SCHOOL LIABILITY AND CONTRIBUTORY NEGLIGENCE


The Indiana Supreme Court recently rendered an opinion dealing with the concepts of public school liability and contributory negligence. In Funston v. School Town of Munster, the hoosier high court ruled that the defendant school corporation was entitled to summary judgment as a matter of law based upon the facts presented. Because the case arises in a setting which will be familiar to many readers, and also because the ruling might be considered to be an interesting and/or debatable one, I've decided to briefly summarize it here for your consideration.

The plaintiff, Howard Funston, was injured when he fell from the top row of a set of bleachers while watching his son participate in an AAU basketball game at the Munster High School gymnasium. As a result of his injuries, he filed a legal complaint against the school, claiming that the school was negligent in providing bleachers which did not have any back railing at the top. Significantly, Mr. Funston had been at the gym for about four hours prior to his fall, watching two basketball games. During the earlier games, he sat on a lower row on another set of bleachers, leaning back against the seats behind him.

In order to watch his son's third game that day, Mr. Funston switched to a new set of bleachers, and went to the top row for a better view. He claimed that he never noticed that there was no railing there. After sitting on the top row, he decided to get a bit more comfortable. He crossed his legs, leaned back, and toppled off of the bleachers. When asked in deposition about his conduct, Mr. Funston testified:


Logically, I would think there would be a back there. I had sat on the other bleachers and I didn't sit at the top and I had leaned back in several of those bleachers on the next step.....I thought there was something back there....I'm not sure what I thought was back there at the time.


Under Indiana law, a governmental entity, such as a school corporation, is entitled to judgment as a matter of law if it can establish that the person bringing suit is responsible for any negligence which contributed to the injury. After hearing all of the evidence presented, the Judge of the Lake Superior Court determined that the school corporaton had met its burden, and entered summary judgment in its favor.

On appeal, the The Indiana Court of Appeals disagreed. It reversed the Lake Superior Court Judge, finding that there were conflicting inferences as to whether Mr. Funston had been negligent. The appeals court felt that the matter should be submitted to a jury for its opinon.

The matter was then appealed to the Indiana Supreme Court. Writing for the majority, Justice Brent Dickson reinstated the opinion of the trial court judge. The majority held that, as a matter of law, Mr. Funston was at least negligent to some degree in failing to realize that there was no railing behind him before he decided to lean back and get comfortable.

The lawyers for Mr. Funston argued that a reasonable spectator could be distracted by the game and lean back as Mr. Funston did. They argued, therefore, that Mr. Funston's conduct was reasonable under the circumstances. In commenting upon this agument, Justice Dickson stated, "It is certainly understandable that Mr. Funston would be distracted as he engaged his attention on his son's basketball game. But being understandable does not equate with being completely free of all negligence. We find from the undisputed facts that that only a single inference can be reasonably drawn: Mr. Funston was negligent to some degree."

As is noted previously, this decision was not rendered without some controversy. Justice Rucker of the Supreme Court wrote a separate, dissenting opinon in which he agreed with the prior opinion by the Indiana Court of Appeals. In his view, Mr. Funston and his atttorneys had presented sufficient evidence to allow the matter to go forward to be presented to a jury. He noted that summary judgment is rarely appropriate in negligence cases, and opined that Mr. Funston should have been allowed his day in court.

I tend to agree with Justice Dickson and the majority of the Indiana Supreme Court on this one. It seems to me that Mr. Funston should be held responsible for his own actions in failing to notice the absence of a railing. There was no inherent defect in the railing; it only became dangerous because Mr. Funston failed to look out for his own safety.

The majority of the Indiana Supreme Court has spoken. Mr. Funston's case has been dismissed, and his claims will never be heard by an Indiana jury. What's more, his case will now be considered as binding precedent on future Indiana courts which consider this issue.

WEDDING BELLS....CAN IT BE TRUE?


