Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1966, No. 4886, in case of Gary Alexander Greathouse, a minor, by his parent and natural guardian, Elnora Greathouse et al. v. Philip Horowitz et al.
Norman Shigon, for appellants.
Ernest Ray White, with him Liebert, Harvey, Herting, Short and Lavin, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones, Mr. Justice Eagen, and Mr. Justice Pomeroy concur in the result. Mr. Justice Roberts concurs in the result on the ground that the exclusive control doctrine is inapplicable here, the institution not being a party defendant. Mr. Justice Cohen dissents.
The principal issue in this case is whether the lower Court erred in refusing to apply the doctrine of exclusive control to shift the burden of proof in this trespass action involving personal injuries allegedly sustained by a child, Gary Greathouse, while attending a child care class in a public school.
The complaint filed in this case by Gary Alexander Greathouse and his mother alleges that Gary, who was three years old at the time, was attending a class in "child care and development" which was being conducted at the Stoddart-Fleisher Junior High School of the Philadelphia Public School System. This class, which was part of a home economics course offered to the regular students at the school, was intended to give experimental knowledge to 7th, 8th and 9th grade girls in the care and needs of young children from 2 1/2 to 4 1/2 years of age. There were approximately thirteen young children in the child care and development class at this time, with eight girl students enrolled in a home economics class.
Defendant Georgia Thompson was the teacher of the home economics course and defendant Philip Horowitz was the principal of the Stoddart-Fleisher Junior High School. Plaintiffs' theory of recovery is that the doctrine of exclusive control applies and that the defendants failed to provide adequate supervision of the children
participating in the child care class and consequently are liable for plaintiff's injury.
The testimony reveals that at about 11 A.M. on March 3, 1965, Gary (the minor plaintiff) had returned to his classroom after playing in a designated play area located on the roof of the school. Both the classroom and the entrance to the outdoor play area were located on the 6th floor of the school building. Upon his return, defendant Georgia Thompson observed Gary crying. In response to Mrs. Thompson's question as to why he was crying, Gary said that his head hurt; whereupon in order to relieve this hurt, Mrs. Thompson applied a cold compress. Gary was then put to bed for a nap and later given his lunch, which was part of the routine for all these young children. After his lunch, Gary was sent to the school nurse. Gary's mother called for him shortly before 3 P.M., and noticed that Gary had a patch over his right eye. She then took him to the Wills Eye Hospital, where he was kept for treatment for a severe injury to his eye.
Plaintiffs then brought this suit for damages to Gary's eye. The case was tried before a Judge sitting without a jury. After hearing all the evidence, the Judge (1) concluded that the doctrine of exclusive control did not apply, and (2) concluded that plaintiffs had failed to prove by a fair preponderance of the evidence their right to recover damages, and (3) entered a verdict for defendants. Plaintiffs filed a ...