cite as Tamagger v. Waloy Elementary, (Yap, 1994)

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Civil Action No. 1994-059

     When a child was injured playing basketball on school grounds the following questions were presented to the court for its determination:

1)   Was there a duty to supervise on the part of the teachers under these facts?
2)   Was there a failure on the part of the teachers to act responsibly when the injury occurred?

I.  Duty of Supervision
     While both parties do not dispute the fact that teachers have a general duty to supervise and control the behavior of students during school hours, this court feels that such a duty is not absolute. It is said that the teacher's duty arises since they "stand in the place of the parent" while the students are at school. Like parents, however; teachers cannot be expected to supervise, control and protect every student from their own follies or otherwise at every moment of the day.

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A.  Time frame - "The last bell"
      Based on the testimonies heard in open court it can be deduced from both sides that there is a last period of the school day, called activity period (other testimonies refer to it as P.E.), coming immediately after the "last" instruction bell. This period is reserved for cleaning and sometimes P.E. (sports) upon teacher approval. It was also demonstrated that there is another bell (also referred to as the "last" bell) after this period, signalling the end of the cleaning and/or any teacher approved extracurricular sport/P.E. activities. The actual time for this bell to ring was undetermined as conflicting testimonies from both sides put the time anywhere from 2:10 p:m. to 2:35 p.m., indicating that the cleaning periods use differing amounts of time every day. Hence, the court views this as an open-ended period the end of which is subject to completion of cleaning or other teacher approved activities
B.  Foreseeability
     According to testimony, when the "last" instruction class is completed, the bell rings and all school kids are expected to go home except the designated cleaning students. Given this, it is therefore reasonable for the teachers to expect that the noncleaning students are leaving for home and now they (the teachers) are free to divert their attention to other matters on hand. It was not shown that Thilrow was a part of the cleaning team, that he was a part of any teacher approved activity for that period, or that he was even assigned any chores to cause him to remain in school.

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     Testimony indicated that according to the school policy only those designated to clean outside and inside the classrooms after the last instruction bell rings shall remain in school, the rest of the students should go home. Plaintiff only speculates but did not disprove the existence of this policy, that students with no assignments should go home during this period. Nor did he show that the teachers had knowledge of the basketball play and granted use of the facilities.

     It was shown that the only school sanctioned sports or P.E. activities for this period are those that receive the teacher's prior approval and may also be included as an approved extracurricular activity for that period. No evidence was presented to show that the game in which Thilrow participated, and was thus inured, went through such an approval process. The sport activity depends on the teacher and students agreeing as to whether an extracurricular P.E. period should be had or not. Plaintiff did not demonstrate that the incident took place during an extracurricular activity approved by the teachers for that period.

     Thus, plaintiff's reliance on Titus v. Lindberg & Board of Education, is unwarranted. In Titus it was shown that not only did the principle and school know about the gathering of students and the potential for trouble, the principle actively took it upon himself to come to school early to walk around and supervise. Knowledge and active supervision were shown.

     The case at hand is different than Titus however. Since there were no assignments by the teachers to Thilrow during that period it is reasonable to conclude that Thilrow understood it to

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be his free time and therefore chose, on his own, to play basketball with the other children. The fact that they were using a privately owned ball further demonstrates that the play was not a school activity. Therefore the court holds that no foreseeability existed on the part of the teachers.
C.  Would supervision have prevented?  
     Plaintiff contends that the teachers neglected the performance of their duty to supervise in order to prevent the injury by not being present on the court when the incident occurred. The plaintiff's argument assumes that the teacher's duty to supervise children at school indiscriminately involves all actions and all activities children choose to do by themselves at all times during school hours. As stated earlier, it is erroneous to assume that teachers are able to supervise and control every student at every moment throughout the day, especially during recess or immediately after school. Since teachers were unaware of any sanctioned ballplay, it is understandable that no teacher was present at the ballcourt at the time when the injury occurred.

     The plaintiff further contends that had there been a teacher present at the ballcourt, the injury could have been prevented because his mere presence there would help deter the bigger children from pushing around the smaller ones. The implication being that a teacher's presence would have prevented Buchun from pushing Thilrow to the ground. This view, even if it is taken generally, is speculative in that basketball as a sport is of the type commonly known to involve bodily contact form time to time

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as the players maneuver to gain control of the ball. Injuries in this type of games may be expected due to the occurrence of some inherent roughness of the sport. The fact that there are provisions for "fouls" shows that rough contact sometimes occurs and should be expected.

     Even if the argument is taken at face value, a teacher could not have anticipated accurately what Buchun would do when he ran after Thilrow until he had caught up with him and struggle for the ball had already ensued. By that time it would be too late. Therefore, even with a teacher present Thilrow's injury would not have been prevented. This is a case where Huchun and Thilrow must take responsibilities for their own actions and decisions.

D.  Unresolved Policy
     Testimonies given by both sides raise concerns that some students may not have been very clear as to what time they should leave school. Should they go home during or after the cleaning period? The court views this as an unsettled question, one that must be dealt with immediately by the school teachers and Board to eliminate confusion in the interest of all concerned. Teachers should have persisted in the formulation and enforcement of their own school rules and policies to ensure that all students understand clearly that unless they have assignments they must go home or, be punished, or whatever the case may be. That should not in this instance be interpreted as negligent conduct, however, based on the discussion above.