Just over two years ago now, my daughter Caitlin began dating a seemingly fine young fellow named Rocky. When she brought him home to meet me for the first time, I was quite impressed. Rocky was polite, clean-cut, and articulate. He made appropriate eye contact, smiled affably, and had a nice firm handshake. He seemed to be a bright and industrious lad.

Of course, it took me a little while to make sure that he really WAS a fine young fellow, and that he wasn't pulling an Eddie Haskel on me. After all, it is my job, as a father, to be something of a professional skeptic. Although I may not always be particularly vocal about my initial impressions, I am not easily won over. Just because a young fellow doesn't have his hat on sideways doesn't mean that he automatically passes muster with me.

As I got to know Caitlin's new beau over the next couple of years, I found him to be as good as advertised. I found him to be honest, responsible and reliable. The more he appeared at our home--which became a very frequent occurrence indeed--the more I liked him. He revealed himself to be an old-fashioned gentleman. Most importantly, he treated my daughter with concern and respect. As I watched their relationship develop, it became abundantly clear to me that they were in love.

I was thus not entirely surprised a month or so ago when Rocky asked for a private meeting with me. Once we were alone, he told me that he planned to ask for my daughter's hand in marriage, and that we wanted to ask for my approval. I must say that I appreciated that gesture very much. How many young men do that these days? And, since Rocky and Caitlin are both adults who are in love and seem to know what they want, how could I do anything other than to give my unqualified blessing?

And so it is that, one week ago today, Caitlin and Rocky became engaged. They will be married next June, shortly after Caitlin finishes her junior year at Bellarmine University. She is determined to finish school on schedule, and Rocky totally supports her in that goal.

It seems unbelievable to me that Caitlin is now engaged. It truly feels as if one moment she was playing with dolls, and the next she was all grown up. Such is the way of the world, I suppose.

In any event, I am pleased for Caitlin and Rocky. I think that their future looks extremely bright, and I am excited for them.

A FRIEND I NEVER KNEW


O.K., I admit it.....I am a sports junkie. It seems as though I cannot get enough when it comes to sports. I love watching sports, listening to sports, and talking about sports. And for a sports junkie like me, the advent of sports talk radio has been a godsend. No longer do I have to listen to the sounds of silence, or tunes, as I drive along in my car these days. Now I can always listen to interesting discussions about my favorite teams and the games that they play.

Just a week ago, I was listening to one of my favorite local radio personalities: Scott Thompson, of WSZ / ESPN radio in Louisville. I always looked forward to listening to Scott, as he clearly approached his job with great zeal and enthusiasm. His show was always interesting. He was the host of the "SportsDrive" program, which was on the air on weekdays from 4:00 to 6:00 p.m. He was also the general manager and a co-owner of WSZ. According to the station's website, Scott's involvement at WSZ was the fulfillment of a life-long dream for him. As I listened to his commentary last week, he seemed to be full of his usual insights and vigor. There was no hint that anything might have been amiss.

Tragically, Scott Thompson passed away unexpectedly late last Friday evening. Although the story has been in the local papers, there has been no indication as to the cause of his death. He was 45 years old, and left behind a wife and two teenage children.

I was surprised by the extent of my sadness upon learning of the passing of Scott Thompson. Although I never met him, I felt as though we had become friends through his radio commentary. We were about the same age, and I listened to him whenever possible. When I discussed his passing with a couple of fellow sports junkies who work in my office, I discovered that they felt the same way about him. We all feel as if we have lost a friend, even though we never met the man.

I suppose this shows that radio and television personalities have a special opportunity to have an impact upon many people whom they have never met. Scott Thompson connected with me, as well as with my sports-crazy buddies, by sharing his personality with us over the air. I will miss listening to his show and, like many, many others, send heartfelt condolences to his family and friends.

SIDEWAYS HATS AND OTHER FASHION STATEMENTS


During my last post, I discussed my hopes for the Cincinnati Reds for this year, and I analyzed their chances for continued success for the remainder of this season. As I re-read that post, I realized that my entry was somewhat deficient in that it failed to mention Brandon Philips, who has been a stellar addition to the team as a second baseman this year.

