Opinion
No. 227.
Argued January 3, 1973. —
Decided February 8, 1973.
APPEAL from a judgment of the circuit court for Rock county: W.L. JACKMAN, Circuit Judge of the Ninth Circuit, Presiding. Affirmed.
For the appellants there was a brief by Campbell, Brennan, Steil Ryan, S.C., attorneys, and James E. Brennan of counsel, all of Janesville, and oral argument by James E. Brennan.
For the respondents there was a brief by Eli Block Law Offices and Eli Block of Janesville, and oral argument by Eli Block.
This is an action for personal injuries suffered by the minor plaintiff when he fell while performing a gymnastic exercise in a supervised physical education class in a Janesville high school. The jury returned a verdict wherein it found both the physical education instructor and the minor plaintiff negligent. The jury then found that the negligence of both parties was not causal. The comparative negligence question was not answered and a substantial amount was awarded as damages.
In this appeal we are primarily concerned with the question of negligence and causation.
On December 21, 1967, the plaintiff Terry Lueck (hereinafter Terry) was attempting to do a forward roll, a gymnastic exercise, on a set of still rings when he slipped and fell to a floor mat in the gymnasium at Craig Senior High School in Janesville, Wisconsin. He sustained substantial injuries. At that time Terry was seventeen years old, a senior at Craig, and was participating in a gymnastic course he had elected to take. His grades in physical education for these two years were all "C's" except for one "D" in weight lifting. The method of grading was not based just on one's ability but also class attendance, attitude and the use of a merit and demerit system.
In his sophomore year Terry was tested and passed all of his stunt requirements on the still rings in gymnastics. In his junior year he also passed all of his requirements in gymnastics. By the time Terry reached his senior year he elected to take gymnastics but was still classified in the beginner's group. A "beginner" meant one who is not a "skilled gymnast." Notwithstanding this classification, Terry could do satisfactorily all of the following stunts on the still rings: a single cut, a double cut, a kip, a bird's nest, an inverted hang and the forward roll. Terry testified that he worked on the still rings many times and more often than any other apparatus in gymnastics.
Not to the "satisfaction of a skilled gymnast," but good enough to pass the course.
It is undisputed that a forward roll is an elementary stunt and a common activity on the still rings. Terry testified that the forward roll is a simple activity and not an advanced skill. He said he did the forward roll couple of times a week in his senior year on the same rings on which he was hurt. The accident occurred in the seventh week of a nine-week course. Terry testified that when he had tried the forward roll prior to the accident he had asked for and got a spotter to stand by and watch him on the rings. Sorenson testified that he saw Terry do the forward roll five to 10 times prior to the accident. He said it was not difficult for Terry to perform, that Terry had no trouble performing it, that Terry performed it well and he would have received an extra grade for doing it.
In addition to the still rings, Terry had worked out and performed stunts on the parallel bars and could do mounts, straddles and dismounts on the side horse satisfactorily.
With respect to class supervision, control and safety, the following facts are undisputed: Terry testified that in his sophomore, junior and senior years in gymnastics there was an orientation period for at least the first two weeks of classes. During this period the instructor would take all of the students around to all of the various pieces of apparatus and give a demonstration on how they were to be used. The instructor advised them on what safety and precautionary measures must be taken when using the apparatuses; and told the students that spotters should be used when they were trying an activity, or were not sure of themselves, or attempting a new stunt.
Sorenson instructed Terry only in his senior year.
Furthermore, that if they felt they could not accomplish, or might not accomplish a stunt, they were supposed to request or get a spotter. The student was not supposed to try anything other than an exercise he performed before without first requesting Sorenson to show him (the student) how to do it. This was all in accordance with the school's safety rules. Terry testified that throughout these three years, when he was trying an activity he felt he was not sure of, he would ask a spotter to spot for him — and this included the forward roll. Further, that he understood fully all of the instructions given with respect to safety precautions and the use of spotters, but that he forgot the use of a spotter before the accident.
