Rollins v. Concordia Parish School Bd.

465 So. 2d 213, 23 Educ. L. Rep. 1131
CourtLouisiana Court of Appeal
DecidedMarch 6, 1985
Docket84-96
StatusPublished
Cited by6 cases

This text of 465 So. 2d 213 (Rollins v. Concordia 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
Rollins v. Concordia Parish School Bd., 465 So. 2d 213, 23 Educ. L. Rep. 1131 (La. Ct. App. 1985).

Opinion

465 So.2d 213 (1985)

Eva Marie ROLLINS, Natural Tutrix for Lisa Marie ROLLINS, Plaintiff-Appellant,
v.
CONCORDIA PARISH SCHOOL BOARD, et al., Defendants-Appellees.

No. 84-96.

Court of Appeal of Louisiana, Third Circuit.

March 6, 1985.

*214 Jack F. Owens, Jr., Harrisonburg, for plaintiff-appellant.

Elmer G. Noah, II, Monroe, for defendants-appellees.

Before DOMENGEAUX, STOKER, DOUCET, KNOLL and KING, JJ.

KING, Judge.

This appeal involves the issue of whether or not the trial court properly awarded damages and medical expenses to plaintiff for the injuries sustained by her daughter, a fourth grade student, when she fell off a merry-go-round on the school ground during school hours.

The plaintiff, Eva Marie Rollins, brought this suit as the duly qualified natural tutrix of her nine-year-old daughter, Lisa Marie Rollins, (Lisa) seeking to recover damages and medical expenses as a result of the child falling off a merry-go-round on the school ground during a physical education class. Plaintiff named as defendants, Dr. Edgar L. Gibson, principal of Monterrey School, where the accident occurred, the Concordia Parish School Board, (School Board) and its insurer, Commercial Union Insurance Company. From an adverse judgment the defendants appeal. We affirm.

FACTS

On March 2, 1982, Lisa Rollins, a nine-year-old fourth grade student, was riding a merry-go-round on the school grounds, during school hours, with several other girls during a physical education class. The merry-go-round was a used piece of playground equipment that had been disassembled and moved from another school. When it was reassembled on the school ground it was placed lower to the ground *215 because of its intended use by small children. The class consisted of approximately 40 students. The girls in the class were playing on playground equipment and the boys in the class were playing basketball on a basketball court about fifteen feet away. Mrs. Linda Green, a substitute teacher, was supervising the class by walking back and forth between both groups when, at approximately 9:30 A.M., she observed that the merry-go-round was spinning too fast. The merry-go-round was propelled by the girls sitting on it and pushing it with their feet. Recognizing the danger, Mrs. Green told the girls, including Lisa, to slow down and get off. Just as she admonished Lisa and the other girls, she heard two boys begin arguing over a basketball and one of them yelled for Mrs. Green. Mrs. Green turned away from the merry-go-round and walked toward the boys leaving the girls still rapidly spinning on the merry-go-round. Mrs. Green walked about twenty feet when she heard one of the girls yell that Lisa was hurt, so she returned to help Lisa. When she reached Lisa she asked what happened and Lisa told her that she fell off the merry-go-round and hurt her leg. Mrs. Green carried Lisa to the principal's office, where Dr. Gibson, the school principal, took charge of the situation. He put ice on Lisa's leg and instructed the school nurse, Judy McClain, to examine the leg. Mrs. McClain observed a knot smaller than an egg on the leg which led her to believe that it might be broken and she recommended immobilizing the leg. Dr. Gibson took Lisa to the sick room and placed an inflatable splint on Lisa's leg to prevent its movement. School Board policy mandated that in the event of injury to a student that the principal make every effort to contact the child's parents or family physician. Dr. Gibson called Lisa's home and no one answered. Since Lisa did not remember where her parents were, Dr. Gibson sent for her older brother, Ray, who was in the seventh grade of the school. Ray informed Dr. Gibson that his parents were at a doctor's office in Alexandria but he was unable to remember the doctor's name. Dr. Gibson then called an aunt of Lisa's in Ferriday. Receiving no answer, Dr. Gibson called Lisa's grandmother in nearby Natchez, Mississippi at approximately 10:30 A.M. Lisa's grandmother agreed to get her husband from work and come to school to bring Lisa to the hospital. About one hour later, the grandparents arrived at the school to take Lisa to the hospital. Lisa was admitted to the hospital at 12:30 P.M. and was immediately examined and x-rayed. Dr. Steven McDonald, the treating physician, concluded that Lisa had fractured both her tibia and fibula in her left leg. Dr. McDonald was unable to immediately place Lisa's leg in a cast due to the fact that her leg had swollen. As a result, Lisa was forced to stay in the hospital for five days to allow the swelling to subside so that a "long leg" cast could be applied.

