Metropolitan News-Enterprise


Friday, September 29, 2006


Page 1


Prudent Person Standard, Not Limited Duty of Care, Applied to Middle School Golf Class—Appeals Court


By TINA BAY, Staff Writer


The normal prudent person standard of care applies to potential injuries occurring in a middle school golf class, this district’s Court of Appeal ruled yesterday.

Reversing a summary judgment order by Los Angeles Superior Court Judge Tracy T. Moreno, Div. Three reinstated a negligence suit filed in 2001 by Jane Hemady against Long Beach Unified School District and its employee, over injuries she incurred in October 2000 while taking a physical education golf class at Stanford Middle School.

In dismissing the suit, Moreno had ruled that the defendants’ liability was governed by the limited duty of care for certain sports activities that the Supreme Court established in Knight v. Jewett (1992) 3 Cal.4th 296 and Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990. She further held that Hemady failed to raised a triable issue of material fact that the defendants breached the limited duty of care.

But Justice Patti S. Kitching, writing for Div. Three, explained that the Knight/ Kahn exception to the ordinary prudent person standard of care applies to sports that are inherently risky, where the normal duty of care would discourage vigorous participation by co-participants and chill a coach’s role in challenging or pushing student athletes.

“[B]eing hit in the head by a golf club swung by another golfer is not an inherent risk in the game of golf, especially in physical education golf taught to a group of seventh graders,” she said, adding:

“Applying a prudent person standard of care in this case to determine liability will not chill a coach’s role to challenge students or to push them to try to hit the ball more accurately or further. It may require school districts and coaches to evaluate the size, staffing, and organization of physical education golf classes. However, re-structuring the class, reducing class size or providing more personnel will not prevent or deter a physical education teacher from teaching the basic mechanics of the golf swing and challenging students to improve their golf game.”

Moreover, requiring school officials to ensure student safety by providing additional personnel or decreasing the size of the class will not affect a student’s vigorous participation, the jurist wrote.

Hemady selected the golf class among other options offered to satisfy her physical education requirement. 

On the sixth day of class, she alleged, unorganized and confusing instruction by physical education teacher Brian Feely resulted in the student in front of Hermady swinging her club back and hitting Hermady in the mouth.

According to Hemady’s Pasadena-based appellate counsel, W. Kirkpatrick, his then-12-year-old client’s injuries included a fracture to her mandible, which left a 2-inch scar requiring costly reconstructive surgery, as well as loss of her lower front teeth necessitating dental implants and bone grafts. He said the total cost of treating her injuries is an estimated $40,000.

Hemady claimed that Feely failed to follow his own protocol for running the class, which involved giving whistle commands to let students know when to hit the balls, retrieve the balls, and rotate positions. The class consisted of 54 students divided into 11 groups, each lined up behind a cone. At Feely’s direction, each student was to hit four balls while the other group members waited in a marked area 10 feet behind the hitting line.

When it was almost Hemady’s turn to hit, Feely allegedly failed to give the appropriate whistle command for when to change positions. Seeing that the student in front of her appeared to be finished, Hemady stepped forward to place her ball on the ground. The student standing in front of her simultaneously swung her club back without warning, striking her in the face.

Feely’s training in golf instruction allegedly consisted only of an hour-and-a-half seminar prior to teaching the class.

Hemady’s negligence action went to trial before a Norwalk jury in 2002, with Judge Thomas McKnew Jr. presiding. McKnew disallowed plaintiff’s expert testimony at trial regarding the standard of care on the ground that her proposed expert, a long-time school principal who was also a non-practicing attorney, was deemed to be a legal expert.  Following standard of care testimony by two experts for the defense, the trial ended in a judgment for the defendants. Hemady’s motion for a new trial was denied.

Div. Three reversed the judgment on appeal, concluding in an unpublished opinion that the trial court prejudicially excluded the expert Hemady offered on the standard of care.

On remand, Hemady successfully moved to disqualify McKnew pursuant to Code of Civil Procedure Sec. 170.6. The case was then reassigned to Moreno in San Pedro, from where it was sent to the court of appeal a second time, this time on the standard of care issue.

Kirkpatrick told the MetNews that the case will now go back to a third trial court and the fight is far from over.

“The school has steadfastly refused to pay a cent toward this thing,” he said.  “I’m pleased that the court has published this opinion, because the erroneous interpretation of the law that the school district urged would’ve left students unprotected in curricular activities.” 

Counsel for LBUSD, which Kilpatrick said has since eliminated golf from its curriculum entirely, did not return calls seeking comment.

The case is Hemady v. Long Beach Unified School District, 06 S.O.S. 5249.


Copyright 2006, Metropolitan News Company