JEREMY A. BROKAW, JOEL BROKAW and KAR M A BROKAW, Plaintiffs - Appellants/Cross - Appellees, vs. WINFIELD - MT. UNION COMMUNITY SCHOOL DISTRICT and ANDREW MCSORLEY, Defendants - Appellees/Cross - Appellants.
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IN THE COURT OF APPEALS OF IOWA
No. 8-435 / 07-1328
Filed October 29, 2008
JEREMY A. BROKAW, JOEL BROKAW
and KARMA BROKAW,
Plaintiffs-Appellants/Cross-Appellees,
vs.
WINFIELD-MT. UNION COMMUNITY
SCHOOL DISTRICT and ANDREW
MCSORLEY,
Defendants-Appellees/Cross-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Henry County, John G. Linn,
Judge.
The plaintiffs appeal from the judgment entered following trial on their
claims of battery and negligent supervision. AFFIRMED.
Martin A. Diaz, Iowa City, for appellants.
William J. Bush of Buch, Motto, Creen, Koury & Halligan, P.L.C.,
Davenport, and Steven Ort, New London, for appellee-Andrew McSorley.
Steven E. Ort of Bell, Ort & Liechty, New London, for appellee-Winfield-Mt.
Union School District.
Heard by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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EISENHAUER, J.
Jeremy Brokaw and his parents, Joel and Karma Brokaw, appeal from the
judgment entered following trial on their battery claim against Andrew McSorley
and their negligent supervision claim against Winfield-Mt. Union Community
School District (WMU). They contend the court erred in awarding inadequate
compensatory damages against McSorley, in denying their claim for punitive
damages, and in dismissing their claim against WMU. On cross-appeal, WMU
contends the court erred in overruling its motion for summary judgment. We
affirm.
I.
Background Facts and Proceedings.
Jeremy Brokaw was a
junior at Iowa Mennonite School (IMS) and a starting guard for the IMS varsity
basketball team on January 13, 2004, in their game against WMU. During the
third quarter of the game, Andrew McSorley, a WMU senior and also a starting
guard, struck Jeremy in the head with his elbow, causing Jeremy to fall to the
floor. The referee called a technical foul on McSorley and ejected him from the
game. McSorley later received a one-game suspension in accordance with the
rules of the Iowa High School Basketball Association.
WMU imposed a
suspension of an additional five games for violating its good-conduct policy for
athletes.
On July 6, 2005, Jeremy and his parents filed a petition against WMU and
McSorley. It alleged McSorley had struck him with his fist and sought damages
for assault and battery, including punitive damages. The petition further alleged
WMU knew McSorley was an aggressive player and failed to take adequate
3
steps to prevent such physically aggressive behavior.
Judgment was sought
against WMU for negligent supervision of McSorley.
On July 29, 2005, WMU filed a motion to dismiss for failure to state a
claim upon which relief may be granted.
It argued there was no action at
common law arising from mere negligence against a school district for injuries
sustained in an assault between sports participants during the course of a
sporting event. It also alleged it was immune from liability pursuant to Iowa Code
section 670.4(3) (2005). On August 30, 2005, the court denied the motion.
On April 27, 2006, WMU filed a motion for summary judgment raising the
same issues, which the court denied on January 26, 2007. WMU filed a motion
for interlocutory appeal, which was denied.
The matter came to trial in April 2007. On July 13, 2007, the court entered
its ruling. It found the plaintiffs had proved McSorley committed a battery and
awarded Joel and Karma Brokaw damages in the amount of $13,000 in damages
and Jeremy Brokaw $10,000 in damages. The court denied the plaintiffs’ claim
for punitive damages against McSorley, finding his act did not rise to the level of
willful or reckless disregard of Jeremy’s rights. The court found the Brokaws
failed to prove WMU was negligent in supervising McSorley and dismissed their
claim for negligent supervision.
On August 2, 2007, the Brokaws appealed.
WMU cross-appealed on August 6, 2007.
II.
Scope and Standard of Review. This is an appeal from a court
order in a civil lawsuit; our scope of review of the district court’s decision is for
correction of error. Iowa R. App. P. 6.4. Under this scope of review, the trial
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court’s findings of fact have the force of a special verdict and are binding on us if
they are supported by substantial evidence. Jones v. Lake Park Care Ctr., Inc.,
569 N.W.2d 369, 372 (Iowa 1997).
We view the evidence in the light most
favorable to the trial court’s judgment. Miller v. Rohling, 720 N.W.2d 562, 567
(Iowa 2006).
III.
Damages
for
Battery.
The
Brokaws
first
contend
the
compensatory damages the court awarded on their battery claim against
McSorley are not supported by the evidence and that the court misapplied the
law.
They also contend the court erred in concluding they failed to prove
entitlement to punitive damages.
A.
