Berg v. Merricks

Lowe, J., delivered the opinion of the Court. In 1968, Michael Allen Berg (Mickey) was a nineteen year old senior at Crossland Senior High School in Prince George’s County, Maryland. On October 8th of that year he fractured his neck while performing on a trampoline during ⁶⁶⁸ his regular physical education class. He has been a paraplegic since the accident.

Mickey, together with his mother, instituted suit February 19, 1971 in Prince George’s County Circuit Court against his gym teacher, John M. Merricks; the principal of Crossland High, John V. Hrezo; the superintendent of schools, William S. Schmidt; the Board of Education of Prince George’s County; the seven members of the Board individually; and Prince George’s County for acts of negligence which he alleged caused his accident. On August 23rd, 1971,'Judge Robert B. Mathias sustained motions raising preliminary objections submitted by the County and the Board of Education, and the demurrers of the individual Board members. On April 25, 1972, Judge William B. Bowie grarted Superintendent Schmidt’s motion for summary judgment. The case was tried against the principal and the gym teacher.

On July 13, 1973, Judge Bowie granted the motions for a directed verdict of the remaining defendants. We find that all of the results reached below were correct and affirm all judgments. DIRECTED VERDICTS Appellants first direct our attention to a statement by the trial judge which suggests that he may have improperly viewed the facts when ruling on Merricks’ and Hrezo’s motions for a directed verdict. When a question arose as to the propriety of their submitting motions for a directed verdict for the first time at the close of the entire case, the trial judge commented: “Well, there wasn’t any motion made.

They don’t have to make a motion at the end of the plaintiffs’ case, but they did at the end of the entire case. And if they make the motion, obviously the tactic there is — and I am sure Mr. Miller and Mr. Dougherty discussed it — you don’t have the same burdens, either, at the end of the entire case.” The judge then said: “At the end of the entire case we can consider the ⁶⁶⁹ whole thing, and there is no presumption in favor of the plaintiffs’ case in that respect.” The judge’s decision on the issue before him was obviously correct, Md. Rule 522 a; however, the additional language he used to explain that decision contains an erroneous conclusion of law. A review of the record gives us no further clue as to his reason for using such unfortunate phraseology. Quite the contrary, the record indicates that he used the proper standard in granting the motions, i.e., resolving all conflicts in the evidence in favor of the plaintiffs and assuming the truth of all credible evidence and of all inferences fairly deducible therefrom which tended to support the plaintiffs’ right to recover.

Miller v. Michalek, 13 Md. App. 16, 17-18 . If indeed he did not view the evidence in the light most favorable to the plaintiffs as he was bound to do, we have done so and arrive at the same conclusion. 1 Appellants argue that there was sufficient evidence of primary negligence on the part of Coach Merricks and Principal Hrezo to require the court to submit his case to the jury. We do not agree. Coach Merricks Appellee Merricks has been a physical education instructor at Crossland Senior High School since 1963.

He graduated from the University of Maryland where he “majored” in physical education. He had at one time participated in intramural trampoline competition and qualified as a finalist. While a student at Maryland, he gave trampoline instructions at Gallaudet College for the Deaf. Pie taught trampoline at Greenbelt Junior High School for three years and at two elementary schools for two years.

On October 8, 1968, Coach Merricks was teaching his twelfth grade class to perform a “back pull over” 2 on the ⁶⁷⁰ trampoline. 3 Coach Merricks had previously explained the inherent dangers of the trampoline to his class. He told them that the trampoline “was a very dangerous piece of equipment, that it could injure you or hurt you or break your neck, that you had to respect it; no horseplay.” The class of approximately thirty-eight students was divided in two groups. Each group was assigned to one of two trampolines located twenty-five feet apart. After a round of warm up exercises, Coach Merricks gave instructions for the “back pullover” and asked one of the more advanced students to demonstrate it.

