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District Court of Appeal, First District, Division 1, California.


Civ. 10277.

Decided: February 15, 1937

John J. O'Toole, City Atty., and Walter A. Dold, Chief Deputy City Atty., both of San Francisco (Irving G. Breyer, of San Francisco, of counsel), for appellant. Everett W. Mattoon, Co. Counsel, and J. F. Moroney, Deputy Co. Counsel, both of Los Angeles, amici curiæ, in support of appellant. James F. Brennan and Walter McGovern, both of San Francisco, for respondent.

Plaintiff, through her guardian ad litem, brought this action to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant. During the progress of the trial appellant moved for a nonsuit and a directed verdict, both of which motions were denied. After judgment appellant moved for judgment notwithstanding the verdict, and for a new trial, both of which motions were likewise denied.

The first and most important ground of appeal is that there is no evidence at all showing that appellant or its officers or employees were guilty of any negligent acts or omissions which proximately caused respondent's injuries. In view of the rule that the refusal to grant a new trial is largely in the discretion of the trial court, and its action will not be set aside by the appellate court where there appears to be a reasonable or even a fairly debatable justification therefor (20 Cal.Jur. p. 30), the question then is as to whether there is sufficient legal support in the evidence for the judgment in this case. 20 Cal.Jur. p. 31. In determining this question all legal intendments are in favor of the judgment and all conflicts in the evidence must be resolved in favor of the respondent. Under this rule, the facts are as follows: The respondent at the time of the accident was 17 years old, 5 feet 3 inches in height, weighed between 117 and 120 pounds, rather frail, and was a student at the Polytechnic High School in San Francisco. In January, 1934, she applied for admission to the gymnasium class, but was instructed by the teachers in charge that the gymnasium classes were full and that she would have to join the “tumbling” class in order to get her credits. She enrolled in “the Beginners' Tumbling Class,” remaining there from then until the time of the accident, to wit, May 3, 1934. This class was under the direction of the physical education department and taught by a regularly accredited teacher. The San Francisco board of education prescribed a course of physical education for senior high school girls, but the particular stunt or exercise in doing which respondent was injured was not directly prescribed. During the approximately four months of her membership in this course, respondent learned the various stunts required by the teacher, such as head stand, forward roll, backward roll, cartwheel, etc., and had practiced the “roll over two” about 40 times. “The roll over two” consisted of diving over two students side by side upon their hands and knees on the floor, the performer lighting on her extended arms, and with the head curled under, completing a forward roll, and thence coming up to a standing position. On this occasion respondent, instead of lighting on her arms, lit on her head, sustaining injury thereto. Respondent at the time of registering in the course informed the teacher that she did not want to take “tumbling.” At the time of the accident respondent had what she called a “bad knee,” caused by a fall about two weeks before, and which knee the teacher had dressed at the time of the fall. Apparently this knee was weak and occasionally failed to sustain respondent's weight. However, there is no evidence that the condition of this knee contributed to respondent's failure to perform “roll over two” at the time of the accident. There were eighteen stunts in all, taught in the “tumbling class” of which “roll over two” was the culmination. It was necessary to pass ten out of the eighteen stunts to get a passing grade and to pass all to get a perfect grade. Respondent had practiced “roll over two” about twice a day and had finally mastered it and went to the teacher and asked her to watch her do it so that she could get the necessary grading.

Of course, unless the teaching of this gymnastic exercise were negligent, or it was negligently taught, the school district would not be liable for injuries received in such exercise. At common law school districts were not liable for injuries sustained by pupils while engaged in school activities even though such injuries were caused by the negligence of officers, agents or employees of the school district. School districts, like other political subdivisions of the state, may be sued only with the permission of the state and are liable for the acts of their agents only when expressly made so by statute. Skelly v. School District, 103 Cal. 652, 37 P. 643.

The rule of common law is now modified by section 2.801 of the School Code (Stats.1931, p. 2487), which reads as follows: “Boards of school trustees, high school boards, junior college boards and boards of education are liable as such in the name of the district for any judgment against the district on account of injury to person or property arising because of the negligence of the district, or its officers or employees.” (Italics ours.)

With the exception of Act 5619 of Deering's General Laws 1931, imposing a liability for injuries resulting from the failure to remedy a dangerous and defective condition of property after notice (which has no application here), section 2.801 of the School Code is the only statute making a school district liable for injuries sustained by a pupil while engaged in school activities. This section of the School Code definitely limits such liability to cases arising out of negligence on the part of the district, its agents or employees.

