Willoughby v. Lehrbass

• Decision Date: 18 June 1986
• Docket Number: Docket No. 80068
• Citation: 388 N.W.2d 688,33 Ed. Law Rep. 469,150 Mich.App. 319
• Parties: Frank WILLOUGHBY and Betty Lou Willoughby, husband and wife, and Frank Dain Willoughby, Plaintiffs-Appellants, v. Roger LEHRBASS, Freesoil Community School Board of Education, Freesoil Community School District, Dr. L. Vern Hoyt, and James R. Duvall, Defendants-Appellees. 150 Mich.App. 319, 388 N.W.2d 688, 33 Ed. Law Rep. 469
• Court: Court of Appeal of Michigan — District of US

Page 688

388 N.W.2d 688

Frank WILLOUGHBY and Betty Lou Willoughby, husband and wife and Frank Dain Willoughby, Plaintiffs-Appellants, v. Roger LEHRBASS, Freesoil Community School Board of Education, Freesoil Community School District, Dr L. Vern Hoyt, and James R. Duvall Defendants-Appellees.

Docket No. 80068.

150 Mich.App. 319, 388 N.W.2d 688, 33 Ed. Law Rep. 469

Court of Appeals of Michigan.

Submitted Jan. 9, 1986.

Decided April 7, 1986.

Released for Publication June 18, 1986.

[150 MICHAPP 325] Gockerman, Wilson, Broberg & Swain, P.C. by Leonard E. Broberg, Manistee, for plaintiffs-appellants.

Cholette, Perkins & Buchanan by Edward D. Wells, Grand Rapids, for defendants-appellees.

Before MAHER, P.J., and ALLEN and LAMB, ^* JJ.

ALLEN, Judge.

In an action for battery and use of unreasonable physical force on a student, must the trial judge instruct on battery solely pursuant to the standard jury instructions, and must the trial judge inform the jury that the school code provision dealing with corporal punishment, M.C.L. Sec. 380.1312; M.S.A. Sec. 15.41312, applies only where the teacher is acting to maintain proper discipline? These questions and others confront us in this case of first impression concerning discipline in the public schools.

On January 23, 1981, plaintiff Frank Dain Willoughby [hereinafter, Willoughby will refer to Frank Dain Willoughby only] was a student in defendant Roger Lehrbass's fifth hour advertising class at Freesoil Community School. On that date, before Lehrbass's class began, the principal asked plaintiff to assist in replacing some doors which had been removed from their hinges. After completing this task, Willoughby walked into the advertising class a few minutes late. According to Lehrbass, another student was giving an oral presentation for the final examination. Willoughby, nevertheless, walked by Lehrbass's desk and with a sweeping motion of his hand started to brush into the wastebasket a [150 MICHAPP 326] number of folded-up pieces of paper sitting on Lehrbass's desk. Lehrbass was using the slips of paper to select the order in which the students would give their oral preparations.

As Willoughby swept his hand across the desk, Lehrbass grabbed his arm and instructed him not to touch the papers. Willoughby then intentionally or accidentally kicked the wastebasket over, and, according to Lehrbass, mumbled something which sounded disrespectful.

Willoughby then walked to a seat in the front row around where he usually sat. Although the students did not have assigned seats, they normally sat in the same area each day. Willoughby testified that he tried one seat in the front row but found it broken or too low. He then headed for some empty seats in the back. When he was halfway there, Lehrbass came up from behind, grabbed his left arm and twisted it behind his back in a "half nelson". Lehrbass said, "Come on, Frank, let's go". Lehrbass began marching Willoughby to the principal's office.

Lehrbass pushed Willoughby out of the classroom and up the steps. Willoughby said, "Let go, you're hurting me." On the landing, Willoughby squirmed loose and said he could find the office himself. However, according to Lehrbass, Willoughby started toward the steps going down--away from the office. (Willoughby's version was that he turned around to go up the steps.) In any event, Lehrbass then grabbed Willoughby in a "full nelson", with his arms underneath Willoughby's armpits and his palms on the back of Willoughby's neck. Willoughby testified that he heard cracking up and down his back, and felt pain and soreness as Lehrbass pushed against his neck and back.

Lehrbass released Willoughby at the top of the [150 MICHAPP 327] stairs near the principal's office. Inside the office, Willoughby and Lehrbass each told the principal, defendant James Duvall, their versions of what had transpired. Willoughby asked to call home, but Duvall refused this request. Willoughby then attended his next class, physical education, where he participated in a game of speedball.

Willoughby testified that he consulted a chiropractor that evening because of continuing soreness in his back, neck, and shoulders. He treated with the chiropractor for some time. Subsequently, he saw an orthopedic surgeon who diagnosed his condition as myofascitis, an inflammation of the back muscles or tissues.