Philips began the season with the Cleveland Indians. He came to the Reds just after the first week of the season, and I knew very little about him before he arrived in the Queen City. My first impression of him was a negative one. The reason: He wore his baseball cap with the bill pulled slightly to one side. Although he was not wearing the bill straight out to the side--a look that I first saw, to my dismay, being sported by former University of Louisville basketball player Tony Kimbro--it was definitely NOT facing forward. Judging a book by its cover, I quickly decided that there was something not to be liked about Philips.

You see, when it comes to baseball--sports in general really--I am something of a traditionalist. The purpose of a baseball cap, it seems to me, is to sheild the sun from the player's face, a task which is made much more difficult if the cap is not facing forward. I assumed that, as a player who wore his hat in a non-traditional fashion, Philips must be a troublemaker who was trying to draw unwarranted attention to himself. As it turns out, my preconceived notions about him could not have been further from the truth.

After arriving in Cincinnati, Brandon Philips quickly established himself as a player with whom to be reckoned. He immediately had some offensive explosions that were instrumental in helping the Reds to gain key wins shortly after he arrived. He displayed defensive skills that proved that he was a more than adequate second baseman, with a cannon for an arm. Most surprisingly, at least in light of my prior rush to judgment about his character, was the fact that he turned out to be soft-spoken, articulate, and humble.

Perhaps it was a bit harsh of me to judge Philips, before seeing him play, based upon the way that he wore his hat. In the sports world, however, just as in the world at large, first impressions go a long way.

During the NCAA basketball tournament last March, I had a discussion about basketball style with my brother Jonathan, who is a University of Kentucky fan. As you may know--or will quickly discover if you keep reading this blog--I am a very staunch and long-time University of Louisville supporter. (This situation does indeed lead to many friendly family feuds, which will perhaps be the subject of another post in the future.) In any event, as my brother and I were watching the tournament, I noted with disapproval the number of players from other teams who were wearing headbands.

I commented to Jonathan that I respected the fact that neither of our favored teams had any players sporting that look. Presumably, both Rick Pitino and Tubby Smith disallow headbands. I heartily approve of that stance. To me, headbands on basketball players look absolutely ridiculous, and serve no legitimate purpose. (Trust me; As a shaved-head dude, I know this to be true. They are not necessary.) I don't think that anyone other than Wilt Chamberlain should ever wear a headband while playing basketball. It just looks goofy.

In response to my headband rant, Jonathan made an interesting observation, as he very often does. He speculated that, although we both personally disfavor the headband look, we would probably be quick to embrace it if an excellent player for our favorite team were doing marvelous things while sporting it. As I recall, he said something like, "Yeah, but I imagine that if a player for our team were dunking all over the place while wearing a headband, we probably wouldn't mind the look." When I envisioned that scenario, I realized that he was right.

I've realized it again with the emergence of Brandon Philips for the Reds this year. When he performs so well, as he has thus far this season, his nonconforming hat style doesn't seem to matter.

I do not like the look of a sideways hat on a baseball player, and I probably never will. I now know, however, that a player can still be an excellent one even if he displays that style.

AND THIS ONE BELONGS TO THE REDS--NOT!

Once again, the Cincinnati Reds lost a heartbreaker this evening. This time, it was the Atlanta Braves who did us in. As has so often been the case recently, it looked as if the Reds were going to win throughout much of the game. Aaron Harang had a masterful outing for the Reds against long-time pitching ace John Smoltz of the Braves but, in the end, it wasn't to be. The Reds ended up losing in Atlanta tonight, 4-1.

