulted therefrom.

Before entering Nyssa High School the plaintiff had completed the course of study offered by Nyssa Junior High School. The latter maintains a football team, two coaches and scheduled games. While a student in that school the plaintiff had constantly been a member of its football team. He played the position of left half-back, the same position that he was playing at the time of his injury.

Nyssa High School has about 300 students, two football coaches and a manager for the team. It played scheduled games with other high schools. The plaintiff was 15 years of age when he entered the high school--one year older than most pupils.

The plaintiff sustained his injury during the close of the fourth quarter of a game in which Nyssa's opponent was the Vale High School team. He was injured when he was tackled by two Vale players while he was carrying the ball.

As a witness the plaintiff described as follows what happened: 'And I saw the Vale players in front of me and I knew I couldn't go any further so I put my head down and just ran into 'em and that is when I heard my neck snap.' At that moment he suffered the injury for which he seeks redress in damages. It consists of a fracture of the fifth cervical vertebra of the neck.

We shall now consider the plaintiff's specifications of negligence, one by one.

The first specification of negligence states that when the plaintiff was injured he was 'an inexperienced football player.' We believe that the word 'inexperienced' should be given its common meaning. We generally speak of a person as experienced who has acquired knowledge upon the matter in hand through training or practical contact with it. An inexperienced person is one who is lacking in those elements and is, therefore, deficient in capacity to do the work which is about to be undertaken. Experience varies with individuals and the type of activity in which they engage. One person's experience may have extended over many years. Upon the other hand, the experience of a high school football player, even if we count his days of training, can be no more than a few months.

Thomas D. Winbigler, football coach of the Bend High School and a witness for the plaintiff, saw the Nyssa-Vale game and the play in which the plaintiff sustained his injury. Referring to that play and the plaintiff's handling of it, he testified:

'It was a well-executed play. I will say that. Any play that will go for that much yardage is a well-executed play.'

Before the plaintiff had turned out on August 24, 1953, for football practice he had played for two years as a member of the football team of Nyssa Junior High School. Evidently, the training given to the football squad in the junior high school is substantial, for we note that the plaintiff mentioned that the squad was taught how to tackle, block, stiff-arm, carry the ball and keep the ball from the opponent. While a member of the junior high school football team the plaintiff played in games against Adrian, Vale, Payette, and Parma.

Before any student was accepted as a member of the Nyssa High School football squad it was necessary for him to be pronounced physically fit by a physician and for his parents to give their written consent. The plaintiff met both requirements. The plaintiff had worked in the preceding summer upon farms and deemed himself in good condition. More than one of the witnesses spoke of him as a promising football player, and none referred to him in any other way. He concedes that he was generally the first member of the squad present for football practice and the last to leave the training field.

Football practice was conducted every afternoon, Monday through Thursday, for about two hours. No practice was maintained on Fridays because that was the day upon which the team played its games.

The training for football play which the plaintiff, as a member of the Nyssa High School football squad, underwent was, of course, dependent somewhat upon the competency of the school's coach. All other coaches who mentioned the subject described Nyssa's head coach, Howard Lovelace, as competent and well regarded. Thomas D. Winbigler, aforementioned, was the football coach of Weiser High School in 1953 but at the time of the trial was the football coach of Bend High School. He testified:

'I have a high regard for Howard in his ability to coach and his teams were well coached. * * *'

The training of the squad consisted of a program of calisthenics, classes on physical conditioning and training rules. The calisthenics were intended to strengthen the body. One of them was called bull-neck exercise. It was engaged in for several minutes each day and was designed to strengthen the neck. The plaintiff described it as hard. The training...