Segerman v. Jones

Singley, J., delivered the opinion of the Court. In 1968, Mary Latane Jones was a member of Mrs. Rita Segerman’s fourth grade class at the Rollingwood Elementary School in Montgomery County. On 10 January of that year, Mrs. Segerman left the classroom for a few minutes on school business 1 while the class was engaged in a program of calisthénics. During the teacher’s absence and while the exercises were being performed, the back of Mary’s head was struck by the feet of a fellow pupil, Robert Glaser (Bobby), and two of her front teeth were badly chipped.

Mary’s father, as Mary’s next friend and in his individual capacity, brought suit against Mrs. Segerman and Bobby, alleging that Mary’s injuries were the result of their negligence. Both defendants filed general issue pleas and the case went to trial before the Circuit Court for Montgomery County without a jury. At the end of the plain ¹¹² tiff’s case, Bobby’s motion for a directed verdict in his favor was granted, and judgment was entered in his favor for costs. 2 From judgments against Mrs. Segerman entered on verdicts in amounts of $5,000.00 in Mary’s favor and $1,131.00 in favor of Mary’s father, Mrs. Segerman has appealed. We shall undertake to summarize such parts of the testimony as are pertinent to the issue before us.

Mrs. Segerman, A.B. Syracuse University, M.A. New York University, had taught school in Oceanside, New York for an unspecified period of time and in Montgomery County for five years prior to the accident. She had been a teacher at Rollingwood for a year and a half, and had taught the fourth grade class since September, 1967. The following are relevant excerpts, respectively, from the “Program of Studies” and from “Grades K-6, Physical Education, Course of Study” issued to teachers in the public schools of Montgomery County, which were introduced below: “Every elementary school child participates daily in a program of directed physical education activities during which time the teaching of skills, techniques, attitudes, and understandings is stressed. The minimum instructional period is 150 minutes per week.

The program is developed and implemented through the cooperative efforts of classroom and physical education teachers. Children participate in active and quiet games, individual and team games, tumbling and apparatus work, self-testing activities, and rhythmic activities.” “Indoor areas for physical education may include an all-purpose room, a regular classroom, or an empty classroom * * ¹¹³ There were 30 children in Mrs. Segerman’s class at Rollingwood. The classroom was 32 feet long, with an additional three feet used as a cloakroom, and 25 feet wide. The room contained 30 moveable desks, each 17% by 23% inches, and 30 chairs which slid under the desks.

There were also in the room a work table, three feet by six feet; two bookcases, 11 by 28 inches; a teacher’s desk, 29% by 53% inches, and a chair which slid under the desk. Mrs. Segerman testified that the physical education teacher came to Rollingwood on Fridays; that on other days, “It’s up to the individual teacher to carry on her own phys. ed. program,” and that since September, 1967, she had conducted exercise programs for Mary’s class in the classroom. She also said that the members of her fourth grade class had been doing push-ups, sit-downs and jumping-jacks in the physical education class but that push-ups had never been previously done in her classroom, although jumping-jacks had. According to Mrs. Segerman, the day when the accident occurred was in “a snowy week.” She remembered “the entire week as being an indoor week”, when “[t]he children could not go outdoors for phys. ed. during any part of that week at all.” Mrs. Segerman said that on 9 January, she asked the class if they were familiar with a record called “Chicken Fat” 3 and when “so many of the children knew the record * * * asked them to bring it in.” Margaret Wydro, a physical education teacher assigned to the Rollingwood area, described the record: “I think it was about five years ago.

It was written specifically for the President’s Council on Youth Fitness, to implement the program that President Kennedy had started. It was ¹¹⁴ written by Meredith Willson, sung by Robert Preston; published by Capitol Records as a service to the Junior Chamber of Commerce, who was hopefully trying to distribute it at no cost to all schools throughout the country.” Four children brought the record to class. At about 11 o’clock on 10 January, Mrs. Segerman played the record. As Mrs. Segerman recounted it: “Q. Is that the record that you played that day?

A. That is it. “Q. Mrs. Segerman, before playing this record that day that this girl in the class had brought in, did you go over it with the class ? A. Yes. “Q. What did you do? How did you do it? A. First of all I asked, before I played the record, whether all the children knew it.

And no one raised their hand to say that they did not know it. And I said we would listen to it first to make sure that we all knew how to do the exercises. “Q. Were they at the time sitting down; standing up? A. No. They were sitting down in their seats. I had not done anything.

