Wetsel on Behalf of Wetsel v. Independent School Dist. I-1

Decision Date13 September 1983
Docket NumberI-1,No. 56918,L,56918
Citation670 P.2d 986,1983 OK 85
Parties14 Ed. Law Rep. 194, 1983 OK 85 Steven WETSEL, on Behalf of his minor son, Bradley WETSEL, Appellant, v. INDEPENDENT SCHOOL DISTRICTinda Parton, and J.T. Hurst, Appellees.
CourtOklahoma Supreme Court

Certiorari to the Court of Appeals, Div. 2.

In a negligence action by a kindergarten student against the school district, the school principal and a teacher, the District Court, Harmon County, Giles C. Peterson, Judge, sustained the principal's demurrer to the student's evidence and the jury returned a verdict for the other two defendants (the school district and the teacher). The Court of Appeals reversed (a) the judgment rendered on the principal's demurrer for retrial on all the issues and (b) the judgment on jury verdict in favor of the other two defendants for new trial on the damages issue alone. Certiorari was granted on the petition of the three aggrieved defendants.


Jerry W. Foshee, M. Blake Yaffe, Oklahoma City, for appellant.

Ronald L. Day, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for appellees.

OPALA, Justice:

The issues to be dealt with on certiorari sought by the defendants in a kindergarten student's negligence action are: Did the Court of Appeals err in holding that, upon remand of the case, the trial court should direct a verdict for the plaintiff (student) and against two of the three defendants (the school district and the teacher)? and Was the trial court's judgment sustaining the demurrer to the evidence by one of the defendants (school principal) improperly reversed? We answer both of these in the affirmative and then consider other questions that, though raised by the student's appeal, were left undecided by the appellate court's opinion.

The plaintiff, a kindergarten student [student], brought a negligence action against the school district, the school principal and a teacher for bodily injuries received in the classroom. The harm occurred during a regular class period when in the course of demonstrating the alphabet the kindergarten teacher used an electric deep-fat fryer to make doughnuts in the shape of letter "D". One of the students suddenly stepped on the electric cord, the fryer tipped over and fell off the table. Its contents spilled onto the floor. The plaintiff-student was burned when he came in contact with the spilled grease.

All three defendants prevailed at trial--the principal when the court sustained his demurrer to the evidence and the other two defendants (the teacher and the school district) when the jury returned a verdict in their favor.

On appeal by the student, the Court of Appeals (a) reversed the judgment in favor of the school district and the teacher, directing that, upon remand of the cause, a verdict against these two defendants be rendered, as a matter of law, on the issue of liability, with a new trial to be limited to damages alone, and also (b) reversed the judgment in favor of the principal for a new trial on all the issues. We granted certiorari and now reinstate the trial court's judgment.







In one of its instructions the trial court defined negligence and in another it set forth four elements of proof necessary to establish the student's cause of action. The latter instruction (No. 8)--unexpected to at trial--was claimed on appeal to manifest the trial judge's "fundamental misconception" of the case. The Court of Appeals was urged that because of this misconception, the trial judge erred in two respects: (a) he refused to direct a verdict for the student and (b) his charge imposed on the student an excessive probative onus. The challenged instruction informed the jury that:

"In making your decision in this case you are instructed that the plaintiff has the burden of proving to you that each of the following necessary elements of the plaintiff's case is more probably true than not true: * * * FIRST: That the defendants created a dangerous condition in the Kindergarten Classrooms. SECOND: That defendant failed to closely supervice (sic) the operation of the doughnut apparatus. THIRD: That the plaintiff was injured and sustained damages. FOURTH: That Plaintiff's injuries and damages were proximately caused by Negligence of the defendants. * * * " [Emphasis added]

The student argued before the appellate court that his legal burden was fully met once he established, without any dispute, that the teacher had created a dangerous condition by using an electrical appliance to fry doughnuts in the classroom. The Court of Appeals appears to have acceded to this view. For the reasons to be stated we reject the student's argument as legally untenable and pronounce the challenged instruction to be free from fundamental flaw.

Undisputed classroom exposure of a student to a plugged-in deep-fat fryer cannot be regarded as negligence per se. Because the dangerous character of this electric appliance depends on the manner in which it is used, the degree of care to be exercised in handling it tenders an issue of fact. A deep-fat fryer does not fall under the rubric of an instrumentality that is inherently "ultrahazardous" such as a wild animal or dynamite. 1 Mere deployment of the latter, without any regard to fault, will give rise to liability for harm proximately resulting from it. The student's claim cannot be predicated on the mere occurrence of an injury proximately inflicted by the use of an inherently dangerous substance. Rather, it is rested on a breached duty to use ordinary care to protect one from harm through the exercise of adequate supervision. 2 The trial judge's perception of the student's lawsuit, as articulated in the challenged instruction, is hence free from fundamental vice 3 and his refusal to direct a verdict for the student was clearly proper.






Negligence comprehends lack of that care which is required in a situational setting--a failure to do what a person of ordinary prudence would have done or would not have done under the circumstances. 4 The degree of care that an ordinarily prudent person should exercise in a given factual scenario presents an issue for the jury. It is only where the law definitely prescribes the standard of care to be followed that the court may be warranted in taking the case from the jury. 5 Where the negligence claim rests on a breached standard of care that is not legally fixed, but remains variable, shifting with the circumstances of the case, the parameters of duty are undefined as a matter of law 6 and the presence or absence of care that is due tenders a controversy for jury resolution.

The record does not contain undisputed proof of negligence. The defendants showed the teacher took several safety precautions before and during the cooking demonstration. She explained, and warned the students of, the dangers attendant upon frying in hot grease. She instructed that they must watch from afar, stand back and not touch the appliance. The students were directed to remain at least three feet away from the table. Those standing in the back row were five or six feet away, while those in front were a little closer. All of them were told not to step into the space between the wall and the table from which the cord extended to the receptacle. During the process of cooking, she did look down occasionally. Although, while she was cooking, she did not always have direct eye contact with the students, she could still observe anything that was going on. According to the teacher's own testimony, the children were orderly and responsive. When the teacher previously cooked in front of the same class, as well as other classes, she had given them warnings identical to those uttered on the occasion in question. These warnings had been heeded. She had no reason to anticipate that the children would not obey them on the day in question. Another teacher testified that the class in question here was conducted in a proper manner; that she herself had taken similar precautions for the safety of her own students and that she would have handled the classroom in very much the same way. Testimony as to these safety measures is relied upon by the defendants as competent evidence of due care which affords adequate legal support for the jury verdict in their favor.

The degree of supervision that is required by law over kindergarten students necessarily varies with the activities in which they are engaged, i.e. resting, drawing, playing, listening to stories or watching a cooking demonstration. 7 The standard of care imposable upon school authorities does of necessity depend on the situational setting. It is not fixed by law. Whether defense proof does demonstrate adequate supervision--in the precautions observed, the dangers anticipated and guarded against, in the safeguards used and the efforts exercised to prevent the occurrence of harm--clearly presents a jury question. Although some of the evidence in the case was indeed undisputed, inferences that may be drawn from it are both consistent and inconsistent with the defendant's exercise of due care. When uncontroverted proof lends support to conflicting inferences, the choice to be made between the opposite alternatives does not present an issue of law but rather one for the trier of fact. 8 Viewed as a totality, the record does not, as a matter of law, show undisputed breach either by the school district or by the teacher of a legal duty to provide adequate supervision.


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