Sorenson testified that spotters were not specifically assigned to any one student. Rather, it was up to the student to use his own judgment based on the orientation instructions. When a spotter was requested or sought, one was always available.
The students were not required nor directed to work on any specific apparatus, nor to do a particular stunt on any apparatus. That is, they were allowed to work on the piece of apparatus they wished during their daily free period. To insure their safety they were required to work in a buddy system of spotting. If one wanted a spotter he need only ask, and this was also true with respect to learning new stunts or if one needed help. The purpose of this freedom or the lack of strict supervision was based on several factors. First, a student in the short amount of time allotted in class could not become skilled in all six, seven, eight or nine pieces of apparatus. Therefore to make them somewhat skilled, or more skilled or developed on a piece of apparatus, they were allowed to choose what they liked. Second, having a spotter always assigned to spot another student was not good gymnastic practice. The plaintiffs' expert witness, Dr. De Carlo, testified that spotters should not always be used nor should a class be always rigidly or strictly supervised; and that free periods should be offered and provided for because one should not stagnate the student. It is desirable to have the student develop new skills, to create incentive and interest in the program and to develop his potential. De Carlo further stated that free periods are recommended and valuable, and a student should never be overspotted to the point where he will constantly depend on a spotter's assistance because you want to build and have him attain a feeling of self-confidence that is very much desired in gymnastics.
On the day of the accident class started at 10:03 a.m. Terry changed into his gym clothes, he went into the gym and ran eight to 10 laps around the gymnasium — a recommended warm-up practice. After roll call Sorenson gave the whole class general instructions to work on the piece of apparatus each student preferred. Thereafter Sorenson said he saw Terry do a left leg cut on the still rings. After Terry performed the left leg cut Sorenson called out to Terry from the other side of the gym, saying: "Terry, where's your spotter?" Terry did not respond but just walked away. He then went to the parallel bars and then to the side horse and did exercises on them. Shortly thereafter Terry did the forward roll on the still rings. This is when he fell. It is undisputed that Sorenson did not, by his direction, specifically assign a spotter for Terry; nor did Terry seek or request a spotter's assistance at that time. When Terry was asked why, he said he had just forgotten.
When Terry was doing the forward roll on the rings Sorenson was three to four feet away with his back turned helping another student. Sorenson was not aware that Terry was behind him. Walter Burr Hadden, a classmate of Terry's, witnessed the accident and gave the following description of what happened:
"I was sitting on the mats approximately around the parallel bars off toward the wall and Terry was trying to like do a somersault forwards on the rings and his feet were more or less straight up in the air and he was about halfway through it and he just, for a split second, he stopped and his arm like gave out and he fell flat, well, like the corner of his face — . . . — and he landed somewhat on his stomach and then his side, he was laying on sort of sideways on the mat face down."
Also Stephen Paul Wollin witnessed the accident. He stated he was only four or five feet away. He described the incident as follows:
" Q. Could you tell us briefly what you observed?
" A. About the accident?
" Q. Yes.
" A. Well, I was just standing there — I wasn't performing a stunt — and I noticed Terry started to do a stunt which looked like a forward roll and, as his feet started to come down, his one arm seemed to get twisted in a way that he couldn't seem to be able to follow through and complete the stunt; and then he let go with one hand and hung by the other hand for just a second or two and then dropped to the floor or to the mat.
" Q. Did you notice how he landed or on what hit first, I mean?
" A. To the best of my recollection he landed on the side of his head and on the shoulder.
" Q. Did he have any spotters at that time?
" A. No, he did not.
". . .
" Q. Now, when Terry fell to the mat, did you observe what part of his body hit the mat?
" A. I believe it was, to the best of my memory, that the side of his head and his shoulder hit when he fell.
". . .
" Q. Now, when Terry got, as you say, his arm twisted so that he could not come around, did you hear him ask anybody for help? Did he look at you and holler for help?
" A. No.
" Q. As he hung there by one arm did he call for help then?
" A. No.
" Q. Did Mr. Sorenson appear right at the mat after Terry fell?