I just wanted them to listen to it first. * * * “So we all were in our seats listening to the record. After the record played I asked the children then was there anyone who did not know how to do any of the exercises. And no one raised their hand. So to the best of my knowledge they all were aware of the exercises. “Q. Have they done all of these same exercises in gym class that you had seen?

A. Yes. “Q. All right. A. At that time, at that point I took the children and placed them around the room. “Q. How did you place the children around the room? A. Generally as close to their desks ¹¹⁵ as possible, or as close to this place they were supposed to be sitting; however, of course with the arrangement it would necessitate my moving certain children because the desks were close together, so that I utilized aisles and whatever space on the sides and front and back of the room that I had. “Q. Do you know now just where you placed the children on that day? A. I could not place thirty of them if I had to. “We could reconstruct it with the children, if we called the same children back again, I’m sure. “Q. I mean do you know now?

A. Not thirty of them, no. “Q. Generally what would you do with respect to children that were on the same aisle, as these people would be sitting here, and these people would be there. That would give you six in an aisle. A. The normal procedure would be to place the children arms’ distance apart, which is what I actually did. “THE COURT: Place them what ? “A. Arms’ distance apart. “In other words, you have the child put their arm out, and the next child does that. “After a while you get to judge the distance. You know approximately what is a safe distance between the children.

And this is what I did with the group. “Q. So you would take some people, instead of standing them by their seats, and move them in different places? A. Yes, definitely. “Q. So you did this before you played the record the second time? A. Yes; oh, certainly. “Q. Now, before you played the record the second time, did you say anything to the children there? A. Yes. ¹¹⁶ “Q. What did you tell them?

A. First I made sure, as I said, that we all knew what was expected of them. I told them not to move from where I had placed them, that I was going into the office to attend to something and that I would be back in a few minutes and that they were to follow the instructions on the record. “Q. Did you tell them not to move? A. Definitely. * ❖ ❖ “Q. Then what did you do when you put the record on? A. I waited to see how the procedure was going, and I stayed for a few minutes to make sure that there was sufficient room and that things were going well. “Q. The few minutes that you were there, did everything go all right?

A. Yes.” Mrs. Segerman then left the classroom and walked across the hall to the principal’s office. On cross-examination, she said she assumed she was out of the classroom “four or five minutes.” What happened next is told by Mary: “Mrs. Segerman put on a record, ‘Chicken Fat’; and she told us to follow the record. And we’d started doing, working, and we went through the first side .of the record. And then when we were starting the second side, Mrs. Segerman, I think she told us that she’s going out of the room, I’m almost positive she did, and she left.

And — and Bobby Glaser was in the back of the room, and he moved up because he couldn’t hear the record player. And he was doing his push-ups, but he brought up his legs and was resting on his knees. And when he brought his feet down they went over the back of my head and they came down on the floor. “Q. What came down on the floor? A. My head. ¹¹⁷ “Q. Your head?

A. And hit, my teeth hit the floor and they came out. “Q. Your teeth came out? A. Yes.” Mary admitted that the class had been told not to move from their places, but did not remember that the children had been spaced about the classroom. Bobby Glaser did not testify, but Susan Turmala, another member of the class, said Bobby’s “knees bent and his feet went up towards the ceiling.” Mrs. Segerman described the record as “perky,” as “a very catchy beat.” Perhaps the record can more informatively be described by saying that it is in 4/4 time, much like that of “Seventy-six Trombones” from “The Music Man” for which Willson composed the music. There follows a sample of Preston’s recitative which calls for the exercises: “Touchdown, every morning — ten times, not just now and then.

Give that chicken fat back to the chicken and don’t be chicken again. No, don’t be chicken again. Push up, every morning—ten times. Push up, starting low Once more, on the rise.

Nuts to the flabby guys Go, you chicken fat, go away. Go, you chicken fat, go. Good morning! Hands on hips—place.

Now then, touch your toes with me Eeady, touch down Up everybody—up, down Ten times, not just now and then. (Counting from one through ten in background) One, two, three, four, five, six, seven, eight, nine, ten—up. Give that chicken fat back to the chicken and don’t be chicken again. ¹¹⁸ No, don’t be chicken again. No, don’t be chicken again.

Halt. Hit the dirt—hit! Push-ups next. Nice and steady, not too fast.

Ready. Push up—down—every morning. Ten times. Push up (push), starting low; starting low Feet down (down), that’s fine, on the rise (chorus echoing words) Nix to the flabby guys Go you chicken fat go, go away.

