Partin v. Vernon Parish School Bd.

343 So. 2d 417, 1977 La. App. LEXIS 5185
CourtLouisiana Court of Appeal
DecidedMarch 4, 1977
Docket5803
StatusPublished
Cited by21 cases

This text of 343 So. 2d 417 (Partin v. Vernon 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
Partin v. Vernon Parish School Bd., 343 So. 2d 417, 1977 La. App. LEXIS 5185 (La. Ct. App. 1977).

Opinion

343 So.2d 417 (1977)

Mrs. Eva S. PARTIN, Plaintiff-Appellant,
v.
VERNON PARISH SCHOOL BOARD et al., Defendants-Appellees.

No. 5803.

Court of Appeal of Louisiana, Third Circuit.

March 4, 1977.

*418 Pharis & Pharis by James A. Pharis, Jr., Alexandria, for plaintiff-appellant-appellee.

Gist, Methvin & Trimble, H. B. Gist, Jr., Alexandria, for third party defendants-appellees-appellants.

Bolen, Halcomb, Bolton & Erwin by Frank R. Bolton, Jr., Alexandria, Tillman & *419 Mitchell by F. Clay Tillman, Leesville, for defendants-appellees.

Before WATSON, GUIDRY and FORET, JJ.

GUIDRY, Judge.

This is a personal injury action instituted by plaintiff wherein she seeks to recover, on her own behalf and on behalf of her minor son, Paul Corcoran Wagner II, hereafter referred to as Paul, damages sustained when Paul allegedly fell on the playground at Simpson Public School in Simpson, Louisiana. Suit was initially brought against the Vernon Parish School Board, however, by supplemental petition plaintiff also joined two teachers, Mrs. Betty J. Gordy and Miss Diana D. Hillman; the latter's insurer, Horace Mann Insurance Company; and, Royal Globe Insurance Company, insurer of the school board. The school board and its insurer filed a third party demand seeking indemnity over against Gordy, Hillman and the latter's insurer. Miss Diana Hillman and her insurer likewise filed a third party demand seeking indemnity and/or contribution from the school board and its insurer. Thereafter the defendants, Gordy and Hillman filed exceptions of no cause and no right of action to the demands of plaintiff and third party plaintiffs which exceptions were referred to the merits.

The matter was tried and pursuant to written reasons assigned plaintiff's demands were rejected and accordingly her suit and all third party demands were ordered dismissed with prejudice. Plaintiff appealed. Third party plaintiffs appealed solely to preserve their rights under their respective third party demands in the event the trial court judgment is reversed.

Plaintiff contends that Paul sustained a transverse laceration in the head and body region of the pancreas when he either fell upon, was pushed on or tried balancing on a small tree stump located on the playground at the Simpson Public School. Plaintiff contends that the two teachers were guilty of actionable negligence because they failed in their duty to properly supervise the children and that the school board is liable under the doctrine of respondeat superior. Plaintiff additionally contends that the school board is guilty of independent negligence for having allowed a dangerous condition, i.e., a pine tree stump, to exist on the school playground.

The facts leading up to and surrounding the alleged accident are not in dispute except in two particulars, i.e., how Paul's body came into contact with the tree stump and whether the stump was relatively square and rounded on top or whether it was jagged and knife-like.

The accident happened at about 11:30 a. m. on the morning of September 9, 1974. The previous day, which was a Sunday, Simpson was hit by the fringe winds of a hurricane as a result of which a small dead pine tree located on the very edge of the school playground fell. The tree was described by all witnesses as being about six to ten inches in diameter. Mr. Willard Martin, the school janitor, arrived at the school on the day of the accident at about 7:00 a.m. Upon his arrival be noticed the fallen tree, which was lying partially in the road. He immediately removed the tree and large branches and generally cleaned up the area except for small branches, pine cones, etc. He did not remove the stump which was described by him as about twenty to twenty-four inches in height and almost square and rounded on top. Mr. Martin testified that he did not consider the stump as hazardous and did not report its presence to anyone.

According to the school schedule the first, second and third graders were allowed a noon recess which began about 11:20 a.m. The children, about ninety in number, were taken to the playground under the supervision of Mrs. Gordy, who was the teacher on duty. The playground was described by all witnesses as being about the size of a football field. Upon arrival at the playground Mrs. Gordy immediately saw the stump and the scattered debris, i.e., small branches, twigs, and pine cones, around it and cautioned the children as a group that they should not play there. Mrs. Gordy testified *420 that she was not concerned about the stump, her description thereof being generally in agreement with that of Mr. Martin, however, she was concerned that the children might injure one another if they undertook to throw small twigs, pine cones, etc. Mrs. Gordy stationed herself about 30 or 40 feet away from the stump in the area of the see-saws and remained there during the entire recess. Following Mrs. Gordy's general warning to the group as a whole, she noticed Paul, who was then 7 years old, in the vicinity of the stump and she again warned him that he should play elsewhere. Following this second warning Paul returned to the area and either fell on, was pushed, on, or layed his body over the stump. Mrs. Gordy was sitting near the see-saws, and while taking a rock out of her shoe, looked up and saw Paul on the stump with his hands and feet in the air. Mrs. Gordy assumed that Paul was trying to balance his body on the stump. Upon seeing this Mrs. Gordy immediately went to Paul and again scolded him for disobeying her. At this point we note that only Mrs. Gordy saw Paul on the stump, however, she did not see whether he fell on, was pushed on, or simply laid his body over the stump. The history given to Dr. Edgerton, Paul's treating physician, was to the effect that a little boy pushed Paul and he fell across the stump. Paul testified that he was attempting to climb up on the stump when his foot slipped and he fell. The trial judge did not resolve this controversial fact concluding that regardless of the manner in which Paul's body came into contact with the stump the defendants were not negligent.

Apparently, shortly after the last described incident, Miss Diana Hillman, who was a friend of Mrs. Gordy, went to the playground either to deliver a message or to simply visit with Mrs. Gordy. When she arrived Mrs. Gordy was standing by the see-saws. Miss Hillman testified that upon her arrival on the scene she noticed the stump and the debris surrounding it. Miss Hillman's description of the stump coincided with that of Mr. Martin and Mrs. Gordy. She stated that Mrs. Gordy told her of her warning to the children and to Paul in particular that they should not play in the area of the stump. Both Miss Hillman and Mrs. Gordy testified that after the former had been there for about two or three minutes Paul approached them, in no particular distress, to show them his stomach which was slightly bruised and scratched. Neither considered the injury displayed to them to be serious or to require any attention. At this point we digress to note that the record clearly establishes that Miss Hillman was not on duty during this particular recess and was under no obligation to supervise or help supervise the children on the playground. She testified, without contradiction, that she did not see Paul or any of the other children around the stump. The only time she actually saw Paul was when he came to the see-saws to show her his stomach.

During the afternoon Paul became sick, however, Miss Hillman concluded that he had a virus which was then going around.

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343 So. 2d 417, 1977 La. App. LEXIS 5185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/partin-v-vernon-parish-school-bd-lactapp-1977.