Woods v. Ware

• Decision Date: 29 September 2015
• Docket Number: WD 78040
• Citation: 471 S.W.3d 385
• Parties: Devin Woods, Appellant, v. Carl Ware, Respondent.
• Court: Missouri Court of Appeals

471 S.W.3d 385

Devin Woods, Appellant,

v.Carl Ware, Respondent.

WD 78040

Missouri Court of Appeals, Western District.

OPINION FILED: September 29, 2015

Eryn Peddicord, Counsel, Michael Townsend, Co-Counsel, Kansas City, MO, for Appellant.

Steven Coronado, Counsel, Paul Gordon, Co-Counsel, Kansas City, MO, for Respondent.

Opinion

James Edward Welsh, Judge

Devin Woods appeals the circuit court's grant of summary judgment in favor of Carl Ware on Woods's claim of negligence. Woods contends that the circuit court erred in finding that the doctrine of official immunity shielded Ware from liability. We affirm.

When considering appeals from summary judgments, we review the record in the light most favorable to the party against whom judgment was entered, and we afford that party the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp.,854 S.W.2d 371, 376 (Mo. banc 1993). The record established that Woods was a former student at Grandview Middle School and a former member of the Grandview Middle School wrestling team. Ware was the head wrestling coach of Grandview Middle School and was an employee acting within the scope and course of his employment with Grandview C–4 School District. On December 5, 2008, Ware conducted a wrestling practice at Grandview High School. The practice included both high school wrestlers and middle school wrestlers, and Woods was present at the practice. Woods, an eighth grader at the time, claims that he was injured during the practice and seeks damages from Ware on the basis of negligence. Specifically, Woods avers he was injured participating in a drill performed with another wrestler who was a member of the Grandview High School wrestling team. Ware was the only faculty member present at the practice and was the sole coach in-charge of the practice.

In his first amended petition for damages, Woods alleged that Ware “owed Plaintiff a ministerial duty to provide for Plaintiff Devin Woods' safety and welfare by ensuring that Plaintiff be properly supervised and instructed while engaged in school activities, specifically wrestling practice.” Specifically, Woods alleged that Ware “breached the duty owed to Plaintiff Devin Woods by instructing him to wrestle a much more experienced and larger High School wrestler[.]”

Grandview C–4 School District policies provide:

Grandview CSD # 4—Safety Program—EB–C.GNV: Including but not limited to, the following: Proper supervision of students and other citizens using the school facilities will be required.

Grandview CSD # 4—Staff Conduct and Ethics—GBCB–C.GNV: Including, but not limited to, the following: ... (8) Supervise all students at all times during the school day; and during any school activity.... (21) Recognize the difference among students and seek to meet individual needs.

Grandview CSD # 4—District–Sponsored Extracurricular Activities and Groups—IGD–C.GNV: Including, but not limited to, the following: All extracurricular activities must have an appointed sponsor, advisor, or coach. It shall be the duty of each individual to attend all meetings, functions, or practices of the relevant group, advise and supervise students and keep the appropriate principal informed regarding activities.

Further, MSHSAA Bylaw 301 provides:

a. Practice—Any attempt of a coach or teacher to teach any phase of a game or activity to any squad or part of a squad or to have any squad or part of a squad engage in drills under the supervision of a coach, or from directions provided by the coach, involving what has already been taught. Try-outs, socalled “skull drills,” “orientation meetings,” etc., are considered practices. Except as provided for in Bylaws 232.0–c and 238.2–a, a junior or senior high school student shall be permitted to participate in school practices only with teams of the school where he/she is properly enrolled.¹

Ware filed a motion for summary judgment asserting that he was entitled to the protection afforded by the doctrine of official immunity because his actions were in the course and scope of his responsibilities as the wrestling coach at Grandview Middle School and were fully discretionary. In particular, he asserted that he was entitled to judgment as a matter of law because the undisputed facts established that there were no statutory or departmentally-mandated duties regarding how he was to conduct the wrestling practice. The circuit court agreed and granted Ware's motion for summary judgment. Woods appeals.

