My Opinion: Yes, the idea behind dodgeball is to hurt someone. It's not a sport, it's a stupid game. The goal of school isn’t to teach students to hurt one another. Students playing the game wear no protection, like they do in football or hockey, and there are no rules designed to protect the weak students. Even in boxing they wear protective equipment. Teachers teaching dodge ball are idiots who should be sued and fired. But this is my personal opinion and not what I think legally.

Question: What are my best options if my son was injured in a PE class?

Question Detail: I have just received the results from my sons x-rays and MRI, which indicates a torn ACL and partially torn MCL. These will require surgery in the very near future; it also will have a major impact on his future with Coast Guard Academy. The injury occurred in a physical education class at his school, not an extra-curricular sport. This upsets me naturally, but to compound the issue, he was also denied medical attention on that specific day. The teacher denied him of going to clinic/nurse, even though he asked several times and there was immediate indications on knee, of the injury (redness, swelling within minutes of incident, he sat down the rest of class). The school is on summer session and therefore very few people are there and the ones I talk to can't tell me anything other than come back when the new school year starts. I was specifically asking for an approved list of physical education activities, with no such luck. It's my impression they do not have such a list. This occurred playing a cross-version of Dodgeball and Capture the Flag, in which kids are throwing balls at each other, in an attempt to get then other out, while trying to get the other teams flag. A collision occurred with another student as my son was dodging an incoming ball. The unprofessionalism of the school staff, is very sad and denying my son medical attention is crossing the line. I see some places on-line where the school could be held liable, but I see others where they are not.

Answer: Well yours is a good question, but not one I see very often and have never represented a student for an injury that happened in a PE class, let alone one involving dodge ball. I've represented a student with a severed finger from shop class but never a torn ACL/MCL from a game where the idea was to do just that, hurt another student. When I was in high school we called it "Murderball". Dodgeball is a stupid game that I see as physically risky and presenting a high risk of an injury; it's is one encouraging bullying with the main goal being to physically harm another student. It's mostly the aggressive bullies who like this stupid game because they get to pound the crap out of the smaller weaker kids. Teachers who allow it should be fired and my guess is the teachers who teach it are themselves bullies. Go find a lawyer to do the research in your district and who can then file the claim with EMC. EMC insures most of the school districts in Iowa.

So what should you do? You need to find a lawyer who can get all the facts and research the standards that apply to your school district. A recent Iowa Supreme Court case discusses loco parentis and liability on the part of a school for failing to properly supervise. While the Mitchell vs Cedar Rapids Community School District case involves criminal activity off campus during non-school fuctions the legal concepts would seem to lend themselves to your situation.

Dodgeball is a game in which players on two teams try to throw large balls at each other while avoiding being hit themselves. In the United States, the game is typically played among children 6-12 in elementary school. However, internationally, the sport has also emerged as a popular middle school, high school and college sport. It is also popular in informal settings and is often played on a playground, in a gym, or in organized recreational leagues.

There are many variations of the game, but generally the main objective of each team is to eliminate all members of the opposing team by hitting them with thrown balls, catching a ball thrown by a member of the opposing team, or forcing them to move outside the court boundaries when a ball is thrown at them. The form that is most common in U.S. schools was popularized by the 2004 film Dodgeball: A True Underdog Story.

Case Name: Mitchell vs Cedar Rapids Community School District, IN THE SUPREME COURT OF IOWA, No. 12–0794 (Filed June 21, 2013)

Key Persons and Parties:

  • Kennedy High School in Cedar Rapids
  • DE: 14 year old functioning at a third grade level with a 67 IQ.
  • MF: 19 year old male
  • SK: DE’s friend.
  • Dr. Bainbridge: Expert for Mitchell
  • LeeAnn Mitchell: Mother of DE
  • JI: Car driver
  • VM: MF’s friend in 10th grade.

Personal Injury: It appears to have been statutory rape taking place off campus, at a non-school function having nothing to do withe the school. A male student who was 19 year old plead to the following and as quoted from the reported decision:

"D.E. did not tell Mitchell what had happened that afternoon until early May 2008. Upon learning the details from D.E., Mitchell took D.E. to the police department and filed a report. M.F. eventually pled guilty to sex abuse in the third degree for committing a “sex act” when “the other person is fourteen or fifteen and the person is four or more years older than the other person.”

Alleged Negligent Acts: In November 2009, Mitchell sued Kennedy for negligence, individually and on D.E.’s behalf, alleging Kennedy had breached a duty of reasonable care in one or more of the following ways: (1) failing to adequately supervise D.E., (2) failing to timely notify Mitchell of D.E.’s unauthorized absence from school, (3) failing to adequately monitor D.E.’s attendance at school, (4) failing to take appropriate and immediate action upon the discovery of D.E.’s absence from school, (5) failing to provide adequate security to prevent special education students from leaving the school campus without authorization, and (6) failing to maintain an adequate system of monitoring special education students during the school day.

