*1 the evi- consistent none is dence.3 supports the the record evidence Since patent office determination Leventhal, Judge, dissented. appel- denial of court,

the district claims must be lants’

Affirmed. Infant, by BUTLER, Booker T.

Ronald Friend, Butler, and Next his Father T. Ap- Individually, Butler, Booker T. pellants COLUMBIA, Appellee.

DISTRICT OF

No. 22221. Appeals Court of

United States Circuit. District April

Argued 20, 1969. June

Decided Rehearing for Denied

Petition Aug. 15, 1969. Bolotin, Washington, Mr. I. Irwin D. C., Philip with whom Messrs. Lesser J. Washington, Herz, C.,

and Gerald D. were brief, appellants. Sutton, Corpora- David P. Asst. tion Counsel for the District Colum- bia, with whom Mr. Charles T. Dun- can, Corporation Counsel, Mr. B. Hubert Pair, Principal Corporation Asst. Coun- sel, Barton, and Mr. Richard W. Asst. Corporation Counsel, brief, appellee. Coe, App.D.C. 195,197, 3. Abbott 109 F.2d *2 permanent sight Before in Senior Circuit eye. loss of Prettyman, Burger Judge, and Cir- It was shown that small metallic Leventhal, Judges. part cuit equipment of the used in the classroom, and one witness testified that pieces noticed a few of such PRETTYMAN, Judge: Senior Circuit lying general on the floor in the area plaintiffs in a appellants were Our where Ronald had fallen. against Court in the District action civil A from classroom another close theAt the District of Columbia. and, printing appar- came into the judge a ver- directed case the trial their realizing ently the seriousness of the not defendant-appellee. This the dict for nudged injury, Ronald with his foot and grounds. on alternative verdict was get up. told him to minutes Several later Elgin1 Relying in the on test established (no possibly more than ten and as few as judge the adduced held that evidence the Weir, five), printing the class teach- alleged negligent act was showed that the er, came into the room. Ronald was discretionary clearly matter” “a office, parents taken to nurse’s the by au- determined the school summoned, in due course he and, therefore, against the suit thorities Hospital was taken D. to C. gov- General District of was barred treatment. Alternatively immunity. ernmental the judge failed to O’Neill, held the pediatric Dr. ophthal- John present upon adequate which a mologist, only expert called witness jury reasonably although “could determine that plaintiffs, that, teachers allocation available neither he nor other doctors who negligent was a on the act.” We affirm treated Ronald could determine what the latter, ground not object alternate and do reach damage, was that had caused the the other contention. generally speaking sharper the ob- ject the less force was to cause very simple. The facts are On the injury. such an alleged negligent act, T. Ronald Butler, appellant, the minor a sev- plaintiffs’ on case rested grade enth student the Woodson their contention that school author High Junior En route School. to negligent ities were printing class, lunch, he en- negli of this classroom and countered a classmate who warned him gence proximate was the cause of Ron boys already that the in the classroom in- injury.2 argument ald’s rested tended to scare him as he entered. He (1) print bits of evidence: that the two steps was no more than three inside the ing physically present teacher was not to object classroom when an “was supervise the students when the class * * * * * * pointed sharp (2) tending convened and piece felt like a of metal” struck him prin show that both Mr. and the Weir eye, causing pain resulting left cipal prior knowledge that “horse- Elgin Columbia, v. District of 119 U.S. eluded when the witness was unable to App.D.C. 116, 337 F.2d approximate the dates or times when prior these acts occurred. Plaintiffs-appellants also make evi- two arguments As to the latter of these we dentiary arguments appeal. The first prejudice, purposes find no since for concerns the trial court’s refusal to allow judge the directed verdict the trial as- give testimony Ronald to as to what Mr. prior knowledge part sumed Weir said or did as he entered the room. the officials-defendan ts. And as to the objection On from defense counsel ruling first contention we find this be evidence was excluded as irrelevant. judge’s within the ambit of the trial dis- objections second of these relates admissibility cretion as to of evidence. trial court’s refusal to allow a fellow Post, States, testify See et student al. v. United as to student behavior prior U.S.App.D.C. 189, 193-194, classroom on occasions when 407 F.2d the teacher was absent. This was ex- 323-324 judge’s Appellants stress the trial in this occurred