Plaintiffs' complaint, filed July 23, 1981, charged defendants with false imprisonment, negligent hiring and supervision, and gross abuse and use of unreasonable force on Willoughby. These latter allegations were apparently based on M.C.L. Sec. 380.1312, which provides in pertinent part:

"(2) A teacher or superintendent may use reasonable physical force on the person of a pupil necessary for the purpose of maintaining proper discipline over pupils in attendance at school.

"(3) A teacher or superintendent shall not be liable in a civil action for the use of physical force on the person of a pupil for the purposes prescribed in this section, except in case of gross abuse and disregard for the health and safety of the pupil."

Prior to trial defendants moved for partial summary judgment on the counts alleging false imprisonment and negligent hiring and supervision. The trial court granted this motion on governmental immunity grounds. Subsequently, on April 7, 1983, the trial court granted plaintiffs' motion to amend their complaint to charge a civil rights violation under 42 U.S.C. Sec. 1983.

[150 MICHAPP 328] On the first day of trial, April 20, 1983, the trial court dismissed the civil rights count on defendants' motion. The case proceeded to trial on the intentional tort count, and the jury returned a verdict of no cause of action in favor of defendants.

Plaintiffs moved for a new trial, judgment notwithstanding the verdict, and rehearing. The trial court denied these motions on July 22, 1983. Plaintiffs filed an application for delayed appeal, which this Court granted on March 29, 1985. Seven issues, the fourth issue being of first impression, are raised on appeal. We discuss them seriatim and affirm.

I

On April 7, 1983, the trial judge allowed plaintiffs to amend their complaint to allege a cause of action under 42 USC 1983, and promptly thereafter plaintiffs filed an amended complaint alleging, inter alia, that prior to January 23, 1981, Roger Lehrbass had "on several occasions engaged in violent, assaultive and intemperate behavior, allegedly for the purpose of disciplining students". However, on the first day of trial, prior to the commencement of trial proceedings, the court ruled that the civil rights cause of action was not a part of the proceedings. The court explained that the subject was not raised in time for the court to familiarize itself on the federal question and further it was because the court felt there would be confusion as to whether ordinary negligence alone might justify the civil rights claim.

Then, at the hearing in July 1983, on plaintiffs' motion for a new trial, the trial judge stated that based on the testimony at trial there was really nothing which would have caused the jury to have decided the case any differently had the civil [150 MICHAPP 329] rights cause of action been heard. The trial court concluded that both because of the lateness in the proceedings when the civil rights action was raised, as well as the court's observation of the evidence presented, it was satisfied that even the court could have given a more "expanded reason" prior to the date of trial, it was not wrong to deny the motion for inclusion of the civil rights claim.

Plaintiffs argue that the trial judge committed reversible error based upon the fact that dismissal of the civil rights cause of action cannot be supported by the trial judge's unfamiliarity with the federal cause of action; the dismissal was inconsistent with the trial judge's original grant of plaintiffs' motion to amend their complaint to add the cause of action; and, when viewing the evidence in a light most favorable to plaintiffs, the evidence establishes that plaintiffs had sufficiently pleaded a 42 U.S.C. Sec. 1983 cause of action.

A major portion of the parties' briefs on this issue is devoted to how to characterize the trial judge's action. The standard of review differs depending on whether the court's action was an involuntary dismissal under MCR 2.504(B), formerly GCR 1963, 504.2, a directed verdict granted under MCR 2.515, formerly GCR 1963, 515.1, a grant of summary judgment under MCR 2.116(C)(10), formerly GCR 1963, 117.2(3), or a denial of a motion to amend pleadings. However, in our opinion it makes no difference which way the court's action is characterized. Assuming, arguendo, that the court erred by refusing to allow plaintiffs to litigate their civil rights claim, any error was harmless based on the fact that the verdict would have been the same in the absence [150 MICHAPP 330] of the assumed error. Knoper v. Burton, 383 Mich. 62, 68, 173 N.W.2d 202 (1970); Pelley v. Peterbilt Motors Co., 133 Mich.App. 664, 667, 350 N.W.2d 787 (1984); MCR 2.613(A).

On a special verdict form the jury specifically found that Lehrbass had not used anything other than reasonable force in disciplining plaintiff Willoughby. ¹ In Parratt v. Taylor, 451 U.S. 527, 536, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), the Court held that suits under 42 U.S.C. Sec. 1983 must establish that the conduct complained of deprived the aggrieved party of rights, privileges or immunities secured by the Constitution or laws of the United States. In Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), the Supreme Court held that the common law rule allowing a teacher to use reasonable force against a student comports with due process standards. M.C.L. Sec. 380.1312; M.S.A. Sec. 15.41312, heretofore referred to, basically codifies the common law. Since the jury specifically found that Lehrbass had comported with the Michigan statute, and...