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II.  Taking responsible steps when injury occurs
     Defendant's witness stated that when the school principal, Mr. Ganangred, looked up from his typewriter in the office he saw Thilrow being chased and pushed to the ground. Ganangred then sent for Thilrow to come to the office.

     Plaintiff testified that he ran after the ball while they were playing basketball when Buchun ran from behind and pushed him. He fell down hard and broke his collarbone. Ruthy, a fellow student, assisted him up and walked him to a water tank to wash his face when the principal's call came for him to go to the office. Pason was the teacher who performed massage on Thilrow's arm in the presence of Ganangred and Waathag.
A.  Initial help - the massage
     Though plaintiff alleged that there was mistreatment or mishandling of his injured arm imposed by Pason, there was no supporting evidence shown in court to establish the facts, or that further injuries to the nerve, as charged by plaintiff, exist and in fact were resultant from Pason's mishandling. The plaintiff's expert witness' statement that "there may be other injuries which could not have shown on the x-ray" is nonconclusive and therefore carries no weight. He stated, however, under cross-examination, that it was "proper for the teacher to massage the arm lightly to get the pain reduced." Witnesses who were present at the time when Thilrow was being massaged by Pason did not testify to any drastic or unreasonable handling.

     It is also the plaintiff's contentions that since Thflrow's

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arm cannot lift heavier objects, nor can he play ball or go fishing with it, it is therefore implicit that such condition is a result of nerve injuries sustained by Thilrow in the hands of Pason. Without more this is merely unsupported speculation. Testimonies given in court offer no basis of proof to support these allegations. In cross-examination, the defense expert witness stated that nerves cannot be detected by x-ray, but if nerve damage is present loss of finger functions can be expected. No evidence was presented to demonstrate that Thilrow has experienced loss of finger functions. Nor was there any other evidence presented by the plaintiff's expert witness to establish dysfunction of Thilrow's arm or what causes the delay, if any, in the healing process and complete restoration of Thilrow's arm functions. Defense expert witness recalled that Thilrow did not keep his hospital appointment with him (Dr. Thinon), and therefore was unable to give his professional opinion about Thilrow's condition. Thus it is not known whether the claimed limited usage of Thilrow's arm, assuming it is a fact, was due to any further induced injuries or failure to follow through with the doctor's order, and cannot be determined from the evidence presented.

     In his testimony, Pason says that when Thilrow came into the office he wanted first to see what kind of injury Thilrow had twined from the incident. Pason then tried to calm Thilrow down. Because Thilrow was at that, time still crying, Pason asked him to take three deep breaths to calm him, which he did. Pason asked Thilrow to remove his shirt so Pason could have a better look at his shoulder. Pason quickly discovered that Thilrow

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could not on his own raise his arm up to take off his shirt, so Pason helped him and then began massaging Thirow's arm. He held Thilrow's arm and slowly raised it up and down several times. There was no evidence shown of twirling and pulling the injured arm as claimed by Thilrow. Therefore, the teacher's immediate response to Thilrow's injury up to this point were reasonable.

B.  Follow through
     Plaintiff maintained that the teachers neglected to give proper attention to the medical and treatment needs of Thilrow after the injury by failing to notify his parents or take him to the nearest medical facility or the hospital. Instead they let him take off on his own. Defense witness countered that Thilrow ran out of the office while they were still, discussing what to do, implying reasons and excuses for not following through. This argument, however, does not carry weight as teachers could have, and in fact should have, taken charge of the situation and contacted the parent or parents right away.
     There is no question at this juncture that the teachers failed to fulfill their duty toward the welfare of an injured student inside the school grounds whose condition had been put to their attention. Any on campus student injury, regardless of fault, which comes to the attention of the teachers that, have serious implications shall be brought to the parent or parents attention or be brought to a medical treatment center  without unnecessary delay. The teachers in this instance  breached this general duty by neglecting to notify the parents of

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Thilrow or take him to the hospital or other medical facility for proper care and attention right away as school policy and procedure states.

III.  Conclusion
     In summary, the following conclusions have been made:

     1)  Although there is a general duty to supervise students put into the care of teachers and the school, and that duty may extend to approved after school activities, it did not extend to Thilrow since there was no teacher approval or knowledge shown.

     2)  Even if there had been approval giving rise to a duty the mere presence of a teacher would not have prevented the injury.

     3)  There is a general duty to help inured students by trying to assess the damage and notify the parents or hospital if necessary.

     4)  The teachers begun their help of the student reasonably in this case, they just did not follow through by alerting the proper people.

IV.  Damages
     Based on the above conclusion, the defendant education/government is hereby found negligent in the proper treatment of Thilrow by not following through once care had been initiated. Defendant is hereby ordered to pay all medical bills directly associated with the injury sustained by plaintiff.

     Each party shall be responsible for and bear their own costs

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of suit.


Dated: October 13, 1994

                              Samuel Falanruw
                              Chief Justice

Filed: October 13, 1994

                              Clerk of Courts
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