Morris v. Ortiz ( 1968 )

LOCKWOOD, Justice

(dissenting) :

I cannot agree with the decision of the majority of the Court. I believe the decision of the Court of Appeals, Division Two, was correct in holding that reasonable minds ■could differ as to the inferences to be drawn from the evidence as to whether defendant Ortiz was negligent.

On appeal by the plaintiff from a verdict directed for the defendant, the appellate court must view the evidence in a light most favorable to the party against whom the verdict is directed. LeRoy v. Phillips, 97 Ariz. 263, 399 P.2d 669 (1965); Robledo v. Kopp, 99 Ariz. 367, 409 P.2d 288 (1965). It is also well established that a verdict will not be directed in a case where the evidence is conflicting or where on all the facts and circumstances there is room for fair and sensible men to differ in their conclusions. Campbell v. Brinson, 89 Ariz. 197, 360 P.2d 211 (1961). Viewing the evidence in a light most favorable to the plaintiffs, I am satisfied that reasonable minds could reach different conclusions on the inferences to be drawn from the evidence. Whether Ortiz gave an order just prior to the accident which was (a) definite and explicit, and which called for but one response from the plaintiff and the other boys working on the top; or was (b) couched in equivocal terms susceptible of more than one response by the plaintiff and the others; or was (c) inaudible to those to whom it was directed, are questions which may prove crucial in the minds of the jurors on the issue of the standard of care required of Ortiz under the circumstances. The transcript clearly discloses a conflict on this aspect of the testimony in the case. Moreover, the triers of fact might affix liability notwithstanding their finding on the aforementioned question if, in their minds, they would find the circumstances and conditions existing at the time of the accident of a gravity which would require Ortiz to stand by to be certain that the plaintiff and the others executed the order and ceased from further attempts to bend the top. I believe the evidence was sufficient for the jury to consider whether there was danger present which could have been foreseen by the defendant Ortiz.

Courts have for many years grappled with the problem of establishing a fair and reasonable standard for determining the extent of responsibility of teachers in the public schools when students under their supervision have sustained injuries arising from the alleged negligence of the teachers. Mindful of the vital function teachers serve in the education and molding of youth, courts have been reluctant to hold teachers liable in the fear that this function might be substantially impaired. Yet there are conflicting interests involved in such cases where negligent injury is alleged. As was succinctly noted by Judge Conway in his dissent in Ohman v. Board of Education, 300 N.Y. 306, 90 N.E.2d 474 (1949): “Parents do not send their children to school to be returned to them maimed because of the absence of proper supervision or the abandonment of supervision”. 300 N.Y. at 311, 90 N.E.2d at 476 (1949).

Today in a majority of our sister states, teachers committing negligent torts rest under the protective aegis of governmental immunity. In Arizona, however, the theory of governmental immunity has been abandoned. Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963). The problem here, therefore, exists within the framework of the student-teacher relationship, embracing the statutory right vested in a school district and its teachers to control the conduct of students required by law to attend school, and the correlative duty to protect students from hazards and dangers reasonably to be anticipated and foreseen.

An examination of the cases and commentaries discloses that three basic duties arise from the teacher-student relationship: (1) the duty to supervise; (2) the duty to exercise good judgment; and (3) the duty to instruct as to correct procedures, particularly (but not exclusively) when potentially hazardous conditions or instrumentalities are present. These basic duties must coexist with the whole purpose for the teacher-student relationship, viz. education.

In the recent case of Eastman v. Williams, 124 Vt. 445, 207 A.2d 146 (1965), the Supreme Court of Vermont held that breach of a teacher’s affirmative duty of supervision would constitute actionable nonfeasance. A child had been injured by a defect in a piece of playground equipment, a defect of which the teacher supervising play had knowledge. A verdict had been directed for the defendant teacher. The Court stated that sufficient evidence had been adduced to permit a jury’s consideration of whether a reasonable, prudent person would have thought that injury might he likely to occur if warning were not given or use of the defective equipment not prohibited.