The strict construction which the courts have placed upon statutes imposing liability on school districts for negligence is illustrated by the case of Whiteford v. Yuba City Union High School District, 117 Cal.App. 462, 4 P. (2d) 266, 267, a case involving the liability of a school district under Statutes of 1923, page 675. In pointing out that the statute was one imposing liability for negligence, the court said: “We think the judgment of dismissal must be affirmed for another reason. The act of 1923 (page 675), as its title shows, creates a liability for negligence only. This act does not purport in its title or in its body to create any liability on the part of the school district for the unlawful or wilful misconduct of its students, officers, or agents,” etc.

“‘The law does not make school districts insurers of the safety of the pupils at play or elsewhere, and no liability is imposed upon a district under the above–mentioned section, in the absence of negligence on the part of the district, its officers or employees.”’ Goodman v. Pasadena City High School District, 4 Cal.App.(2d) 65, 68, 40 P.(2d) 854, 855.

The main question really resolves itself into this: Is the gymnastic stunt known as “roll over two” of such a character that teaching it to a high school girl of the age of 17, frail, and weighing approximately 117–120 pounds, 5 feet, 3 inches in height, having a bad knee negligence per se? Respondent contends that it is, claiming that the stunt was so dangerous and hazardous as to constitute it negligence to teach, order, and direct respondent to perform the same, or that it is of such a character that it is for the jury to determine whether or not it constitutes negligence. While it is for the jury to resolve any conflict in the evidence, still if, taking the evidence in its strongest aspect in favor of the respondent, there is only one reasonable inference that can be deduced therefrom, it becomes a question of law for the court as to whether that evidence constitutes negligence in law.

Section 3.731 of the School Code of the state of California provides: “The high school board of each high school district shall prescribe suitable courses of physical education in accordance with the provisions of this Article for all pupils enrolled in the day high schools of such district, except pupils regularly enrolled in high school cadet companies and pupils who may be excused from such courses on account of physical disability.” (Italics ours.)

Section 3.732 provides:

“The aims and purposes of the courses of physical education established under the provisions of this Article shall be as follows:

“(1) To develop organic vigor;

“(2) To provide neuro–muscular training;

“(3) To promote bodily and mental poise;

“(4) To correct postural defects;

“(5) To secure the more advanced forms of coordination, strength, and endurance;

“(6) To promote such desirable moral and social qualities as appreciation of the value of cooperation, self–subordination, and obedience to authority, and higher ideals, courage, and wholesome interest in truly recreational activities;

“(7) To promote a hygienic school and home life;

“(8) To secure scientific supervision of the sanitation of school buildings, playgrounds, and athletic fields and the equipment thereof.” (Italics ours.)

The old idea of physical education in schools was to give the student perfunctory setting up exercises, or motions which did not even cause the participant to work up a perspiration. The modern idea, which came in at the same time as the change from the horse and buggy to the automobile, and the change which permitted girls who theretofore were only permitted to participate in sports as onlookers to become active participants themselves, is that the student in physical education classes should actively engage in exercises that cause real co–ordination of mind and muscle, that develop muscular vigor, and which in the viewpoint of the oldtimer would have been classified as somewhat strenuous. Such games now played by girls, as baseball, basketball, volleyball, handball, and the like––such activities as track events, running, jumping, and vaulting, which are all in the modern trend––would have been frowned upon in other days as unladylike and hoydenish. In all these games and activities which are almost universally carried on in the high schools of this country today there is a certain amount of hazard; in baseball one may get hit with bat or ball or be bumped into or knocked down by a fellow player; the same is true of the other games using a ball; in running, jumping vaulting, etc., one may receive a serious fall; in turning handsprings, cartwheels, etc., there is always a possibility of injury; even in such games as tag, hide and seek, which are played and have for years been played by the children in elementary schools, there is always a danger of collision, tripping or falling; and, of course, we know of no more hazardous game than football, which is played in practically every high school in the country. Again, such activities in high schools, in a branch other than physical education, as machine shops, electric welding, printing with presses, which are universally considered as a proper part of the curriculum, carry with them a certain degree of hazard. If, then, the rule is to be that a school district is to be liable for negligence because there is some hazard in the particular activity, and injury might result therefrom, then it will be necessary for the schools to discontinue all of the foregoing activities and courses and go back to the old–day method of teaching the three R's. Section 3.732 (5) of the School Code itself requires that the courses in physical education depart from the old calisthenic idea and provide exercise which will “secure the more advanced forms of coordination, strength, and endurance.” “Roll over two” is admirably adapted to this purpose. (Italics ours.)