The students then began to take turns performing the exercise. Those waiting positioned themselves around the two trampolines as “spotters” to assist any performer who might be projected toward the frame or off the mat. Appellant’s expert witness indicated that four was a safe minimum number of “spotters.” Under the procedure employed by Merricks there were eighteen at each trampoline. A “spotter” is supposed to break the performer’s fall and keep him on the canvas bed, thereby minimizing the possibility of injury.

Coach Merricks stood midway between the two trampolines. Mickey Berg took his place on the trampoline. John Duke, one of the students present, testified on behalf of the plaintiffs that Mickey “bounced once or twice on the trampoline and went back over without a seat drop.” David Bender, another student, and also plaintiffs witness, said that Mickey’s stun't appeared normal until he came down, “then he twisted his body around a little bit and landed on a slant.” The third student witness, Ralph Thompson, testified that Mickey “jumped back a little, without doing a seat drop ⁶⁷¹ and came down on his shoulders.” Coach Merricks testified that he did not see Mickey’s attempt. Mickey related, “I got in the take off position and I believe I started up on my toes and the fall back, and from there I do not remember.” 4 Appellants submit that Coach Merricks failed to exercise due care for Mickey’s safety in 1) failing to watch him as he performed 2) requiring the class to hurry 3) neglecting to stand on the frame of the trampoline level with the performer ready to break his fall by hand 4) instructing the students that they were to land on their stomachs 5) ignoring the confusion among the students 6) failing to take account of the individual abilities of his students 7) teaching trampoline without adequate background or expertise.

Each of these assignments of error is an after the fact substitution of judgment for the instructional methods used. Appellants bear the burden of proving that one or more violated a standard recognized in the teaching of high school gymnastics or a procedure mandated by proper authority. The substance of appellants’ initial question has been decided by the Court of Appeals. Beyond that, even the record fails to support their assertion.

Appellants’ expert, Norman R. Holzaepfel, the varsity gymnastic coach at the University of Iowa, testified that an instructor of a class of forty twelfth grade boys using two trampolines should stand at some distance from the trampolines so that he could observe both groups at the same time. Neither this nor anything else in the record indicates that Mickey Berg’s tragic accident could have been avoided even if Coach Merricks had kept his eyes riveted on him. The Court of Appeals in Segerman v. Jones, 256 Md. 109 , ruled that a teacher who left the classroom while young children were doing push-ups and other fitness exercises was not liable for an injury sustained by one of the children during her absence. The Court said that it had not been shown that her presence could have prevented the accident. ⁶⁷² The injury could just as well have occurred while she was in the classroom.

The Court found that the proximate cause of the injury was the intervening and fully unforeseeable action of another pupil who left his place and did not do the exercise as instructed. The evidence in this case indicates that Mickey Berg’s injury was caused by his failure to follow Coach Merricks’ instructions. There was uncontradicted evidence that Mickey did not do a “seat drop” at the start of the exercise but instead jumped back (apparently attempting an aerial back flip) landing on his shoulders. Berg’s precipitous action was wholly unforeseeable.

The remaining acts or omissions by Coach Merricks, which appellants contend caused Mickey’s fall, fail to establish primary negligence for the same reason. There was evidence that Mickey began his exercise just a few minutes before the end of the class period and that the coach had told the students to hurry along so they could take showers. There was no testimony, however, by Mickey B.erg, or any other witness, that he felt rushed, or was anxious or concerned by the time. Appellants claimed that Coach Merricks should have used the trampoline frame, a desk pushed under the trampoline, or a new, recently advertised instructional pad as a platform so that he could have been nearer the students as they performed.

Coach Holzaepfel did not aver that these devices were generally used, that they were required for proper instruction or that they should be used in teaching a “back pullover.” Coach Merricks testified that the student spotters surrounding the trampoline provided adequate protection for anyone doing the exercise. He felt it necessary for an instructor to get on a trampoline only when students were doing flips or somersaults. Again, there was no evidence that the presence of Coach Merricks on the frame, a desk or a special platform (had one been available) could have prevented Mickey’s injury. Appellants maintain that it was improper to instruct students to land on their stomachs at the completion of the “back pullover.” Although the testimony differed as to a ⁶⁷³ preferred landing position, there was no evidence that the instruction caused the accident.