Expert Opinion: Mitchell’s expert, Dr. Bainbridge, opined Kennedy should have taken—and other schools would have taken—additional steps to find D.E. and prevent her from leaving early that day, including: (1) having a paraprofessional monitor D.E. when she was not in the classroom, (2) providing electronic alarms at the non-main exit doors deterring unauthorized student departures during passing periods, (3) locating security officers around the school’s perimeter to question students leaving campus early during the school day, (4) notifying Mitchell immediately upon the discovery of D.E.’s unexcused absence, and (5) promptly alerting the police that D.E. had gone missing.

Verdict: The jury returned a verdict for D.E., finding $500,000 in damages and apportioning seventy percent fault to Kennedy and thirty percent to D.E.

Kennedy’s Appeal Issues: Kennedy raises three issues on appeal, contending: (1) a school district owes no duty to protect students from a third party outside the school day, off school grounds, and not during a school activity, (2) the trial court erred in denying Kennedy’s motions for directed verdict and judgment notwithstanding the verdict because the harm caused was not within Kennedy’s scope of liability as a matter of law, and (3) the trial court erred in including among the submitted specifications of negligence Kennedy’s failure to call the police.

What’s the Duty? When Kennedy’s counsel forwarded proposed jury instructions to the court and opposing counsel a few days before trial, he expressly conceded Kennedy had a duty of reasonable care.3 During the jury instruction colloquy at trial, he took the same position, explaining “[the school] must exercise the same standard of care towards [its students] that a parent of ordinary prudence would observe in comparable circumstances,” and “[t]he school’s duty includes the duty of reasonable care to the student with regard to risks that arise within the scope of the school–student relationship.”

Scope of Liability: Turning to the remaining scope-of-liability inquiry, we have explained that tort law will not always impose liability on an actor for all harm factually caused by an actor’s tortious conduct. Thompson, 774 N.W.2d at 837. Instead, an actor’s liability is limited to the physical harms that result from the risks that make an actor’s conduct tortious. Id. at 838; see also Hoyt v. Gutterz Bowl & Lounge, LLC, 829 N.W.2d 772, 780 (Iowa 2013). We employ the scope-of-liability analysis to avoid unjustified liability and to confine liability in a way consistent with the reasons for holding an actor liable in the first place. See Hoyt, 772 N.W.2d at 781. Scope-of-liability determinations are fact-intensive, requiring consideration of the risks that make an actor’s conduct tortious and a determination of whether the harm at issue is a result of any of those risks. See Thompson, 774 N.W.2d at 838.

Quick Analysis: This is a failure to supervise case stemming from Kennedy not following established procedures for supervising mentally challenged students.

Court Concludes: "We conclude the evidence was sufficient to support the jury’s findings that Kennedy acted unreasonably and that its negligence increased the risk of D.E.’s harm. Those findings are consistent with the Restatement’s scope-of-liability analytical framework and with the caselaw from jurisdictions that have found schools may be liable for injuries to students occurring after school hours and off school grounds. See, e.g., Perna v. Conejo Valley Unified Sch. Dist., 192 Cal. Rptr. 10, 12 (Ct. App. 1983) (explaining school district may be held liable for injuries suffered by student off school premises and after school hours when those injuries are a result of school’s negligence while student is on school premises); Doe v. Escambia Cnty. Sch. Bd., 599 So. 2d 226, 228 (Fla. Dist. Ct. App. 1992) (reversing summary judgment for school board; finding fact question remained regarding whether school district had breached its duty to adequately supervise mentally disabled fourteen-year-old who left school grounds during lunch period with male and was later sexually assaulted in private home); Gary v. Meche, 626 So. 2d 901, 905 (La. Ct. App. 1993) (finding liability for after-hours, off-campus injury, holding school’s duty to supervise children requires “a policy to insure that young children, such as [a six-year-old], do not leave the school unattended”); Sutton v. Duplessis, 584 So. 2d 362, 366 (La. Ct. App. 1991) (explaining school authorities should have foreseen that six-year-old student might disobey instructions not to leave office, and thus school board was liable for injuries sustained by student, who left school grounds after school, darted out into street and ran into side of automobile, where student had been waiting for his mother to pick him up in office with secretary); Jerkins v. Anderson, 922 A.2d 1279, 1281 (N.J. 2007) (explaining school may be liable for postdismissal, off-campus injury and holding school’s duty of reasonable supervision requires school to create reasonable dismissal policies to protect students as the school day ends)."

Concurrence and Dissent: Cady concurred while Waterman and Mansfield dissented. I agree with Justice Waterman’s analysis, but I would disagree with everyone that the defense failed to raise the challenge of no duty during the motion for directed verdict. After all what else could Kennedy be arguing about? It appears the duty issue was so obvious that Kennedy's lawyer didn't need to mention to everyone standing in the rain, that it was raining.
 

Steve Lombardi
Iowa personal injury, workers' compensation, motorcycle, quadriplegic, paraplegic, brain injury, death
1 Comments
you know... have you played it before? if you have it is the best game in the world! this guy should get sued from this website!! stupid
by everyone says April 1, 2014 at 08:24 PM
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