In Underhill v. Alameda Elementary School District, 133 Cal.App. 733, 24 P.(2d) 849, 850, plaintiff was struck by a baseball bat in the hands of a fellow pupil. The plaintiff alleged that the school district negligently sponsored the game of baseball. The court said: “It has long been recognized that the physical development of the child must go hand in hand with his mental development. The importance of physical exercise is therefore stressed in our School Code, which expressly requires that ‘attention must be given to such physical exercises for the pupils as may be conducive to health and to vigor of body.’ School Code, § 3.41. It is a matter of common knowledge that the school authorities have quite generally provided play areas adjacent to the school buildings and have encouraged and sponsored the playing of such games as baseball, basketball, volleyball, handball, and the like, and have provided equipment therefor. Baseball, as commonly played in school yards, differs from baseball as played upon the baseball field, in that an appropriate type of softer ball is ordinarily used which renders negligible the chance of injury in the event that any one is struck thereby. All of the above–mentioned games contribute to the physical development of the pupils participating, and there is nothing inherently dangerous about any of them. They seldom result in injury to either the participants or spectators and are ordinarily played by school children of all ages without adult supervision. Nevertheless, it is also a matter of common knowledge that children participating in such games and in fact in any form of play may injure themselves and each other, and that no amount of precaution or supervision on the part of the parents or others will avoid such injuries. The injuries which may result from the playing of said games are ordinarily of an inconsequential nature and are incurred without fault on the part of any one. In such cases there is no liability and, of course, the fundamental rules governing liability remain the same, even though the particular injury may prove to be of a more serious nature. The law does not make school districts insurers of the safety of the pupils at play or elsewhere, and no liability is imposed upon a district under the above–mentioned section, in the absence of negligence on the part of the district, its officers or employees. With the foregoing observations in mind, we believe that, whenever an attempt is made to recover damages from a school district for such injuries, the complaint in the action must set forth facts clearly showing a violation of a duty of care imposed upon the school authorities.” (Italics ours.)

In the case at bar it does not appear that any duty of care was violated by the school authorities. The rule in the Underhill Case was followed in Kerby v. Elk Grove Union High School District, 1 Cal.App.(2d) 246, 36 P.(2d) 431, 94 A.L.R. 1502, in which a student died as a result of a blow on the head during a basketball game. Also in Hack v. Sacramento City Junior College District, 131 Cal.App. 444, 21 P.(2d) 477, where students attempting to carry out orders of an instructor allowed heavy scenery to fall and injure the plaintiff.

In Ellis v. Burns Valley School District, 128 Cal.App. 550, 18 P.(2d) 79, 80, plaintiff predicated the asserted negligence of the district on the fact that it compelled plaintiff, a youth of thirteen years, weighing amout 75 pounds, to join in a running game with a group in which one member was aged fifteen years and weighed approximately 200 pounds. In this game, played during the physical education period and under instructions of a teacher, plaintiff collided with the 200–pound boy and was injured. The court held that the district was performing a lawful act, viz., giving a course in physical education as prescribed by school law, “and although the evidence shows that prior to the accident there were some minor injuries and that children in their play had collided at times, we cannot say that the game as played is inherently hazardous or that any particular peril is attendant upon its play. To so hold would be to bar activity on the school ground, a thing impossible and undesirable and contrary to the very objects sought to be attained by physical education.”

Respondent relies principally upon the case of Goode v. Wills, 135 Cal.App. 21, 26 P.(2d) 504, in which case a professional dancer brought an action against her dancing teacher for damages sustained by her while taking a dancing lesson in acrobatic dancing. The teacher was instructing her in an act in which the pupil does a spring turning her body completely over, and the instructor is supposed to catch her at the waist and steady her to keep her from falling. On this occasion the instructor failed to catch her and she fell, injuring her ankles. That case is readily distinguishable from the case at bar. There, the pupil was expecting and had the right to expect the instructor to catch her. The instructor knew that if he did not catch her she would fall, as she had not yet mastered the trick. He knew, further, or should have known, that she was depending upon him to catch her. In other words, the instructor was negligent in his manner of instructing. In the case at bar, the pupil did not expect the instructor to catch her, the pupil had already mastered the stunt, there was nothing further for the instructor to do but watch the pupil do the stunt and then grade her. In the Goode Case the court held the instructor liable because he was palpably negligent in the manner of instructing, he failed to catch the pupil and assist her in completing the stunt, which he was required and expected to do. In “roll over two” the instructor's assistance was neither expected nor required.