" A. After he fell I looked down at him and asked him if he was all right and I noticed blood in his mouth and then, when I looked up to see where Mr. Sorenson was, he was standing there next to me."
Both litigants made motions after verdict to change portions of the jury's findings of fact. The court denied plaintiffs' motion and granted the defendants' motion for judgment dismissing the plaintiffs' complaint.
Plaintiffs appeal.
Although the defendants-respondents (city of Janesville and Sorenson) in their motions after verdict moved the court to change the verdict answer concerning Sorenson's negligence from "yes" to "no," and in their brief herein have made a passing reference to his negligence, the major thrust of both briefs is to the question of causation. The plaintiffs-appellants contend that Sorenson's negligence should be held to be a cause of the accident and injuries as a matter of law or, in the alternative, a new trial should be ordered in the interest of justice.
From our examination of the entire record we feel compelled to consider whether Sorenson was negligent.
We are mindful of the often stated rule that if there is any credible evidence under any reasonable view or any reasonable inferences derived therefrom that support a finding of fact by the jury that neither trial court nor this court should change that answer. Conversely it can be said if there is no such evidence either court can change the answer as a matter of law.
Hall v. Arthur Overgaard, Inc. (1972), 55 Wis.2d 247, 198 N.W.2d 605; Paul v. Hodd (1955), 271 Wis. 278, 73 N.W.2d 412; Thorp v. Landsaw (1948), 254 Wis. 1, 35 N.W.2d 307.
In addition to the definition of negligence or failure to exercise ordinary care commonly used in jury cases, the trial court instructed the jury as to the duties of Sorenson as follows:
Wis J I — Civil, Part I, 1005.
"I will now instruct you with regard to the duties of a teacher; and this refers to Question 1, inquiring about whether Ted Sorenson was negligent. You are instructed that a teacher occupies a position in relation to his pupils comparable to that of a parent to children. He has the duty to instruct and warn pupils in his custody of any dangers which he knows or in the exercise of ordinary care ought to know are present in the gymnasium; and to instruct them in methods which will protect them from these dangers, whether the danger arises from equipment, devices, machines, or other causes. A failure to warn students of such danger or to instruct them in the means of avoiding such danger is negligence. In arriving at your determination as to whether or not the defendant Ted Sorenson exercised ordinary care you may weigh and consider the age, intelligence, and experience which he knew or ought to have known that the plaintiff and other students in the class possessed. You may further weigh and consider the responsibilities which have been placed upon the defendant Ted Sorenson by his employment, such as the curriculum he was required to carry out, the daily schedule which was imposed upon him, the number of pupils assigned to him in the class, the size and arrangement of the gymnasium, and the equipment, devices, and other objects therein. If you become Satisfied by the greater weight of the credible evidence to a reasonable certainty that the defendant failed to exercise that degree of supervision, instruction, and care which an ordinarily prudent physical education teacher would have maintained over the pupils or furnished to the pupils, then you will answer the question yes. If you are not so satisfied, you will answer the question no."
These instructions were not objected to at the trial nor are they challenged on appeal. We believe they fully and fairly advise the jury as to Sorenson's duties toward the plaintiff Terry consistent with the evidence in the case.
Although the complaint has additional allegations of negligence on the part of Sorenson, they find no support in the evidence; the basic claim of the plaintiffs is that Sorenson's negligence consisted of his failure to properly instruct and supervise his students.
