Exercising care for the safety of others – cases which consider the possible liability of public school physical education teachers when students are injured
James C. Kozlowski
As illustrated by the Dibortolo decision described herein, activity instructors may have a legal duty to provide instructions (including warnings about associated dangers) and demonstrate an exercise, particularly when the activity involves children or unfamiliar exercises. In the case of Dibortolo v. Metropolitan School District of Washington Township, 440 N.E.2d 506 (Ind.App. 1882), plaintiff, Mary Ann Dibortolo, brought a negligence suit against defendant, Metropolitan School District of Washington Township (the District), for injuries she sustained during a physical education class taught by the school’s physical education teacher. The facts of the case were as follows:
On March 15, 1977, Mary Ann
Dibortolo was 11 years of age and a
6th-grade student at John Strange
Elementary School. On that day, she
broke a permanent front tooth during a
regularly scheduled physical education
class taught by the school’s instructor,
Dorothy Merriman. Approximately
half the class, including the plaintiff.
was required to perform an exercise
known as the vertical jump.
According to plaintiff’s expert witness,
Joanne Gassert, the safe and proper way
to perform this exercise is to first stand
with the body parallel and the shoulders
perpendicular to the wall, and with an
arm upraised, to crouch momentarily,
then to jump and reach the highest
possible point on the wall. Throughout
her 24 years’ experience as a physical
education teacher, she has never
permitted her students to run toward the
wall in performing the vertical jump. It
was her opinion that to instruct students
to run, or to even take a “leap step,”
toward the wall is to subject them to an
unreasonable risk of harm. Gassert
believed that to allow such activity is to
transform this relatively safe exercise
into an “inherently dangerous” one.
Dorothy Merriman, a physical education
teacher since 1955, testified that she did
not consult any textbooks in preparation
for this exercise; however, she
considered “safety aspects.” According
to Merriman, she demonstrated the
exercise to the students before allowing
them to perform it. She had not used a
floor mat placed perpendicularly to the
wall, and she had not instructed the
students to run toward the wall. She
admitted, however, that they were taking
two or three “quick steps” in the
direction of the wall.
In conflict with her testimony was that
of the plaintiff and three other witnesses.
Stephanie Schneider, Jeff Sheets, and
Stacey Occolowitz were in the same class
with the plaintiff and were also
participants in that day’s activities. They
performed the exercises ahead of the
plaintiff and saw the plaintiff’s mouth hit
the concrete wall. They further testified
that the plaintiff did not fall or stumble
at any point before the impact. It was
adduced that the plaintiff and these three
students had never performed the vertical
jump before that day, and that Merriman
neither demonstrated the exercise nor
warned the class about any dangers
associated with the exercise.
The plaintiff introduced evidence that
showed that Merriman explicitly
instructed her pupils to run toward the
wall to improve their performance The
record reveals that the majority of the
students first stood about six to eight
feet away and then ran toward the wall
before executing the vertical jump. In
addition, there was testimony that the
students were running on a mat placed in
a position perpendicular to the wall.
Based on this evidence, the trial court entered judgment for the District. Dibortolo appealed. On appeal, Dibortolo argued that the trial court had erred in not allowing the jury to determine whether the District was negligent under the circumstances of this case.
Negligence Principles
As noted by the appeals court, negligence is comprised of three elements: (1) a duty on the part of defendant in relation to the plaintiff; (2) failure of the defendant to conform his or her conduct to the standard of care necessitated by the relationship; and (3) the injury that the plaintiff suffered as a result of this failure.
There are three questions of law regarding
these elements that the court must decide
before it may submit the case to the jury.
The initial question is whether the law
imposes a duty upon the defendant to
conform his conduct to a certain standard
for the plaintiff’s benefit…
The duty to exercise care for the safety
of another arises as a matter of law out
of some relation existing between the
parties, and it is the province of the
court to determine whether such a
relation gives rise to such duty.
In this particular instance, the appeals court found that “Mrs. Merriman had a duty to conform her conduct as a physical education teacher to a certain standard, not only for plaintiff’s but also for the other pupils’ benefit”:
In this case, the relationship between the
parties is one of pupil and defendant’s
school personnel. The relationship of
school pupils and school authorities
invokes the well-recognized duty in tort
law that persons entrusted with children,
or others whose characteristics make it
likely that they may do somewhat
unreasonable things, have a responsibility
recognized by the common law to
supervise their charges. Thus, our
Supreme Court has imposed a duty upon
school authorities to exercise reasonable
care and supervision for the safety of the
children under their tutelage.
Having found the District owed a legal duty of care to Dibortolo, the appeals court defined “the applicable standard of care” as follows:
[S]chools are not intended to be insurers
of the safety of their pupils, nor are they
strictly liable for any injuries that may
occur to them… [T]he appropriate
standard is whether a defendant exercised
his duty with the level of care that an
ordinary prudent person would under the
same or similar circumstances.
Evidence of Negligence
Applying these principles to the facts of the case, the appeals court found sufficient evidence for a jury to find the District’s negligence caused Dibortolo’s injuries:
Viewing the evidence in the light most
favorable to the plaintiff, there was
sufficient evidence from which the jury
could have reasonably inferred that the
defendant’s employee, Merriman, was
negligent in discharging her duty to
exercise reasonable care for the safety of
the students who were under her control
by improperly instructing them to run
toward the wall in executing the vertical
jump, and thereby subjecting them to an
unreasonable risk of harm.
