No. 2453 Philadelphia, 1980, Appeal from Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1467 November Term, 1974.
Leon A. Mankowski, Philadelphia, for appellant.
Norman R. Segal, Philadelphia, for appellees.
Wieand, Cirillo and Popovich, JJ. Cirillo, J., files a dissenting opinion.
[ 308 Pa. Super. Page 556]
Richard Simonetti, a fifth grade student, returned to the classroom from recess and was struck in the left eye by a pencil which had been propelled from the hand of a classmate when he tripped. The teacher, an employee of the School District of Philadelphia, was outside the classroom, standing at the door, when Simonetti was injured. There she was engaged in monitoring the return of her students
[ 308 Pa. Super. Page 557]
from recess and talking with another teacher. The student who dropped or threw the pencil and two other students had been required to remain in the classroom during recess as punishment for misbehavior at breakfast. They had been talking with the teacher during the recess period and were instructed to take their seats when the teacher stepped outside the classroom to supervise the return of the students from recess.
In an action against the School District, it was contended by Simonetti that the teacher had been negligent in failing to provide adequate classroom supervision. The case was tried without a jury, and damages of $15,000 were awarded to the minor plaintiff and his mother. After the School District's exceptions had been dismissed*fn1 and judgment entered on the verdict, this appeal followed.
"'Appellate review of the record of a trial before a judge without a jury is limited to a determination of whether the findings of fact of the court below are supported by competent evidence and whether or not the lower court committed error of law.'" Rubinstein v. J.E. Kunkle Co., 244 Pa. Super. 474, 479, 368 A.2d 819, 822 (1976), quoting E.I. duPont de Nemours & Co., Inc. v. Berm Studios, Inc., 211 Pa. Super. 352, 354, 236 A.2d 555, 556 (1967). In reviewing the sufficiency of the evidence we are required to view the evidence in the light most favorable to the verdict winners. Id., 244 Pa. Superior Ct. at 480, 368 A.2d at 822.
In Bottorf v. Waltz, 245 Pa. Super. 139, 369 A.2d 332 (1976), a case in which a student had been burned when melted wax was spilled on his back, this Court defined the standard of care required of a teacher by quoting from 38 A.L.R.3d 830, 843-846, in part, as follows:
[ 308 Pa. Super. Page 558]
What constitutes proper supervision depends largely upon the circumstances attending the event. Thus, the fact that supervisory personnel present when an accident occurs could conceivably have prevented its occurrence does not necessarily render the school agency liable if the supervisory ...