Plaintiffs maintain that ". . . such negligence culminated in the most glaring item of negligence in the case, to-wit, defendant's failure to provide a spotter for the plaintiff, Terry Lueck, . . . so as to prevent his injury." We do not believe the evidence supports this contention. Plaintiffs seek to have the court charge Sorenson with an unreasonably high standard of care. That is, notwithstanding the present duty and standard of care imposed by law, Sorenson should have the additional duty to make sure every student who performs on any gymnastic apparatus while in class has a designated and specifically assigned spotter to spot, assist and prevent the possible fall of the performer at any time when working on an activity therein. To support this proposition plaintiffs offer only Dr. De Carlo's expert opinion based on a hypothetical question. His opinion with respect to that hypothetical does not establish that this contended standard of care should be imposed against Sorenson. The question was based in part on the facts of this case, but it also assumed facts not in evidence, included incorrect facts, conjecture and speculation. For instance, there was credible testimony that Terry was "poorly coordinated" and not "athletically inclined." Terry's mother said Sorenson told her Terry was awkward but Sorenson denied this fact. Even if one assumed Terry was somewhat awkward, it does not necessarily follow that Terry was poorly coordinated — especially in light of his gymnastic achievements prior to the accident. As for being athletically inclined, there was testimony that one of his classmates felt that he was better than Terry and Terry was not a very athletic person. But this testimony is pure conjecture and is an unfounded opinion. The evidence clearly shows that Terry has participated in team sports. For example, just prior to his nine-week gymnastic course in which he was injured, he participated in soccer football. Further, one only needs to look at his prior interests and participation in gymnastics. It was next incorrectly assumed that Terry got a "D" as a final grade in gymnastics. The evidence clearly shows that he got all "C's" except for one "D" in weight lifting. The hypothetical also assumed that safety rules and the use of a spotter were not even emphasized nor ever strictly enforced. This is simply not true. The hypothetical also stated incorrectly that Sorenson left the gymnasium during class to drink coffee without leaving anyone in charge. This again is not the fact. Conjecture, speculation and incorrect assumptions like these permeated the entire hypothetical. The inaccurate hypothetical led Dr. De Carlo to state that based on its facts the gym instructor did not comply with the standards that a reasonable and prudent teacher would follow in teaching a course in gymnastics. The next question plaintiffs posed to Dr. De Carlo was his ". . . opinion as to whether or not Mr. Sorenson complied with the standards of an ordinarily prudent physical education teacher in the supervision of his class on the day in question." Dr. De Carlo said:
"My opinion is that for the general teaching of physical education, which would include all areas, it more than likely would be adequate; but when you're specifically involved with apparatus and particularly with beginners, I would say the overall supervision could have been more wisely handled."
This is the whole point — Mr. Sorenson's supervision of the class that day was "adequate." It would be impossible to watch every student all of the time during the class period. De Carlo never said Sorenson did not comply with the standards that a reasonable and prudent teacher would follow in teaching gymnastics. In fact, the word "adequate" would allow only one reasonable inference. That is, Sorenson did comply with the required standard of care. Whether De Carlo would have personally handled it "more wisely" is not the test. What De Carlo would do and what the standard of care requires are two different things. The standard is what determines one's negligence and not what others may have personally done. A teacher should only be subjected to liability by the standards of care imposed by law and nothing more. Further, De Carlo admitted on cross-examination that not all of the experts in this field agree with his philosophy or opinion with respect to how a gymnastic course should be supervised and run. Lastly, when De Carlo was asked whether a spotter, to a reasonable degree of certainty, would have prevented the accident, De Carlo said:
"Yes, well very hypothetical, but in my opinion he could have prevented that accident, yes."
Needless to say, an accident that "could have" been prevented is only a mere possibility and is different from saying it "would have" been prevented to a reasonable certainty.
Without restating the evidence, it is our opinion there is no credible evidence nor reasonable inferences that could be drawn from the evidence that will sustain a finding that either the municipality or its employee Sorenson failed to use ordinary care in the furnishing of adequate equipment or in the instruction, supervision and assistance given to the injured plaintiff, Terry, before and at the time of his fall and injury. The plaintiffs have failed to meet their burden of proof so as to establish negligence on the part of the defendants. The motion to change the answer from "yes" to "no" in the question inquiring as to the negligence of Sorenson should have been granted.
When it appears that the plaintiffs have not established negligence on the part of the defendant, the rest of the verdict becomes, in effect, surplusage. However, even if we assume negligence on the part of Sorenson had been established, we agree with the trial court wherein it concluded the jury finding that any negligence on the part of Sorenson was not a cause of the accident must be sustained.
By the Court. — Judgment affirmed.