play” and sumption been com- not “there had the teacher classroom horseplay by plaints previous students present.3 teach- the absence the classroom that the teacher showed The evidence support er.”5 This factor does argument par- start of this present upon common it. It is based *3 he had class, been because ticular knowledge susceptible judicial of notice su- duty or cafeteria hall signed as a to boys indulge may in horse- that small play by plan a established pervisor. Under paperclip, snap a a rubber- —shoot super- general principal, was who band, pencil or a teacher throw —when functions, each school of internal visor tardy' is or The turns his her back.6 or designated dur- duties teacher possibility of such an occurrence had plan was ing period. This the lunch anticipated by the school author- positions designed place in teachers to Knowing ities here if involved. that needed. was most where assigned duty, teacher or was cafeteria hundred stu- There some were twelve if, patrol that of a not near corridor and, school, in an effort to dents in the during his own classroom the lunch order, safety provide for maximum break, might physically present he not be deployed in various the teachers were in that classroom the of the start places dur- their own classrooms outside period, rules had various ing periods certain students principal The had been established. generally outside the classrooms. were given the students instructions on the periods One of these the lunch break. designed day first of school that evidence that Plaintiffs offered no govern to of their conduct in the absence assigned performing his Weir was not by a teacher. were buttressed These but, carry question to on the by specific fourteen rules established showing negligence on their burden of apply specifically Mr. Weir to to the con- point,4 rely on the fact printing class students. of his duct present in teacher was not the classroom. printed to distributed These were they negli- In essence it contend that was They directed each class member. students, upon entering gent for the not to school authorities in the the room assigned particular have a to teacher teacher, down, work sit absence of to containing pupils classroom fourteen type, projects, on their not throw teacher, while this same the exercise Thus, faced further instructions.7 await discretion, principal’s super- children, knowledge vising part may of an area that have thirteen-year-old boys, especially will pupils. contained a thousand injury day following Now, time, ap- appeal 3. to the first on the pellant Butler makes reference son. The elder to the teacher’s up dangerous principal he had them that failure- to lock these metal- told pieces complaints of students lic as further of present negligence. theory, in the Weir was This or the alterna- while Mr. by principal theory This was denied tive the students should not room. have been allowed in the room in at trial. absence of their teacher were not raised Education, N.Y. 300 6. Oilman Board any appears trial. No evidence rehearing (1949), 306, 474 90 N.E.2d ' theory except the teacher’s failure to be 662, denied, 927 93 N.E.2d N.Y. 301 present when class convened. (1950); Education v. Board of Lawes 302, City York, 266 16 N.Y.2d did not call Mr. Weir. of New (1965) ; explanation present 364, No 213 N.E.2d 667 this is N.Y.S.2d 1, Fitzsimmons, papers any attempt Colo. 384 before us. 153 Nor was Carrol Annot., (1963); A.L.R. made to show cf. that Mr. Weir was un- P.2d 81 necessarily late for his class. 2d City assumption of Education 7. Diamond v. Board based on York, father, who, along N.Y.S. 12 Misc.2d Ronald’s with his of New wife, principal visited the of the school 2d 703 at, kick, push pupil safety well-being fellow throw hit or of numbers of immediately present, people” if a is not pre- and refers a number using supervisory per- Elgin rulings. the available sonnel, the authorities balanced the need case, it once the as I see Plaintiff’s supervise for a teacher to several hun- ignored, may immunity question stand is milling dred students about the corridors point firmly if this were an against and the cafeteria need against private his evi- action school supervise fourteen students in a certain Taking jury. go dence suffices to to the period classroom for a short of time. must, favorably plain- it, most as we tiff, he showed that was a vocational it problem unlike that is not instruction room where governmental opera relating to other be, present at the well-being involving safety or tions