Mickey was injured not because he concluded the exercise improperly, but because he began it improperly. We cannot speculate that telling Mickey to land on his stomach caused him to land on his neck, or that telling him to land on his hands and knees could have avoided the injury. The record gives us no guidance. Appellants contend that Coach Merricks’ instructions confused his students.

Although one student did testify that he was slightly perplexed by the Coach’s instructions, Mickey’s own testimony indicated he understood what was expected of him. If any confusion existed, it is relevant only if related to Mickey’s state of mind. In the absence of any indication of confusion by him, we find this allegation without relevance. Appellants also maintain that the Coach should have kept a log indicating each pupil’s experience and daily progress on the trampoline.

They failed to establish, however, that such a procedure was generally followed or that it could have averted this accident. Without regard to the merits of appellants’ personal opinion of proper physical education procedure, they must provide some evidentiary standard beyond their personal preferences. Finally, appellants charge that Coach Merricks was unqualified to teach trampoline to high school students. Coach Merricks’ qualifications are set forth above.

Again, appellants failed to show that any more extensive training or expertise was, is or should be required. Without more, we cannot say that Coach Merricks’ education or expertise was deficient. Even in such a tragic situation, the burden is on the appellants to point to an act or omission which a jury could reasonably infer caused the injury, and to show that such an act or omission did not conform to a standard of reasonable conduct. There are very few persons who do not have strong opinions or criticisms of educational procedures, policies and practices.

The jury cannot be permitted to speculate on whether appellants’ theories were desirable or indeed to ⁶⁷⁴ substitute their own. They must be provided a standard with which to evaluate the procedures used by professionals; appellants may then point to that which they feel violated that standard. No instructional standard was established. The judge was clearly correct in refusing to permit the jury to speculate on the “might have been theories propounded by appellants.” “ ... [I]n any action for damages the court is not justified in inferring negligence merely from possibilities.

A mere surmise that there may have been negligence on the part of the defendant will not justify the court in submitting the case to the jury. The plaintiff must produce some evidence that the defendant, either by his act or omission, violated some duty incumbent upon him that caused the injury. If there is no evidence upon which a rational conclusion may be based in support of the plaintiffs claim, the court should withdraw the case from the jury. Baltimore & Ohio R. Co. v. State, to Use of Savington, 71 Md. 590, 599 , 18 A. 969 ; Riley v. New York, Philadelphia & Norfolk R. Co., 90 Md. 53, 58 , 44 A. 994 ; Sullivan v. Smith, 123 Md. 546, 558, 559 , 91 A. 456 .” Brehm v. Lorenz, 206 Md. 500, 506 .

When viewing the evidence in the light most favorable to appellants we cannot totally disregard the testimony elicited by the appellants but adverse to their position. Of the three students present the day of the accident, two, Duke and Thompson, testified that Mickey did not do a seat drop as instructed but just jumped back and came down on his shoulders without first gaining momentum by dropping to the mat. The third student, Bender, testified that Mickey’s stunt appeared normal until he landed. Bender admitted, however, that his memory of the events was quite vague.

He did not testify that appellant did the required seat drop. Even if Mickey’s precipitous backward movement was not the sole cause of his injury, it surely was a contributing factor. It was, however, the only evidence of how the injury occurred and was an act which a reasonable, careful and ⁶⁷⁵ prudent gym teacher could not have anticipated under the circumstances. To say that Coach Merricks should have anticipated that a student who knew he was supposed to drop to his seat on the mat would flip to his shoulders would be to permit sheer conjecture. “Such gossamer speculation is the stuff from which dreams are made and not the foundation stone for an action in negligence.” Segerman v. Jones, supra, 134.

Appellants quote a statement from Segerman, supra, which they hold to be the “general community attitude:” “Parents do not send their children to school to be returned to them maimed because of the absence of proper supervision.” Such a statement in the face of the tragedy here is indeed compelling; however, teachers who conform to every educational standard known to them should