We pass no judgment on whether
Merriman’s conduct of instructing the
students to perform the exercise in this
manner constituted negligence. This is a
question of fact more appropriately
reserved for the jury. Thus, we limit our
review of the evidence to the precise
determination of whether there was
sufficient evidence to warrant the jury’s
consideration.
The plaintiff produced evidence that
indicated that Merriman did not
demonstrate the exercise before she
allowed the students to perform it. The
plaintiff also introduced evidence that the
students, including the plaintiff, were
expressly instructed to run toward the
wall if they wished to attain a higher
score.
Expert testimony was offered to show
that the proper method for performing
this exercise is to stand parallel to the
wall, and that to permit, much more,
instruct students to run toward the wall, is
to subject them to an unreasonable risk of
injury. The jury may have given weight to
this expert testimony and reached a
rational inference that the teacher’s
conduct exposed the students to an
unreasonable risk. The fact that
Merriman denied having instructed the
students to run during this exercise only
demonstrates that the evidence was at
least in a state of conflict such that
reasonable minds might draw differing
conclusions. To enter judgment on the
evidence in the face of such conflicting
evidence was improper…
[I]n the instant case, the evidence that
Merriman did not demonstrate the
exercise, that she specifically directed
the students to run during a structured
physical education activity such as the
vertical jump, when juxtaposed with the
expert testimony that such an
instruction is not only erroneous but is
also unsafe, would have entitled a jury to
reasonably infer that the teacher’s
conduct exposed the students to an
unreasonable risk.
In addition, the appeals court found “sufficient evidence from which the jury could have justifiably concluded that Merriman’s instructions were the proximate cause of plaintiff’s injury”:
A proximate cause of plaintiff’s injury
is one that sets in motion the chain of
circumstances leading to the injury. An
essential element of proximate cause is
considered to be the foreseeability of an
injury. The negligence will be deemed
to have been the proximate cause of
the injury where the injury was one
that, under the circumstances, should
have been reasonably foreseen.
The record indicates that the plaintiff did
not fall or stumble as she approached the
wall. Nor was there evidence that an
intervening event, such as another pupil
tripping or obstructing the plaintiff’s
path, occurred. Thus, the jury may well
have found that the injury that the
plaintiff incurred in colliding with the
wall was a direct and foreseeable
consequence of running toward the wall
in compliance with the teacher’s
instruction.
Participant at Fault?
On appeal, the District argued that the trial court’s “judgment on the evidence was proper because the plaintiff was contributorily negligent and incurred [i.e., assumed] the risk of her injury as a matter of law.” As noted by the appeals court, assumption of risk (referred to as “incurred risk” in Indiana) is generally a question to be resolved by the jury. In so doing, the jury must determine whether “the plaintiff had actual knowledge of the danger caused by the defendant and that he understood and appreciated the risk.” Under the circumstances of this case, the appeals court found sufficient evidence for a jury to find that Dibortolo has not necessarily assumed the risk of injury:
In light of the evidence here that the
plaintiff had participated in the exercise
as part of the physical education
course, had never performed the vertical
jump before the day of the injury, had
no knowledge of the proper way to
perform this exercise, and had no actual
knowledge of the danger caused by
defendant’s alleged instructions, we
cannot agree with defendant that the
only inference that could have been
derived from the evidence was that the
plaintiff incurred the risk of her injury
Similarly, the appeals court found the evidence did not necessarily lead to the conclusion that Dibortolo was “contributorily negligent as a matter of law.” On the contrary, the appeals court found evidence suggesting that Dibortolo had acted reasonably under the circumstances of this case.
The evidence that she did not stumble,
fall, or engage in unusual behavior that
deviated from the other students’
behavior may also be construed by the
jury as an absence of the plaintiff’s
contributory negligence…
The rule has long been adopted in
Indiana that the standard of care
applicable to a child engaged in the
type of activity characteristically
engaged in by children is that degree of
care that would ordinarily be exercised
by children of like age, knowledge,
judgment, and experience under similar
circumstances…
In the instant case, there was evidence
that the plaintiff, who was eleven years
old on the day of the accident, was to
perform the exercise for the first time,
as were some of her classmates, and
was relying on the teacher’s directions
for guidance. Reasonable minds may
differ as to whether the plaintiff had the
ability to realize and appreciate the
danger of an unfamiliar and improperly
taught exercise. Reasonable men may
also draw divergent inferences from the
evidence that the plaintiff had
performed the exercise in a manner
similar to that of the other students in
the same grade, in accordance with the
teacher’s instructions.
Since the evidence did not necessarily lead to the conclusion that Dibortolo was either contributorily negligent or had incurred the risk of her injuries, the appeals court found the trial court had erred in entering judgment for the District. The appeals court, therefore, reversed the judgment in favor of the District and remanded (i.e., sent back) the case to the trial court for further proceedings.
On remand, a jury would consider Dibortolo’s negligence claims and the District’s defenses (i.e., assumption of risk and contributory negligence.)
Dr. Kozlowski is an associate professor in the Health, Fitness and Recreation Resources program at George Mason University and legal/legislative counsel to the NRPA Division of Public Policy.
COPYRIGHT 1998 National Recreation and Park Association
COPYRIGHT 2004 Gale Group