start of the and he was struck streets, people; such are of numbers *4 piece by an- of movable thrown removal, play sidewalks, sewers, snow boy. other The teacher school were problem grounds, many others. The rough-housing on notice the that negligence is under such conditions of boys do done throw and had so length Booth,8 discussed some at past. the One student testified Urow,9 Elgin,10 and similar cases.11 We injury Mr. Weir arrived after Ronald’s repeat. not In case need the now before he anybody tried to find if was out say us the do not there was throwing type. principal’s the Indeed defective, plan, plan or the was no that notice, by own reflected this being plan or followed. that the was regulation reference to the that instruct- They say simply the that boys type. ed the throw is a It absent from the classroom at the criti jury question whether this kind for- of affair, they say cal moment in this enough mal instruction is to show due negligence. neg Liability that was negative liability. care and ligence allega is not such established tions or It seems to me the absence evidenee4 of teacher Affirmed. class, the start of with a room in- volving hazard, prima this made a facie case, subject LEVENTHAL, Judge explanation by prin- (dis- the cipal senting) or other : officer school that agent its was unavailable at time that my opinion ruling In the of the court overriding due to school needs. scope reflects a narrow view of of lia- bility majority says opinion The of the District of in tort the teacher contrary assigned doctrine, absent is because he had that to sound and is duty shrinking duty. hall unwarranted cafeteria from the permissible liberating Elgin necessary approach but not set forth in infer- v. Columbia, ence. The school U.S.App.D.C. District of did not the meet bur- 116, showing agent den of (1964). where 337 F.2d 152 its was. principal, The questioning by on counsel majority opinion, which assert- District, say was unable to what edly governmental rests not on immu- duty assigned he preceding had nity, ground but that there nowas period to the teacher. negligence, evidence of concludes that problem essentially “gov- is of One student testified the teacher had operations involving ernmental duty day. hall premise On that Columbia, 8. v. Booth Borough District 100 U.S. Freehold, Amelchanko v. App.D.C. 32, (1956). 241 F.2d 437 (1964); 42 N.J. 201 A.2d 726 Huff Northampton County Board of Edu Columbia, 9. Urow v. District of 114 U.S. cation, 259 N.C. 130 S.E.2d App.D.C. 350, 316 F.2d 351 Supra note 1. gence, uphold essentially I that would feel that it reflects is evidence there special protection negligence finding teacher’s accorded de- duty government fendant it to fulfill because is a failure agency injury. principal employees public whose were on in close respectfully each teacher business. I wanted the school from dissent room, opinion hence he was his touch with the court. class, or if on hall inbe duty, “by class, or on out- to be of his time the class side

arrived.”

Furthermore, school if the even on cafeteria the teacher showed certainly rele- though factor, duty, my view liability, not in would toas vant America, UNITED STATES of jury. from the the case take suffice to Appellee, why the remain question would For the start not on time JACKSON,Appellant. Andrew B. period. lunch No. 22678. arrived There was hit, hence Appeals after Ronald was Court of minutes United States *5 began. If District of Columbia Circuit. after the 12 minutes good busi- reason in school May there was ness, involving of discretion exercise an officials, why by policy

elsewhere, burden to it was the school’s agent and what its

show where doing.

Finally, if the teacher was even signed require him would say shop I must late

to be why a confession- such that I do see away from take and-avoidance would negli- finding jury possibility gence explanation an in the absence of

why printing could attractive way. up in some have closed ordinary classroom, but an was not

shop paraphernalia sorts mobile material.

and attractive Taking throwable the notice Burger, Judge, into account dissented. obviously dangerous type exercising before, juror, occurred experience with school

common sense limitations, find could situations prudent reasonably

that a up type, administrator lock would

classroom, provide or a least substitute upperclass stu- such as degree

dent, known to lessen the danger when the teacher was unable present.

be Though terms is cast in decision negli- insufficiency