Go, you chicken fat, go. (down—up—down) ” Based on the testimony, the lower court found the following facts: “1. The infant plaintiff and the infant defendant were about nine years old on January 10, 1968, when the occurrence complained of took place in Classroom No. 12 of the Rollingwood School, at which time the defendant, Rita Segerman, was employed by the County Board of Education as a schoolteacher and charged with the proper supervision of the infant plaintiff and the infant defendant. “2. The occurrence took place while thirty children were doing calisthenics in Room 12 which measured 25 feet by 35 feet—which room —less three feet for closet space — contained thirty pupils’ desks and other furniture. “3.

The calisthenics were ordered by the defendant, Rita Segerman, to be done in accordance with the instructions on a phonograph record known as Chicken Fat; the record required toe touch, push-ups, sit-ups, torso twists, pogo springs, jumping jacks, march in place, arm circles, bicycle ride, deep breathing and run in place, all to be done in fast time. “4. The infant plaintiff and the infant defen ¹¹⁹ dant had not heard the record prior to January 10,1968. “5. The infant plaintiff sustained her injuries when the infant defendant kicked her head while they were doing push-ups. “6. The type of calisthenics called for in Chicken Fat were customarily done in the All Purpose room or outdoors, and always under the supervision of a teacher. “7.

The All Purpose room measures 69 feet by 48 feet and could have been used for the calisthenics; nor was there a logical reason why the children could not have been taken outdoors. “8. The defendant, Rita Segerman, well knew that the infant defendant had a propensity to disobey instructions, and to be active and that he required more supervision than the other children to the extent that her concern for the child caused her to recommend that he be evaluated by a psychologist.” We cannot say that the court’s finding of facts in Nos. 1 through 7 was clearly erroneous, Maryland Rule 886 a, although there was a conflict in testimony as to whether Mary and Bobby had heard “Chicken Fat” before, and Mrs. Segerrnan’s testimony that the accident occurred during “an indoor week” and that the all-purpose room was not available at 11 o’clock because it was being set up for use as a lunch room beginning at 12 o’clock was uncontroverted. The only testimony which would support finding No. 8 appeared in Mrs. Segerman’s pre-trial deposition, which was read at the trial: “Q You had recommended Bobby Glaser for psychological study? “A Yes. “Q And would you mind telling us why you made the recommendation ? ¹²⁰ “A Yes. I felt he is a young boy with a complex personality that needed help beyond my professional capacity. * * * “Q How would you describe Bobby Glaser as far as his over-all physical activities in class ? “A Physical activities in class ? “Q Yes.

Is he overly active, average, quiet, or how would you describe it ? “A He is a physically active boy. “Q Would you say very physically active as far as other boys in the class? “A He is an excellent athlete. I mark his report card accordingly. “Q Would you say that Bobby Glaser required more supervision than other students in your room ? * * * “A Yes, I would.” On cross examination, this was expanded: “Q Prior to January 10th of ’68, have you had more problems with Bobby Glaser than the average student in this particular class, than any of the other students in there ? “A May I say I had a fairly difficult class? There were many students that concerned me in the class. “Q Has Bobby Glaser ever disobeyed any of your instructions prior to that, that you gave him or the class, prior to January of 1968? * * * “A On occasion. * * * ¹²¹ “Q Did you in fact have disciplinary problems with him? “A Minor problems.” On further cross examination, Mrs. Segerman explained the affirmative answer which she had given on deposition to the question, “Would you say Bobby Glaser required more supervision than other students in your room?” by saying, “I think he needs academic supervision more than the average child. If he means my physical presence there more than the average child, I would say no.” The most significant item of all, however, is that the record shows that it was made clear on cross-examination that it was not until after the accident that Mrs. Segerman recommended that Bobby be psychologically evaluated.

It is for these reasons that we think that finding No. 8 was clearly erroneous. Findings Nos. 9 and 10 purport to resolve mixed questions of law and fact, combining facts which would properly be found by the trier of facts under appropriate instructions propounded by the court relating to negligence and proximate cause. “9. At the time of the occurrence she [Mrs. Segerman] knew, or should have known, that unless properly supervised a child in the group of thirty might injure himself or another because of the type of the calisthenics required by the record in the room that was overcrowded for such activity. “10. She left the room for four or five minutes while the children were doing calisthenics to the record and thereby negligently failed to supervise the children and that her negligence and failure to supervise the children was without any contributory negligence on the part of the infant plaintiff, was the proximate cause of the infant plaintiff’s injuries.” ¹²² It would appear that the court found that Mrs. Segerman was negligent in leaving the classroom and that her failure to supervise the exercises was the proximate cause of Mary’s injury.