Compensatory Damages. An inadequate damage award
merits a new trial as much as an excessive one. McHose v. Physician & Clinic
Servs., Inc., 548 N.W.2d 158, 162 (Iowa Ct. App. 1996). We review this question
to correct an abuse of discretion. Id. The question of whether damages in a
particular case are inadequate turns on the particular facts of the case. Id. If
uncontroverted facts show the amount of the verdict bears no reasonable
relationship to the loss suffered, the verdict is inadequate. Id.
The district court awarded out-of-pocket medical expenses incurred by the
plaintiffs in the amount of $13,000. It also found that Jeremy sustained damage
for loss of function to the mind and body in the amount of $5000. Finally, the
court awarded $5000 in damage for physical and mental pain and suffering. In
making this award, the court noted the difficulty it had in determining (1) which of
Jeremy’s symptoms were caused by the battery, (2) what role subsequent
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injuries had on his symptoms, and (3) whether Jeremy had mitigated his
damages.
In support of their damages claim, the Brokaws cite to testimony regarding
changes in Jeremy’s personality and behavior following the battery. They point
to Jeremy’s voluminous medical records, which detail symptoms ranging from
headaches to hallucinations.
They cite to Dr. Phillips’s diagnosis for post-
concussion syndrome, and more specifically, epilepsy spectrum disorder. They
argue an incident where Jeremy slipped and fell on ice in February 2004 and one
in which he was hit in the head by a baseball pitch in the summer of 2005, at
worst, only exacerbated his symptoms. The Brokaws argue Jeremy’s failure to
take a drug recommended to him by his doctor to assist with his symptoms did
not equate to a failure to mitigate his damages because the doctor was not
certain the drug would work.
We conclude substantial evidence supports the district court’s findings of
fact relating to Jeremy’s damages. Jeremy was asymptomatic from January 23,
2004, until his slip and fall on February 2 or 3, 2004.
He also received a
concussion on July 19, 2005, when he was struck in the head by a baseball. The
court found these injuries could have caused new injuries or aggravated preexisting symptoms that were not proximately caused by McSorley’s actions.
Viewing the facts in the light most favorable to the court’s ruling, we concur. The
burden of proving McSorley’s actions caused specific injuries was on the
Brokaws, and they failed to prove by a preponderance of the evidence that all the
injuries Jeremy complains of and the attendant medical expenses are attributable
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to McSorley.
Although the trial court used language suggestive of failure to
mitigate damages as it relates to taking prescribed medication, it only considered
this evidence to decide if certain damage claims were casually related to the
battery. See Greenwood v. Mitchell, 621 N.W.2d 200, 205 (Iowa 2001) (“Under
the avoidable consequences doctrine, a party cannot recover damages that
result from consequences which that party could reasonably have avoided.”). An
award of the Brokaws’ out-of-pocket medical expenses, as well $5000 for the
injury and $5000 for pain and suffering, is adequate on the facts before us.
B.
Punitive Damages. In order to receive punitive damages
under Iowa Code section 668A.1, a plaintiff must prove by a preponderance of
clear, convincing, and satisfactory evidence that the defendant’s conduct
amounted to a willful and wanton disregard for the rights of another. Merely
objectionable conduct is insufficient to meet the standards of this section.
Beeman v. Manville Corp. Asbestos Disease Comp. Fund, 496 N.W.2d 247, 255
(Iowa 1993). To receive punitive damages, the plaintiff must offer evidence of
the defendant’s persistent course of conduct to show that the defendant acted
with no care and with disregard to the consequences of those acts. Id.
The court found that although McSorley’s act was intentional, it did not
“rise to the level of demonstrating a willful or reckless disregard for Jeremy’s
rights” because his action was a split-second decision made in the heat of a
basketball game. The Brokaws contend this conclusion was in error.
We conclude substantial evidence supports the district court’s ruling on
the matter of punitive damages. In order to support a punitive damage award,
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the conduct in question must be egregious. Coster v. Crookham, 468 N.W.2d
802, 810-11 (Iowa 1991).
Here, the court found, “The elbow thrown by
[McSorley] does not appear to have been accompanied by great force. This was
not a brutal substantial physical action.” The act occurred during the course of a
heated basketball game and appeared to be a “split-second” decision. Although
this does not excuse McSorley’s action, it does not rise to a level warranting a
punitive damage award.
III.
Negligent Supervision. The Brokaws also contend the court erred
in finding WMU was not liable for its alleged negligent supervision of McSorley.
On cross-appeal, WMU contends the court erred in denying its motion for
summary judgment.
A.
Negligent Supervision.
violated its duty to supervise McSorley.
The Brokaws contend WMU
They argue school officials could
reasonably foresee that McSorley was likely to commit a battery against a player
of an opposing team due to his past conduct.