Plaintiff contends that the School Board was strictly liable as the custodian of a defective thing (the merry-go-round) and negligent for their failure to provide adequate supervision of the physical education class. Plaintiff further claimed that Lisa's injuries were aggravated by the lack of immediate medical attention. The trial court found the School Board was negligent in not properly supervising the playground activities, that Lisa's injury was aggravated by the lack of immediate medical attention, and that Lisa was guilty of contributory negligence. Applying comparative negligence, under the provisions of LSA-C.C. art. 2323, the trial court found Lisa to be fifty percent at fault and reduced the damage award for her injuries from $10,000.00 to $5,000.00.

Both parties have asserted numerous specifications of error which present the following issues:

(1) Was the trial court correct in holding the merry-go-round was defective, yet refusing to apply strict liability?
(2) Was the trial court correct in holding the defendants negligent;
(3) Was the trial court correct in reducing plaintiff's recovery by fifty percent due to contributory negligence?
*216 (4) Was the trial court correct in its finding that the minor child had suffered $10,000.00 in damages?
(5) Was the trial court correct in holding that the minor child's injuries were aggravated by a lack of immediate medical attention?
(6) Was the trial court correct in assessing the costs equally to both parties?

APPLICABILITY OF STRICT LIABILITY

Plaintiff argues that strict liability should be applied and that, under Loescher v. Parr, 324 So.2d 441 (La.1975), the School Board can only escape liability if it shows the accident was caused by victim fault, third party fault, or an irresistable force. Plaintiff further argues that contributory negligence is not the same as victim fault and, under the express language of LSA-C.C. art. 2323, comparative negligence can only be applied when contributory negligence is a defense. But see, Dorry v. Lafleur, 399 So.2d 559 (La.1981); Travelers Ins. Co. v. Exxon Pipeline Co., 449 So.2d 1074 (La.App. 1st Cir.1984), writ den., 452 So.2d 179 (La.1984); Deville v. Calcasieu Gravity, Etc., 422 So.2d 631 (La.App. 3rd Cir.1982) for discussion of contributory negligence as victim fault and a defense in a suit involving strict liability.

Under C.C. art. 2317, the custodian of a defective thing is strictly liable for injuries caused by the defect. Entrevia v. Hood, 427 So.2d 1146 (La.1983). A thing is defective only if it creates an unreasonable risk of harm. Entrevia v. Hood, supra. Thus, plaintiff has the burden of proving that the merry-go-round contained a defect that created an unreasonable risk of injury and that the defect caused the injury.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fergins Ex Rel. Fergins v. Caddo Parish
736 So. 2d 943 (Louisiana Court of Appeal, 1999)
Aucoin v. State Through Dept. of Transp. and Dev.
712 So. 2d 62 (Supreme Court of Louisiana, 1998)
Glankler v. Rapides Parish School Bd.
610 So. 2d 1020 (Louisiana Court of Appeal, 1992)
Brooks v. Orleans Parish School Bd.
560 So. 2d 633 (Louisiana Court of Appeal, 1990)
Bivalacqua v. Aube
493 So. 2d 209 (Louisiana Court of Appeal, 1986)
Drueding v. St. Paul Fire & Marine Ins. Co.
482 So. 2d 83 (Louisiana Court of Appeal, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
465 So. 2d 213, 23 Educ. L. Rep. 1131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rollins-v-concordia-parish-school-bd-lactapp-1985.