For reasons which we shall develop, it is our view that Mrs. Segerman’s motion for a directed verdict should have been granted on the issue of proximate cause, which while ordinarily a question for the trier of facts, was here a question of law, because the facts were undisputed and admitted of but one inference. Sacks v. Pleasant, 253 Md. 40 , 251 A. 2d 858 (1969) ; Farley v. Yerman, 231 Md. 444 , 190 A. 2d 773 (1963) ; Jubb v. Ford, 221 Md. 507 , 157 A. 2d 422 (1960). In structuring her appeal, Mrs. Segerman poses six questions: 4 “1. Whether or not a teacher was negligent in leaving her class room for four or five minutes on school business. “2.

Whether the absence of the teacher from the class room was the proximate cause of the plaintiff’s injuries. “3. Whether or not a teacher is immune from suit while acting within the scope of her employment. “4. Whether or not the Court committed error in failing to grant the defendant’s motion for a directed verdict or directed finding at the close of the plaintiff’s case, and in failing to grant the defendant’s motion for a directed verdict and to make a finding in behalf of the defendant, at the close of all of the evidence. “5. Whether or not the Court committed error in granting the defendant Robert Glaser’s motion for a directed verdict or directed finding at the end of the plaintiff’s case. “6.

Whether or not the Court committed er ¹²³ ror in finding against the defendant in favor of the plaintiff.” As we see the case, the significant issues are those presented by the second and fourth questions, because we believe that Mrs. Segerman’s absence was not, as a matter of law, the proximate cause of Mary’s injury. Even if we assume for the purposes of this opinion that Mrs. Segerman was negligent in leaving the room, it cannot be said that her absence or failure to supervise caused the injury, because Mrs. Segerman’s presence could not have prevented it, and liability could be imposed only if the injury was reasonably foreseeable. “This is one of those events which could occur equally as well in the presence of the teacher as during her absence.” Ohman v. Board of Education, 300 N. Y. 306, 310 , 90 N.E.2d 474, 475 , aff’g 275 A. D. 840, 88 N.Y.S.2d 273 (1949). As a consequence, we need not reach the other questions raised by the appeal. In our view the proximate cause of Mary’s injury was an intervening and wholly unforeseen force —- the fact that Bobby Glaser left his assigned place and did not do his push-ups as he had been instructed to do them.

The subject of teacher liability has been dealt with in Annotation, 32 A.L.R.2d 1163 , 1181 (1953) and in at least three articles: Paul O. Proehl, Tort Liability of Teachers, 12 Vand. L.Rev. 723 (1959) ; Vernon X. Miller, Personal Injury Litigation in School Cases, 20 Law and Contemp. Probl. 60 (1955); and Reynolds C. Seitz, Legal Responsibility Under Tort Laiu of School Personnel and School Districts as Regards Negligent Conduct Toward Pupils, 15 Hastings L.J. 495 (1964). See also, 78 C.J.S., Schools and School Districts § 238 c (1952) at 1197.

Professor Proehl points out that the great majority of teacher negligence cases have arisen in jurisdictions where by statute, the plaintiff is given a direct right of action against the school governing unit 5 or alterna ¹²⁴ lively in jurisdictions where the teacher is saved harmless 6 and points up the distinction that while the teacher may stand in loco parentis as regards the enforcement of authority, a teacher does not stand in loco parentis with regard to negligent acts, for the teacher (unless immunity can be claimed) is liable for the negligent injury of a child, while a parent is not. 1 Harper and James, The Law of Torts § 3.20 (1956) at 291; see also, Gaincott v. Davis, 281 Mich. 515, 519 , 275 N. W. 229, 231 (1937). It is interesting to note that in the New York and California cases, attention is focused primarily on the school district, and in some of the cases, the allegedly negligent teacher may not even be joined as a defendant. On occasion, strict application of principles of negligence law may quite properly be tempered by the social desiderata which undoubtedly evoked the statutes. For example, “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” which appeared in a dissenting opinion in Ohman v. Board of Education, supra, 300 N.Y. 306, 311 , where recovery was denied because of lack of proximate cause, was cited with approval in Feuerstein v. Board of Education, 202 N.Y.S.2d 524 (Sup.

Ct. N.Y. 1960), aff’d 13 A.D.2d 503 , 214 N.Y.S.2d 654 (1961), where recovery was allowed in a case where a frail pupil suffered heart damage as a result of being assigned the job of carrying heavy boxes of school supplies and cited again in the