The Face With A Golf Club

In a published opinion dated September 28, 2006, the Court of Appeal clarified that the "prudent standard duty of care" governs defendants' potential liability for injuries occurring in a middle school golf class and not the "limited duty of care" espoused in the cases of Kahn v. East Side Union High School District (2003) and Knight v. Jewett (1992) 3 Cal. 4th 296 as defendant Long Beach Unified School District contends.
This ruling is a significant victory for plaintiff Jane Hemady, a 12 year-old student of Filipino descent, who was struck in the face with a golf club by another student during a mandatory seventh grade physical education curriculum class on October 9, 2000. She sustained a fracture to her mandible which left a two-inch scar requiring costly reconstructive surgery, loss of her lower front teeth necessitating dental implants and bone grafts. Without financial resources, Jane goes through her teenage years without any reconstructive surgery or dental and bone implants done.

The negligence action Jane Hemady vs. Long Beach Unified School District, Case No. B184274, was tried before a Norwalk jury by counsel for Jane, Edna Wenning, a Pasadena-based attorney, in November 2002 before Judge Thomas McKnew who disallowed plaintiff's sole expert testimony at trial holding that plaintiff's expert failed to meet the "Kelly/Frye" standard which was simply wrong. Plaintiff tried the case with no standard of care expert and the trial ended in a judgment for the defendants. Based upon the trial court's wholesale exclusion of her expert testimony, there was no basis upon which the jury could conclude that defendant's conduct fell below the standard of care. The jury had little choice but to find for defendants having no expert to controvert the testimony of defendant Feely and its expert.

Division Three, however, reversed the judgment on appeal ruling in an unpublished opinion that Jane's right to a fair trial was prejudiced when Judge McKnew excluded plaintiff's sole standard of care expert.

Plaintiff moved to disqualify Judge McKnew and the case was reassigned to Judge Tracy Moreno in San Pedro Court who then ruled in favor of defendants Long Beach Unified School District and Bryan Feely, et. al. on a summary judgment motion on the standard of care issue (March 24, 2005) holding that Kahn vs. East Side Unified School District's limited duty of care was the rule and not the exception regarding defendant's potential liability for injuries occurring in school curricular activities such as mandatory physical education class.

The golf class was comprised of 54 students separated into 11 groups. Instructor Feely explained the whistle commands and signal system for when to hit the practice wiffle balls and when to rotate positions. The other students were to stand and wait in a designated and marked area 10 feet behind the students hitting the wiffle balls.

Although Feely testified that his practice was to blow a whistle to indicate when to hit the balls, when to retrieve the balls, and when the next student in line was to take a turn hitting, plaintiff declared that Feely did not follow this practice. Jane said that the class was unorganized and uncontrolled, and Feely's instructions were confusing. At times students were left to their own devices to decide when it was time to hit and when it was time to change positions. At some point, the student in front of Jane appeared to be finished. The student was looking around and not doing anything. Jane then stepped forward to place a ball on the grass. Without warning, the student in front of Jane swung her club back and hit Jane in the mouth. Jane stated that Feely had not given the whistle command for the person in front of her to hit the ball. Jane also stated that Feely did not give the whistle command when to change positions. At the time Jane was hit, Feely was at one end of the field talking to students.

The Court of Appeal ruled that being hit in the head by a golf club swung by another golfer is not an inherent risk in the game of golf, especially in physical education golf taught to a group of seventh graders. Thus, the application of the prudent person standard of care in this case will not require a fundamental alteration of the game of golf. Historically, under California law, the prudent person standard of care has determined the liability of schools district and their employees for injuries to students during regular school hours. The California Supreme Court applied a prudent standard of care to determine whether a school district or its employees were liable for injuries to a student which occurred during school hours. There is no indication in Knight or Kahn that the Supreme Court intended to overrule or disapprove of this long line of precedent cases, contrary to the trial court's ruling and defendants' contention.

This is the second time this case has been before the Court of Appeal. Plaintiff's counsel is assisted by appellate counsel, Alexander W. Kirkpatrick, an AV rated Martindale-Hubbell litigation attorney. The case was filed on October 31, 2001. Over six years have elapsed since the injury and Jane has not had any reconstructive surgery, bone graft, or dental implants done to her face. Jane's injuries remain unaddressed. This presents an issue of the good faith of the insurance companies for the school district. Under California law, insurance companies have the duty to act in good faith in processing claims such as Jane's.

Meanwhile, Jane's quest for her day in court continues.