This has been an interesting year to be a Reds fan. After years of frustration, the Reds have appeared to turn something of a corner this year. They have been doggedly pursuing the lead in the NL Central, incessantly nipping at the heels of the divison-leading St. Louis Cardinals. At one time, they were even tied for the lead in the division. Unfortunately, every time it looks as if the situation is ripe for the Reds to take control of the division, they stumble. I remain hopeful, however, that the situation will change. The Reds appear to have the firepower to remain in the pennant race for the long haul this year, and their fans are cautiously optimistic that that will be the case.

Offensively, the Reds have a potent aresenal at the disposal of manager Jerry Narron. No matter how far behind they get, they never seem to be out of it due to the always-ready-to explode bats of Adam Dunn, Ken Griffey, Jr., Austin Kearns, et al. The bugaboo this year has been the bullpen. While the starting pitching has been sufficient, and at times brilliant, the relievers have repeatedly given up leads that the Reds have taken late into games. Bronson Arroyo has been a tremendous starting pitcher for the Reds this year, coming over from the Boston Red Sox, but even he can't be expected to pitch complete games every outing. The same goes for Aaron Harang.

Help may be on the way. The Reds recently acquired Eddie Guardado from the Seattle Mariners, and he appears to be a legitimate big league closer. In order to be successful, however, the Reds must obtain at least one good middle reliever as well.

Who will the Reds use as trade bait to obtain additional relief pitching? That is a hot topic among fans these days. Some mention Ryan Freel, because he would certainly be attractive to almost any team due to his versatility and speed. I feel, however, that he is too valuable to let go. As much as I hate to say it, I think that the Reds will have to trade one of their excellent catchers for a proven relief pitcher. Jason Larue and David Ross are both quality starting major league catchers. I feel certain that a good reliever could be obtained for one of them. Given the shaky relief pitching, the Reds can't afford to carry both of them.

Of course, it must be noted that it is great fun for the Reds to still be in the hunt at the all-star break this year. That certainly hasn't been the case in recent years. Normally by this time, frustration has set in, and I find myself eagerly anticipating football season because the Reds have long been out of contention. Not so this year, and for that I am very thankful.

Readers of my previous post will understand that I have been a Reds enthusiast since I was a wee lad. At some point in a future post, I will seek to explain why they have always been so important to me. For now, I can only tell you that I will be watching and/or listening to the Reds every day, hoping for a magical conclusion of the year to unfold.

MY PERSONAL TIME CAPSULE


At least once a week, I have dinner with my mother. Although I communicate with Mom every day, our dinners are a special highlight of my week. She and I have always been exceptionally close, and we have always seemed to share a common view of the world. I look forward to our weekly dinners as a special time to share our views on the news of the day, to discuss our common feelings, and sometimes, to reflect upon old times.

Tonight when I arrived at Mom's house, she had a special treat in store for me. She recently found an essay that I wrote when I was eight-years-old, and there it was on the table, ready for my review as I came in.

It is difficult to describe the feelings that I had as I read my thoughts and feelings expressed so long ago. The essay is largely about my sister, Christy, and the high regard that I had for her at the time. I'm pleased to say that I still feel the same way about her, and it warms my heart to know that I regarded her so fondly when we lived in the same home some thirty-seven years ago. As you read this brief essay, keep in mind that Christy celebrated her 50th birthday last year. She went on to become the mother of four beautiful children, all of whom are now adults living in Floyd County.

In the second portion of the essay, I discuss my dreams and plans for the future. It is quite amusing to read my views, and the naive way that I expressed them while I must have been a second or third-grader at Galena Elementary School.

Curiously, I chose to write the original essay in all capital letters. The following is a re-print of my essay, including all of my juvenile misspellings and punctuation errors. I hope that you enjoy it:


MY SISTER IS A VERY NICE GIRL BUT SHE HAS HER MASTAKES. AND EVERY ONE IS INTITELD TO THERE MASTAKES. AND SHE IS A VERY SMART GIRL. SHE SINGS VERY GOOD. SHE IS ALMOST FIFTEEN AND SHE HAS BROWN EYES, HER HITE IS FIVE FOOT 3 AND A HALF, SHE HAS SHORT BLACK-BROWN HAIR . SHE HAS THERE BROTHERS. TWO STEP BROTHERS AND ONE HALF BROTHER. SHE HAS NO SISTERS. AND SHE PLANS TO GET MARRIED.

