Foster v. Houston General Ins. Co.

407 So. 2d 759, 1 Educ. L. Rep. 1402
CourtLouisiana Court of Appeal
DecidedNovember 2, 1981
Docket14664
StatusPublished
Cited by10 cases

This text of 407 So. 2d 759 (Foster v. Houston General Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. Houston General Ins. Co., 407 So. 2d 759, 1 Educ. L. Rep. 1402 (La. Ct. App. 1981).

Opinion

407 So.2d 759 (1981)

Helen Ann FOSTER, Plaintiff-Appellant-Appellee,
v.
HOUSTON GENERAL INSURANCE COMPANY; Inez Grant; Morehouse Parish School Board; Horace Mann Insurance Company and Lloyd Gray, Defendants-Appellants-Appellees.

No. 14664.

Court of Appeal of Louisiana, Second Circuit.

November 2, 1981.
Writ Denied January 18, 1982.

*761 McLeod, Verlander & Dollar by David E. Verlander, III, and Robert P. McLeod, Monroe, for plaintiff-appellant-appellee, Helen Ann Foster.

Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for defendants-appellants-appellees, Houston General Ins. Co. and Morehouse Parish School Bd.

Snellings, Breard, Sartor, Inabnett & Trascher by Kent Breard, Monroe, for defendants-appellants-appellees, Horace Mann Ins. Co., Inez Grant and Lloyd Gray.

Before HALL, JASPER E. JONES and FRED W. JONES, JJ.

FRED W. JONES, Judge.

The mother of a mentally retarded youngster sued two school teachers and their insurer, the employer-school board and its insurer, and an automobile driver for the wrongful death of her son. Judgment was rendered in favor of plaintiff against all defendants except the car operator. The parties cast in judgment appealed, contending that the trial judge erred in (1) finding the school teachers were guilty of negligence which resulted in the student's accident and death and (2) concluding the deceased student was not contributorily negligent and/or did not assume the risk.

Plaintiff also appealed, asserting that the trial judge should have found the school board independently negligent rather than simply liable as the employer of the negligent teachers, and further asked for an increase in the damage award.

We affirm.

On December 2, 1977 Robert Foster, age 17, was a student at the Morehouse Educational Development Center ("MEDC") in Bastrop, a school for the mentally retarded operated by the Morehouse Parish School Board. Foster had been admitted to MEDC in 1968 upon the basis of tests which indicated he was an educable mentally retarded youngster. He was again tested in 1975, when he was 15, and found to have an IQ of 52 and a mental age of seven years four months. This result placed him in the bottom range of the educable mentally retarded.

In 1977 Foster was chosen a member of MEDC's Special Olympics[1] basketball team. This was a school sanctioned activity, with practice sessions held during the regular physical education class period. Mrs. Inez Grant, the only physical education teacher at MEDC, was in charge of and responsible for the training of the team in its preparation for regional competition. She had been employed by the Morehouse Parish School Board for some 26 years and was in her second year at MEDC. Mrs. Grant was assisted by Lloyd Gray, a mathematics teacher, also in his second year at MEDC.

MEDC did not have a gymnasium. Although the junior high school with which it shared a campus did have such a facility, it was in constant use during regular school hours and was not available to the MEDC physical education classes. Consequently, Foster's basketball team usually practiced outdoors on MEDC's dirt court. However, because she felt it was desirable for the team to have experience playing indoors on a wood floor, Mrs. Grant arranged for the boys to practice on December 2, 1977 in a gymnasium located in Dotson Park, a municipal facility located about three blocks from the MEDC campus.

As shown on the appended sketch, the MEDC campus was bounded on the north by West Madison Street (U.S. Highway 165) and on the west by South Haggerty Street. A chain link fence encircled the campus, *762 with a gate on the west side for ingress and egress. The juncture of South Haggerty Street and West Madison Street formed a T-intersection which was controlled by a traffic semaphore signal. About half a block to the west of that intersection Parker Drive joined West Madison Street from the north, forming another T-intersection, which was controlled only by a stop sign on Parker Drive. Parker Drive extended north into Dotson Park.

There were no paved sidewalks along the streets in that area. At the time West Madison Street was a two lane blacktop street. It was one of Bastrop's principal thoroughfares, with a traffic count on the portion inside the city limits during one 24 hour period of 14,050 vehicles.

Mrs. Grant and Gray planned to take the basketball team from MEDC to Dotson Park sometime during the lunch hour. Because of the relatively short distance they decided to walk rather than seek bus transportation from the school board.[2] The route selected for the three-block walk exited the MEDC campus at the gate next to South Haggerty Street, crossed that street in the middle of the block, angled across an adjoining churchyard to a point on West Madison Street opposite Parker Street, crossed West Madison Street in the middle of that block (some 150 feet west of the traffic signal) and ran up the side of Parker Street to the park facility. Neither Mrs. Grant nor Gray had ever taken the basketball team to Dotson Park along this route. In fact, it was established that the MEDC teachers and students had only used the Dotson Park facilities once before, and that was for a picnic the year prior to the date in question.

Between 12:30 and 12:45 P. M., Gray gathered the team of 10 or 11 boys in a back building at MEDC and sent word to Mrs. Grant, who was teaching a class in the front building, that they were ready to go to Dotson Park. Mrs. Grant instructed them to wait for her to finish the class in progress. During this time Gray discussed with the youngsters safety precautions, particularly directed at street crossing. Since Mrs. Grant still had not joined them, Gray moved the group to the vicinity of her classroom. He said that the students were becoming increasingly "fidgety". Therefore, Mrs. Grant was advised that Gray would take the team to Dotson Park alone. Mrs. Grant assented and stated that she would follow in her automobile.

Gray departed with the team along the planned route. After they crossed South Haggerty Street and were traversing the churchyard, five or six of the boys broke away from the group and started running ahead, paid no heed to admonitions from Gray, and crossed West Madison Street on their way to the park. Gray then rejoined the remaining group of five students which included Foster, led them up to West Madison Street, and lined up the youngsters parallel to the street to wait for an opportune moment to cross.

At that time traffic in the eastbound lane faced a red light at the West Madison Street-Haggerty Street intersection and was backed up past the place where Gray and his contingent were standing. Confronted with this situation, Foster suddenly dashed out into the street, ran between two stationary vehicles in the eastbound lane, got into the westbound lane and looked to his right, saw a car coming in that lane and stopped suddenly, at which time his feet slid out from under him. The youngster was run over by the oncoming automobile, suffering the serious injuries from which he died three days later.

In his written opinion the trial judge absolved the defendant driver of the car which ran over Foster of liability, concluding that the accident was unavoidable as far as the vehicle operator was concerned. However, he found that Mrs. Grant was negligent because of "her failure to provide other transportation, her failure to supervise, her negligent choice of a route to the *763

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Cite This Page — Counsel Stack

Bluebook (online)
407 So. 2d 759, 1 Educ. L. Rep. 1402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-houston-general-ins-co-lactapp-1981.