Provinsal v. Sperry Independent School District No. 8 of Tulsa County

2012 OK CIV APP 3, 269 P.3d 51, 2011 Okla. Civ. App. LEXIS 117, 2011 WL 7068909
CourtCourt of Civil Appeals of Oklahoma
DecidedDecember 1, 2011
DocketNo. 109,284
StatusPublished
Cited by8 cases

This text of 2012 OK CIV APP 3 (Provinsal v. Sperry Independent School District No. 8 of Tulsa County) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Provinsal v. Sperry Independent School District No. 8 of Tulsa County, 2012 OK CIV APP 3, 269 P.3d 51, 2011 Okla. Civ. App. LEXIS 117, 2011 WL 7068909 (Okla. Ct. App. 2011).

Opinion

KENNETH L. BUETTNER, Judge.

{1 Plaintiff/Appellant Tammie Provinsal, individually and as parent and natural guardian of Douglas Provinsal, appeals from summary judgment granted in favor of Defendant/Appeliee Sperry Independent School District No. 8 of Tulsa County (School) in Provinsal's suit for damages under the Government Tort Claims Act (GTCA). The undisputed material facts show School's actions were not the proximate cause of the harm and School could not be liable for negligence as a matter of law. We affirm.

T2 In her February 1, 2010 Petition, Pro-vinsal alleged her son Douglas suffered a broken shoulder when he was pushed to the ground by another student while on the playground at Sperry Middle School. She claimed School was negligent in failing to provide adult supervision of the students at the time of the injury. Provinsal made claims for pain and suffering on behalf of her child and for economic losses on behalf of herself. Provinsal lastly alleged she timely filed her GTCA claim with School and then filed her Petition within 180 days of School's denial of the claim.

T3 School filed its Motion for Summary Judgment October 28, 2010. School contended that it was immune from liability under the GTCA, but alternatively, even if it was not immune, Provinsal had failed to prove School breached its duty of care or proximately caused the injury alleged. School asserted 17 undisputed facts that required judgment in its favor: 1) Douglas was a student at School; 2) School is a political subdivision of the State and is subject to the GTCA; 3) Douglas was in the seventh grade when he was injured on School's grounds April 24, 2009; 4) on that day, a substitute teacher in charge of Douglas's class allowed some of the students to go outside during the last period, as long as they were in sight of the classroom; Douglas, three other boys, and a girl went outside then; 5) Douglas and the four others played basketball; 6) the ball bounced away from the court and Douglas and the girl ran after it, shoulder to shoulder, and both fell to the ground; 7) the substitute teacher watched the children playing basketball from the classroom window; she turned to check on the class, and when she turned back to the window she saw Douglas falling; 8) Douglas saw the substitute teacher watching him through the window; 9) prior to the fall, the students' play did not appear malicious or out of control, and their play was not so rough as to cause the teacher's aide, who was also watching, to intervene; 10) before Douglas and the girl fell, the aide saw no altercation or unusual behavior between them; 11) Douglas contends the girl purposely grabbed him around the neck and when he broke free, she pushed him to the ground, causing his injury; 12) during the game, the girl had not spoken to Douglas or the other boys and none of them had spoken to her; 13) prior to the accident, Douglas had never had a disagreement with the girl; 14) prior to the date of the accident, the girl had never done anything around Douglas or in front of him that he found to be threatening to his safety; 15) Provinsal cannot identify any evidence which would have put School on notice that the girl was going to harm or injure Douglas; 16) Provinsal had never complained to School about the girl before the accident; and 17) Provinsal contended that Douglas's injuries would not have occurred had School followed its own procedures to supervise students.

4 Provinsal disputed facts 5, 6, 9, 10, and 15. As to fact 5, Provinsal cited Douglas's testimony that the girl was not playing basketball but was sitting on the sidewalk nearby, and she contended that a supervising teacher would have seen the girl chasing the ball as interfering with the boys' established game. As to fact 6, Provinsal asserted that while a teacher's aide testified the girl and Douglas were running "shoulder to shoulder" after the ball, Douglas testified he did not [53]*53see the girl running for the ball until he heard her say "move, Doug." Provinsal questioned the aide's credibility. As to fact 9, Provinsal asserted the aide testified the students were engaged in horseplay and she did not tell them to stop. Citing a dictionary definition of "horseplay" as "rough, boisterous fun," Provinsal contended the aide's testimony amounted to testimony that she observed rough play and chose to do nothing about it. As to fact 10, Provinsal cited her response to fact 9 as her statement of dispute.

15 Finally, Provinsal contended fact 15 may have been true at the time Provinsal gave her deposition testimony, but she contended that did not prove School was not on notice the girl had exhibited aggressive and inappropriate behavior in the past. Provin-sal asserted that School's principal was not allowed to answer a question on that issue at deposition and that Provinsal was therefore entitled to an inference in her favor. Provin-sal also claimed that if an adult had been watching the students, the adult would have been on notice that the girl "broke from the sidelines of an ongoing game, to involve herself in a game she wasn't participating in, and was acting aggressively and inappropriately when she jumped on Douglas Provinsal and wrapped her arm around his neck before he broke free."

11 6 Provinsal asserted that four other facts precluded summary judgment: 1) in interrogatories, School denied having written materials stating guidelines for adult supervision of students on the playground;1 2) the substitute teacher testified she did not know School's policies on supervising children or on student safety on the date of the accident and she did not undergo any training or instruction to become a substitute teacher at School; 3) School's current principal and the principal at the time of the accident both confirmed under oath that School's policy regarding supervision of children on the playground is one of common sense and is universal among schools; and 4) both the substitute teacher and another teacher who was leading her class outside at the time of the fall testified that School's policy for student safety was breached April 24, 2009. As support for this fourth fact, Provinsal attached deposition testimony of Danna Smart, the teacher who, with her aide, was taking her class outside at the time of the accident and saw the girl and Douglas fall. Smart identified a written policy stating "(the safety of every boy and girl is to be a matter of serious concern at all times ... children will never be left unsupervised whether in class, on the playground or on a school activity." Smart agreed the policy was that "you don't leave students unattended" and that it was breached as to Douglas Provinsal on the day of the accident. The substitute teacher testified that if that was the policy, then she unknowingly violated it that day.

T7 The trial court granted summary judgment in favor of School in a Journal Entry of Judgment filed February 28, 2011. Provin-sal appeals. Summary judgment proceedings are governed by Rule 13, Rules for District Courts, 12 0.8.2001, Ch. 2, App. 1. Summary judgment is appropriate where the record establishes no substantial controversy of material fact and the prevailing party is entitled to judgment as a matter of law. Brown v. Alliance Real Estate Group, 1999 OK 7, 976 P.2d 1043, 1045. Summary judgment is not proper where reasonable minds could draw different inferences or conclusions from the undisputed facts. Id. Further, we must review the evidence in the light most favorable to the party opposing summary judgment. Vance v. Fed. Natl. Mortg. Assn., 1999 OK 73, 988 P.2d 1275.

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2012 OK CIV APP 3, 269 P.3d 51, 2011 Okla. Civ. App. LEXIS 117, 2011 WL 7068909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/provinsal-v-sperry-independent-school-district-no-8-of-tulsa-county-oklacivapp-2011.