SHE PLANS TO HAVE NO CHILDREN. SHE HAS HAD FOUR BOY FRIENDS IN THREE YEARS. THE FIRST THERE WAS KEVEN SHE DID'T GO WITH HIM VERY LONG. THEN SHE WENT STEDY WITH "T." SHE WENT WITH HIM THREE MUNTHS, THEN THERE WAS PAT SHE WENT STEDY WITH HIM FIVE MONTHS AND A HALF. NOW SHE IS GOING WITH DICK.

WHEN SHE GETS BIGGER SHE PLANS TO TAKE A TRIP AROUND THE WORLD. SHE PLANS TO TRY TO COME MISS U.S.A. AND SINCE SHE IS SO BEAUTFUL SHE WILL PROPOBABLEE MAKE IT. I DONT THINK NO ONE IS MORE BEAUTFULL THAN MY SISTER. NOT EVEN MY GIRLFREIND.

SHE LIVES ON BORDEN ROAD IN CASE YOU WANT TO KNOW. AND SHE GO'S TO FLOIED CENTERL HIGH SCHOOL AND I BET SHE IS THE MOST BEAUTFULL GIRL THAT GO'S THERE. AND THE SMARTST TO. SHE LOOKS BEAUTFULL BOTH WAYS, WITH SHORT HAIR, OR LONG HAIR. SHE WOLD STILL LOOK BEAUTFULL IF SHE GREW A MUSTASH, AND A BEARD, AND LONG SIDE BURNS, AND WORE COOKIE GLASSES. AND THAT IS CHRIS HALL.

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WHEN I GET BIGGER I AM GOING TO DATE TO SEE WHAT KIND OF GIRL I LIKE . THEN WHEN I GET BIGGER THAN THAT I WILL GET MARRED. MEN USULUIE MARRIE THIER WIFES FOR TWO RESIONS. THEY LOVE THEM, AND THE WIFE REMINDS THE MAN OF HIS MOTHER.

AND IF MY WIFE IS LIKE MY MOTHER I'LL NEVER GET TO BE AN ASTORNOT. I HOPE TO HAVE THERE CHILDREN. IF I AM NOT AN ASTORNOT I PLAN TO BE A LAUAR.

IF I GET MARRIED AND GET A DEVORSE I WILL NEVER MARRIE AGEN. I THINK IF I'M NOT GOOD ENOUGH FOR ONE WOMAN I'M NOT GOOD ENOUGH FOR ANY. ALTHO SOME WEMON ARE A LITTLE CHOOSY. BUT I DO PLAN TO MARRY A WOMAN I LOVE.

WHEN I GET A HOUSE AND IF I GET DEVORST I WILL TAKE UP BASEBALL AND I WILL PLAY AS HARD AS I CAN AND IF I AM PLAYING FOR THE REDS I PLAN TO WORK MY WAY UP. THEN WHEN I GET FOURTY AND I GET OUT OF BASEBALL I PLAN TO BE A SALESMAN. THEN WHEN I RETIER I PLAN TO LIVE WITH MY MOTHER AND FATHER. THEN I WILL READ MANY, MANY BOOKS, THEN AFTER READING MANY, MANY BOOKS I PLAN TO RITE MANY MANY MANY BOOKS.



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Those were my thoughts and plans as expressed when I was eight-years-old. To a large extent, my views have not changed. Fortunately, although I am now over forty, I have not yet found it necessary to retire and to move in with my mother or father. While it is true that I never became an astronaut or a salesman, I am, in fact, now a lawyer. And while I never played for the Reds, I do still think that my sister is beautiful. And I still think that she's a pretty good singer too.