Nicolosi v. Livingston Parish School Bd.

441 So. 2d 1261, 15 Educ. L. Rep. 425, 1983 La. App. LEXIS 9655
CourtLouisiana Court of Appeal
DecidedNovember 22, 1983
Docket83 CA 0200
StatusPublished
Cited by12 cases

This text of 441 So. 2d 1261 (Nicolosi v. Livingston Parish School Bd.) 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
Nicolosi v. Livingston Parish School Bd., 441 So. 2d 1261, 15 Educ. L. Rep. 425, 1983 La. App. LEXIS 9655 (La. Ct. App. 1983).

Opinion

441 So.2d 1261 (1983)

Joe John NICOLOSI
v.
LIVINGSTON PARISH SCHOOL BOARD.

No. 83 CA 0200.

Court of Appeal of Louisiana, First Circuit.

November 22, 1983.

*1262 Ernest G. Drake, Jr., Ponchatoula, for plaintiff.

J. Donald Cascio, Denham Springs, for defendant.

Donald Phelps, Baton Rouge, for Ronald J. Gill.

Byard Edwards, Jr., Ponchatoula, for third party defendant.

Before SHORTESS, LANIER and CRAIN, JJ.

LANIER, Judge.

This is a suit for damages in tort against a school board and an elementary school principal arising from an incident in which a student fell and was injured on school premises. The trial judge ruled that the school board and the school principal were not negligent and dismissed the petition. This devolutive appeal followed.

FACTS

In May of 1978, the Livingston Parish School Board operated the Albany Elementary School in the Albany community of Livingston Parish. Ronald J. Gill was the principal of this school, and Patricia Nicolosi *1263 and Lottie E. Howell were both students at the school.

Prior to the morning recess (10:00 A.M.-10:10 A.M.) on May 19, 1978, Lottie Howell sent a note to Patricia Nicolosi challenging her to a fight. At first, Nicolosi declined but after being called "chicken" agreed. It was further agreed by Nicolosi and Howell that the fight would take place during recess at the rear of the bandroom on the school grounds, an area designated as "off-limits" to students, to avoid detection. During the course of the fight, Nicolosi fell and was injured. What caused Nicolosi to fall was disputed at the trial.

After Nicolosi fell, she was picked up by Janice Cowart, one of the teachers on recess duty, and taken to the principal's office. Nicolosi was interviewed concerning the incident by the principal. Nicolosi's family was notified of the incident and her sister picked her up from school and took her to their grandmother's house. Nicolosi's mother then took her to the Lallie Kemp Charity Hospital where X-rays were taken and it was determined that she had broken her right hip. Nicolosi was then transferred to the New Orleans Charity Hospital where she was placed in traction. On May 24, 1978, surgery was performed and three Knowles pins were inserted to transfix the fracture. After surgery, Nicolosi was put in a body cast for six weeks. Once the body cast was removed, she was sent to physical therapy to relearn how to walk.

The fracture to the hip has now resulted in vascula necrosis (death of the bone). Nicolosi's right leg is approximately one inch shorter than the left and this causes her to limp. The range of motion in the right leg is limited. Nicolosi cannot engage in activities which she previously enjoyed and experiences considerable pain on occasion.

FACTUAL FINDINGS OF TRIAL COURT

The appellants contend that the trial court was clearly wrong in reaching the factual findings that the pipes, logs and other hazardous objects located back of the bandroom were not in the place where Patricia Nicolosi fell, in not finding that Nicolosi tripped on a pipe embedded in the ground and fell on a railroad tie, in finding that all students of the school had been warned against going in the "off-limits" area located behind the bandroom and in not finding that the defendants were legally at fault and responsible for Patricia Nicolosi's injuries. (Specifications of Error 1, 2, 3, 4 and 11).

Patricia Nicolosi testified that another student, Lottie E. Howell, sent her a note asking her to fight. At first, Nicolosi declined to do so but after being called "chicken" she agreed to the fight. She admitted that the students went behind the bandroom to fight so no one would see them. After the fight commenced, Lottie Howell began winning and Patricia tried to run away from her. In her get-away attempt, Patricia tripped on a pipe and fell on a log injuring her hip. A teacher, Janice Cowart, arrived shortly after Patricia fell and carried her to the principal's office. Nicolosi testified that she knew that the school had rules prohibiting fighting and throwing things other than balls. She also knew that she must go to school on time and must go back to class when the recess bell rang. Nicolosi testified that she was never told not to go back of the bandroom.

Lisa Albin was a student who witnessed the fight and generally corroborated Nicolosi's testimony. Albin testified that after the fight commenced Nicolosi turned to go away and tripped and fell. Albin did not know specifically what Nicolosi tripped on but did observe bricks, pipes and old logs in the area.

Lottie E. Howell testified that she and Patricia Nicolosi commenced fighting close to the rear of the bandroom to avoid detection. Howell testified that after the fight commenced Nicolosi fell. Thereafter, Howell fell on top of Nicolosi, and Nicolosi complained of her hip hurting. Howell denied knowing that students were not to be in the area back of the bandroom.

Dawnice L. King, a student who witnessed the fight, testified that Nicolosi pushed Howell and Howell fell to the ground. Howell got back up and then both *1264 students fell to the ground and rolled around. Howell and Nicolosi got up, Nicolosi tried to flip Howell over but did not quite make it, and Howell fell on top of Nicolosi on the ground. King testified that she had previously tripped on a pipe back of the bandroom but that she did not see anything on the ground where Nicolosi fell. Janice Cowart arrived at the scene within thirty to forty seconds after Nicolosi fell to the ground. King did not have the impression that Nicolosi was trying to run from the fight. King was aware that the area behind the bandroom was "off-limits" to students. She testified that the students went behind the bandroom so they would not get caught.

Janice Cowart, a teacher at Albany Elementary School, had recess duty on the day that Nicolosi was injured. She observed the girls "squared off" and saw each deliver blows or swinging. She immediately proceeded to the area to intervene. When she arrived, Nicolosi was on the ground. Nicolosi said she was sorry that the fight occurred and she did not want anyone to get into trouble. Cowart did not observe Nicolosi running away from Howell and did not observe a log, pipe or brick in the area where the incident occurred. Nicolosi did not tell Cowart that she was running from Howell or that she tripped on a pipe. Cowart carried Nicolosi to the principal's office. Cowart admitted there were no physical barriers or signs warning children of the "off-limits" areas but testified that children were instructed during homeroom about this restricted area.

Genie Quave Douglas was the other teacher on recess duty at the time of the incident. She testified that she observed Howell and Nicolosi close to the back wall of the bandroom. She proceeded to the scene of the incident but arrived after Janice Cowart. She looked around the area to see if anything had been dropped and observed that the ground was clear.

Ronald Johnny Gill testified that he was the principal of Albany Elementary School on the day of the incident. Nicolosi had been a student at the school for almost two full school years at that time. Gill testified that grades 4 to 6 went to recess in the same area, that from 100 to 175 children were at recess in the area and that the area was supervised by two duty teachers. Gill questioned Nicolosi about the incident and she said that she tripped and fell during a fight with Howell. Nicolosi did not say that she tripped on a pipe or that she was attempting to run away from Howell.

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Bluebook (online)
441 So. 2d 1261, 15 Educ. L. Rep. 425, 1983 La. App. LEXIS 9655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicolosi-v-livingston-parish-school-bd-lactapp-1983.