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BRAD BERMAN v. PHILADELPHIA BOARD EDUCATION (02/04/83)

filed: February 4, 1983.

BRAD BERMAN, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, LEONARD BERMAN AND SHEILA BERMAN AND LEONARD BERMAN AND SHEILA BERMAN, IN THEIR OWN RIGHT
v.
PHILADELPHIA BOARD OF EDUCATION, APPELLANT



No. 2149 PHILADELPHIA, 1981, Appeal from the Judgment of the Court of Common Pleas, of Philadelphia County, No. 3019 November Term, 1976.

COUNSEL

Leon A. Mankowski, Philadelphia, for appellant.

Eugene A. Spector, Philadelphia, for appellees.

Hester, Cirillo and Johnson, JJ.

Author: Hester

[ 310 Pa. Super. Page 156]

In April, 1976, Brad Berman was an eleven year old, fifth grade student, attending Sharswood Elementary School in

[ 310 Pa. Super. Page 157]

Philadelphia. In response to a flyer distributed to each classroom announcing an after-school floor hockey league, Brad enrolled in the program and was assigned to play for the Capitals, one of the eight league teams. All games were played in the school's gymnasium.

Daniel Caputo, a physical education instructor at Sharswood, began the program during the 1974-75 school year. He instructed the student players, at the beginning of each season, that slapshots, raising hockey sticks above the waist, checking and foul language were prohibited. During the 1975-76 school year, which included the date of April 21, 1976 at issue here, the students were equipped with hockey sticks composed of wooden shafts and plastic blades; however, no helmets, face masks, mouth guards, shin guards or gloves were provided.

On April 21, 1976, Brad Berman was facing an opposing player moving toward goal. The opposing player made a backhanded shot and his follow through motion caused the stick blade to strike Brad's mouth. Three maxillary and two mandibular teeth were severed resulting in severe pain and extensive dental treatment.

As a result of the injuries, Brad Berman, a minor, by his parents and natural guardians, Leonard and Sheila Berman, and Leonard and Sheila Berman in their own individual capacities, filed a Complaint in Trespass against appellant, the Philadelphia Board of Education, in the Court of Common Pleas of Philadelphia County. A non-jury trial was conducted on December 12, 1980; however, a verdict was not then returned because the lower court reopened the case for the purpose of admitting life expectancy tables on Brad's life. On April 14, 1981, a verdict was finally entered for Brad Berman in the amount of $83,190.00 and for Leonard and Sheila Berman in the amount of $1,810.00. The appellant's exceptions and amended exceptions to the order of April 14, 1981 were denied, and an Order for Judgment in favor of the appellees in the amounts stated above was entered on August 4, 1981. This appeal followed.

[ 310 Pa. Super. Page 158]

It is the appellant's first contention that there was insufficient evidence to support a finding of negligence. The expert testimony of Cosmo R. Castaldi, a pediatric dentist, and member of the Safety and Protective Equipment Committee of the Amateur Hockey Association of the United States, testified on cross examination that no regulation existed in April, 1976, requiring any kind of mouth guards for participants of amateur ice or floor hockey; consequently, the appellant reasons, no standard of care was established upon which a finding of negligence could stand. Without a regulation to the contrary, Daniel Caputo, as the appellant's agent, was not required to furnish mouth guards. His general instructions, officiating ...


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