The case of Mastrangelo v. West Side Union High School District, 2 Cal.2d 540, 42 P.2d 634 (1935), involved the duty to supervise and to instruct. There the plaintiff-student was injured by an explosion caused by his selecting a wrong ingredient and mixing the ingredients improperly in the chemistry laboratory. The plaintiff testified that the defendant teacher was in the class, had walked behind the plaintiff during the mixing, but had given no order or instruction at that time. Shortly before the explosion, the teacher was approximately fifteen feet from the accident. The Court stated:

“From the foregoing evidence a reasonable inference may be drawn that the chemistry instructor [defendant] saw the grinding of the ingredients * * *, yet he failed to warn the boys against the danger of that method of mixing them.” 2 Cal.2d at 547, 42 P.2d at 637 (1935).

The relationship of a public school teacher to his pupil is in some respects in loco parentis. Having the right to control and supervise the pupil, there is a correlative duty to act as a reasonable and prudent parent would in like circumstances. Proehl, Liability of Teachers, 12 Vand.L.Rev. 723, 740 (1959). The rationale of in loco parentis does not however apply in determining liability for a negligent tort against the pupil. In most jurisdictions the parent is not liable for negligent tort against his child, but the public school teacher may be.

The problem lies in determining what criteria should be used to meet the standard of care necessary to be exercised by the public school teacher. If the probability of harm can be foreseen, the public school teacher should take such measures as are reasonable and prudent to prevent an injury to the student. As the gravity of the possible harm increases due to conditions or circumstances to which the student is subjected, the apparent likelihood of its occurrence need be correspondingly less. No one can deny that few sectors of public and private existence are safe from risks to life and limb; the schoolyard, the classroom, the shop class, the chemistry laboratory certainly have their dangers and their risks. Teachers presumptively endowed with superior skill, judgment, intelligence and foresight, must fulfill the strong duties arising from their public position by exercising care commensurate with the immaturity of their charges and the importance of their trust. Satriano v. Sleight, 54 Cal.App.2d 278, 129 P.2d 35 (1942).

“The characteristics of children are proper matters for consideration in determining what is ordinary care with respect to them, and there may be a duty to take precautions with respect to those of tender years which would not be necessary in the case of adults.” Shannon v. Butler Homes, Inc., 102 Ariz. 312, 317, 428 P.2d 990, 995 (1967).

However, age of the injured plaintiff is not the controlling element to tip the balance between liability and non-liability.

“The boy in this case was nearly eighteen, but we should not close our eyes to the fact that even boys of seventeen and eighteen years of age, particularly in groups where the herd instinct and competitive spirit tend naturally to relax vigilance, are not accustomed to exercise the same amount of care for their own safety as persons of more mature years.” Satriano v. Sleight, 54 Cal.App.2d 278, 283, 129 P.2d 35, 38 (1942).

The evidence here discloses that the boys were attempting to bend the auto top by jumping on it, that Ortiz had observed this, and had remarked, “It’s too bad, but it can’t be bent. Take it out and dump it in the area at the back.” Then, knowing the boys had been jumping on it, and presumably knowing the nature of teenage boys to continue to try to achieve an objective without exercising adult judgment, Ortiz walked away without waiting to see that the boys had stopped jumping on a metallic frame which might be dangerous to one holding onto it.

The question to be determined by the trier of fact was: Did the teacher do such acts or omit to take such precautions that under the circumstances he, as an ordinarily prudent person, ought reasonably to have foreseen that to do otherwise would thereby expose the interest of a student to an unreasonable risk of harm. Further, it is not a requirement that the teacher foresee the exact injury that would take place once the risk or danger is foreseen, or could reasonably be foreseen by an ordinarily prudent person under the circumstances; what has to be shown is a causal relationship between the alleged breach of duty and the resulting injury. I believe there was sufficient evidence that should have required submitting the case to the jury to determine whether Ortiz was negligent in shop supervision under the existing circumstances.