To be successful in their claim against the school district for negligence,
the Brokaws must first show the school district owed them a legal duty. See
Godar v. Edwards, 588 N.W.2d 701, 707 (Iowa 1999). Duty is a question of
whether the relationship between the actor and the injured person gives rise to
any legal obligation on the actor’s part for the benefit of the injured person. Id.
However, the duty of a school district concerning the supervision and safety of its
students is not unlimited. Id. at 708. Rather, the scope of the school district's
duty is limited by what risks are reasonably foreseeable. Id. Wrongful activities
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will only be foreseeable “if the district knew or in the exercise of reasonable care
should have known of the risk that resulted in their occurrence.” Id. A school
district will not be held liable for negligence if it could not reasonably foresee that
its conduct would result in an injury or if its conduct was reasonable in light of
what he could anticipate. Id.
In its ruling, the district court made the following pertinent findings:
A careful review of the factual record reveals that WMU
officials did not know, nor in the exercise of ordinary care should
have known, that [McSorley] was likely to commit a battery against
an opposing player. [McSorley] had never exhibited characteristics
of being physically assaultive or being a dangerous individual. The
previous incident between [McSorley] and Danville player
Schlarbaum does not establish that [McSorley] was an aggressive
or assaultive player. [McSorley] played basketball intensely, but
not aggressively.
No witness testified that [McSorley] ever
exhibited aggressive or assaultive behavior. [McSorley] never
previously fouled out of any basketball game, and only once
previously received a technical foul, and that was for cursing.
[McSorley] has never been a discipline problem, never had
previously gotten into a fight, and did not have a reputation for
being an aggressive player.
We conclude these findings are supported by substantial evidence. Because
WMU could not reasonably foresee that McSorley would commit a battery during
the game, they did not breach any duty to Jeremy.
B.
Motion for summary judgment. On cross-appeal, WMU
contends the court erred in denying its motion for summary judgment. It argues
the plaintiffs did not plead a cause of action recognized at common law. It further
contends it was immune from liability pursuant to the discretionary function
exception of Iowa Code section 670.4(3).
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Summary judgment is appropriate where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.
Iowa R. Civ. P. 1.981. It “is properly granted if the only controversy concerns the
legal consequences flowing from undisputed facts.”
N.W.2d 721, 724 (Iowa 1999).
Krause v. Krause, 589
We must determine whether, based on the
undisputed material facts, the moving party is entitled to judgment as a matter of
law. Galbraith v. Allied Mut. Ins. Co., 698 N.W.2d 325, 327 (Iowa 2005).
We first reject WMU’s claim that a cause of action does not exist at
common law. Based upon this special relationship between a school and its
students, claims against a school district based on its own negligence may be
pursued. Doe v. Cedar Rapids Cmty. Sch. Dist., 652 N.W.2d 439, 446 (Iowa
2002).
The negligence claim before us is no different from the judgments
of private individuals which are reviewed every day through the
mechanism of an action in tort. Personal injury from the negligence
of those into whose care children are entrusted is not a risk that
school children should, as a matter of public policy, be required to
run in return for the benefit of a public education.
Id. at 446-47.
We next turn to WMU’s argument regarding immunity against such a claim
under the discretionary function exception. Iowa Code section 670.4(3) provides
immunity from
[a]ny claim based upon . . . the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the
part of the municipality or an officer or employee of the municipality,
whether or not the discretion is abused.
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The school district is entitled to this immunity “to the extent that the city’s claims
were based upon the exercise or performance or failure to exercise or perform a
discretionary function or duty.” City of Cedar Falls v. Cedar Falls Cmty. Sch.
Dist., 617 N.W.2d 11, 19 (Iowa 2000).
In determining whether WMU's
challenged actions fall within the discretionary function exemption, we apply a
two-step analysis to each specification of negligence. Id. We must inquire as to
(1) whether the action in question was a matter of judgment or choice for the
acting employee and (2) whether, if an element of judgment is involved in the
challenged conduct, the judgment is of a kind that the discretionary function
exception was designed to shield. Id.
Although the question of whether McSorley should have been removed
from the game was a matter of judgment or choice for his coach, the judgment
involved was not the kind the discretionary function exception was designed to
shield. The exception protects governmental actions and decisions which are
made based on considerations of public policy grounded on social, economic,
and political reasons.
Id.
As our supreme court has held, “[s]uch policy
considerations are not involved in the decisions made by a teacher in supervising
her class.” Id. (citing Hacking v. Town of Belmont, 736 A.2d 1229, 1233-34 (N.H.
1999) (finding discretionary function immunity inapplicable to decisions of
referees and coaches supervising basketball game where a student was
injured)).
Because a cause of action for negligent supervision is cognizable under
Iowa law, and because WMU was not immune from liability under the
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discretionary function exception, the district court properly denied WMU’s motion
for summary judgment.
AFFIRMED.
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