Our review of a summary judgment is de novo.ITT Commercial,854 S.W.2d at 376. “The propriety of summary judgment is purely an issue of law.” Id.We will affirm the circuit court's grant of summary judgment if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Id.at 380; Rule 74.04. A “defending party” may establish a right to judgment by showing:

(1) facts that negate any one of the claimant's elements facts [sic], (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.

ITT Commercial,854 S.W.2d at 381(emphasis omitted). “Where summary judgment has been granted based upon an affirmative defense of official immunity, ‘we must consider whether there is a genuine dispute as to the existence of facts necessary to support this properly pleaded affirmative defense.’ ” Nguyen v. Grain Valley R–5 School Dist.,353 S.W.3d 725, 729 (Mo. App. 2011)(quoting Conway v. St. Louis Cnty.,254 S.W.3d 159, 164 (Mo. App. 2008)).

In his first point on appeal, Woods contends that the circuit court erred in granting summary judgment because Ware failed to meet his burden to prove the absence of genuine issues of material fact regarding the applicability of his defense of official immunity. Woods asserts that he demonstrated a genuine dispute as to four of the alleged material facts that Ware claimed were uncontroverted and that were necessary to obtain judgment as a matter of law.

In support of his motion for summary judgment, Ware attached a Statement of Uncontroverted Facts, which included these four statements:

The Missouri State High School Activities Associations' (“MSHSAA”) regulations titled “MSHSSA Wrestling Junior High School Weight Classes” and “Responsibility for Supervision” do not apply or concern wrestling practices conducted by member schools, including Grandview Middle School and Grandview High School because wrestling practices conducted by schools are not considered interscholastic events by MSHSAA even in the case of joint practices with other schools. See Affidavit of Kerwin Urhahn, ... Exhibit A ¶¶ 2 and 3.

In 2008 there were no District mandated policies or procedures regarding how wrestling coaches should conduct their practices, including how wrestlers should be paired and what exercises or drills they performed. See Affidavit of Stephen Robertson, ... Exhibit B ¶ 3.

The decisions on how to conduct wrestling practice were left to the judgment and discretion of the wrestling coach. See Affidavit of Stephen Robertson, ... Exhibit B ¶ 3.

It was up to the discretion of the wrestling coach how to supervise students using school facilities, and how to recognize the difference among student and seek to meet individual needs. See Affidavit of Stephen Robertson, ... Exhibit B ¶ 3.

In response to these statements of uncontroverted fact, Woods objected to the affidavits relied on to support the statements of fact and asserted that the affiants' comments were “not factual statements, but improper legal conclusions, and should not be considered in ruling” upon the motion for summary judgment. Further, as to the last three statement of facts, Ware objected on the grounds that the affiant was incompetent and lacked sufficient knowledge to testify regarding whether there were any policies that pertained to wrestling practice and how to conduct a wrestling practice.

In ruling upon the motion for summary judgment, the circuit court specifically said that it “did not take into consideration the affidavits ... when rendering [its] decision.” In its decision, the circuit court merely set forth the school district's policies and the MSHSAA bylaw at issue and determined that as a matter of law²that they did not create a ministerial duty. The court determined that Ware's duties to properly supervise and attend practices as stated in the school district's policies and the MSHSAA Wrestling Manual were discretionary and that Ware did not breach any ministerial duty. Hence, to the extent that Woods contends that he controverted the aforementioned statement of facts by objecting to the affidavits that Ware relied on as support for the statements, his contention is without merit because the circuit court did not even rely on the affidavits in granting Ware's motion for summary judgment.

In his second point on appeal, Woods asserts that he demonstrated 11 additional material facts, which created genuine issues of fact as to the applicability of Ware's defense of official immunity. The 11 additional facts identified by Woods were:

1. This was Defendant's Ware's first time working as a wrestling coach for a school district.

2. Defendant Ware conducted a wrestling practice which included both High School wrestlers and Middle School wrestlers at Grandview High School.

3. Defendant Ware was the only faculty member at said practice.

4. Defendant Ware was the sole coach in-charge of said practice.

5. Plaintiff Devin Woods was in eighth grade at Grandview Middle School, was a member of the Grandview Middle School Wrestling team, and attended said practice.

6. As head coach of the Grandview Middle School Wrestling Program, Defendant Ware was responsible for being accustomed with and

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