The gymnastic exercise known as “roll over two” is not in itself so inherently hazardous and dangerous that it is negligence to teach it in high school, and as established in Hack v. Sacramento City Junior College District, supra, a school district is not liable simply because the character of the instruction offered or the activity permitted might result in injury. Unless negligence is shown in the manner in which the course was conducted or the activity supervised, there is no liability.

This brings us then to the question of whether or not there was any negligence in the manner in which “roll over two” was taught. Practically the only contention made by the respondent as to claimed negligence in the manner of teaching (other than the fact of teaching it to plaintiff) was that in describing the manner in which the stunt or exercise is performed, the teacher stated that the performers “had to land on their hands, the hands taking the weight of the body almost straight, but under control.” Respondent says that the stunt could not be performed in that manner. This is true, in properly making the dive the hands are used merely to break the fall. They are immediately bent, as the teacher stated in another part of her testimony. In other words, respondent's contention is based merely upon a few words taken from the teacher's testimony and apart from their context. Respondent herself in her testimony does not charge the injury to any improper teaching nor does she claim it was due to attempting to take the weight of her body upon her hands. She failed to co–ordinate and to tuck her head in as she had been taught and had done theretofore. As to the method of teaching, the instructions of the teacher, the illustration by other students, and the practice by the student herself indicates that there was no negligence in the manner of instruction. The evidence shows that the student was brought up to the “roll over two” progressively through such exercises as hand stands which strengthened the arms and “roll over” to which was added the dive to make “roll over two.”

Respondent refers to the fact that the “roll over two” was not expressly prescribed by the board of education. However, she admits that the fact that this was taught in addition to the prescribed curricula does not constitute negligence. Certainly the fact that a teacher teaches some subject beyond that actually prescribed could not, of itself, constitute negligence. Moreover, the Board of Education Bulletin, in referring to the prescribed courses, says: “The purpose is not to secure absolute uniformity in content, methods and procedures, within a given course of study, the purpose is rather to indicate the desirable goals, together with the suggestion of the best extant methods of obtaining those goals, but allowing always for a large measure of individual initiative on the part of the teacher.” Initiative exhibited by an instructor in going beyond the narrow limits of prescribed work could not in itself be negligence. Moreover, the stunt was within the aims expressed in the Board of Education Bulletin requiring stunts which would develop natural power, agility and suppleness. (Italics ours.)

There is no evidence in this case of negligence upon the part of the district. The course was given in compliance with the School Code setting up the requirements of a course in physical education, the teacher was duly qualified, she gave adequate instructions and demonstrations as to the performance of the stunts, and supervised them. There was no evidence to the effect that the stunt was particularly hazardous or dangerous, and the stunt itself as outlined in the evidence is inherently not more hazardous or dangerous than baseball, basketball, and other games, exercises and activities, which are universally carried on in school programs throughout the country.

It not being negligence per se to teach the “roll over two,” was there any evidence that would justify a charge of negligence in teaching it to and ordering it performed by the particular student in this case––the plaintiff? Respondent lays great stress upon the condition of the plaintiff, claiming her to be a frail seventeen year old girl, weighing 117–120 pounds, with a “bad knee.” Just what is meant in the testimony by the word “frail” is not clear in view of the fact that she weighed between 117 and 120 pounds, which is undoubtedly normal for her age and height. However, assuming her to be frail, there is no evidence that this frailness or condition proximately contributed in any way to the accident. Even the plaintiff in describing how it happened does not charge it to her condition. The very fact that she had previously mastered the stunt and believed herself sufficiently prepared in it to submit to the teacher for grading purposes, and that she participated in all her class activities, shows that she was physically strong enough to perform it. The accident was due to her failure to co–ordinate her mind and body and to perform the stunt as directed and not to any physical condition.

Our ruling upon the main points presented by this appeal makes it unnecessary to discuss the other questions raised by both appellant and respondent.

The judgment is reversed.

BRAY, Justice pro tem.

We concur: TYLER, P. J.; KNIGHT, J.

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