NO. 88-411
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
CONNIE S. ROLLINS,
Plaintiff and Appellant,
-vs-
SYLVIA M. BLAIR, d/b/a CHEERLEADERS POI4
POM CLINIC; NCA INVESTMENTS, INC., f/k/a
NATIONAL CHEERLEADERS ASSOCIATION; and
FERGUS COUNTY HIGH SCHOOL; SCHOOL DISTRICT # I ,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph Gary, Judqe presidinq.
COTJNSEL OF RECORD:
For Appellant:
Jack E. Sands, Rillinqs, Montana
For Respondent:
Don M. Hayes; Berg, Stokes, Tollefsen & Hayes,
Bozeman, Montana (Blair)
Robert J. Emmons; Emmons & Coder, Great Falls,
Montana (Fergus County High)
Charles R. Cashmore; Crowlev T~awFirm, ~ i l l i n g s ,
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L Montana (NCA)
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Submitted on Rriefs: Nov. I?, 1988
Decided: January 10, 1989
ED SMITH
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Cl.erk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
From a decision in the District Court of the Eighteenth
Judicial District, Gallatin County, Connie Rollins appeals
the summary judgment in favor of Fergus County High School,
District No. 1 (Fergus) and the jury verdict for defendants,
NCA Investments and Sylvia Blair, for injuries sustained
while attending a privately-sponsored summer cheerleading
clinic at Montana State University in Bozeman, Montana.
The issues on appeal are:
1. Whether the District Court properly granted the
motion of Fergus County High School, District No. 1, for
summary judgment.
2. Whether the District Court's refusal of plaintiff's
proposed instructions was proper.
Connie Rollins was a varsity cheerleader for Ferqus
County High School during the summer of 1985 when her cheer-
leading squad attended a cheerleading camp. On the eveninq
of July 15, 1985, she was practicing the "home cheer" with
the other cheerleaders from the Fergus squad during a free
period before the camp's evening activities. The "home
cheer" involves the building of a human pyramid formation.
This is a cheer that the girls from Fergus practiced for over
two months prior to the camp and had also demonstrated during
athletic activities in years past. The pyramid was not a
formation that they had learned at the cheerleading camp.
While practicing the pyramid, Rollins fell from an
off-the-ground position, injuring the lumbo-sacral area of
her spine. At the time, she did not feel any pain and con-
tinued with the night's cheerleading activities. It was not
until the next day that the injury was too severe to continue
at the camp.
Rollins was familiar with the "home cheer" and had been
practicing the cheer with the other cheerleaders that summer.
She was also aware that injury could occur from an
off-the-ground position. She had injured an ankle in a fall
from the pyramid prior to the cheerleading camp. Another
cheerleader had broken her ankl-e also from a fall.
Rollins sued the school district as the party responsi-
ble for its students during school, during extracurricular
activities and as principal of its agent, LaVonne Simonfy,
the cheerleading advisor, for negligent supervision. Plain-
tiff also sued NCA Investments, a private entity, and the
sponsor of the cheerleading camp, Sylvia M. Blair, for negli-
gence. The District Court granted summary judgment in favor
of Fergus, finding that the school district had no active
part in the summer cheerleading camp with the exception of
providing a bus for transportation. At trial, the jury found
that the remaining defendants had not acted negligently.
Rollins seeks a reversal of both the summary judgment and the
jury verdict.
The first issue is whether the District Court erred in
granting summary judgment in favor of Fergus. Appellant
makes two assertions. Appellant first contends that Fergus
played an active role in sending the cheerleaders to the
Bozeman camp. Second, Fergus sent LaVonne Simonfy to the
camp as an advisor to the girls and is liable for Simonfy's
negligence for improper supervision. Appellant urges that we
allow these issues to be addressed at a jury trial-.
We have made it clear that:
The standard of review is whether the
District Court properly held there is no
genuine issue of material fact and
therefore the moving party is entitled
to judgment as a matter of law. Rule
56 ( c ) , M.R.Civ.P.
Sevalstad v. Glaus (Mont. 1987), 737 P.2d. 1147, 1148, 44
St.Rep. 930, 932; Pipinich v. Rattershell (Mont. 1988), 759
P.2d 148, 45 St.Rep. 1237. The standard of review set for-
ward by this Court was established in Reagan v. Union Oil
Company of California (1984), 208 Mont. 1, 6, 675 P.2d 953,
956. The standard is essentially the same that is used by the
district court in reviewing the evidence under Rule 56,
M.R.Civ.P., which is that sumrnarv judgment is to he granted
where there is no genuine issue as to material fact. We see
no genuine issue here.
We uphold the District Court's summary judgment findinq
and declare that Fergus was outside the scope of requisite
care necessary to find it liable. The threshold requirement
for holding Fergus liable for appell-ant's injuries is to find
that Fergus had a duty to appellant.
It is an elementary principle of law
that before a claim for relief can he
made against a defendant for negligence,
the existence of a duty by the defendant
to the plaintiff must be shown, along
with the breach of the duty and a re-
sulting injury.
Roy v. Neibauer (Mont. 1981), 623 P.2d 555, 556, 38 St.Rep.
173, 174; Jackson v. William Dingwall Co. (19651, 145 Mont.
127, 399 P.2d 236; Kakos v. Byrum (1930), 88 Mont. 309, 3 9 2
P. 909.
Appellant asserts that Fergus owed a duty because of
its active participation in the events leading up to the
injury at the camp. For example, the cheerleaders were
selected by the students and faculty of Fergus. Money was
raised for the camp and deposited in the school district
accounts. The cheerleaders also learned of the camp through
literature sent by S y l v i a Rlair and NCA to the school.
On the motion for summary judgment, Fergus showed that
it merely provided a bus for the girls1 transportation. The
funds which were raised to send the cheerleaders to the camp
were private funds raised by the girls themselves. To hold
the school district liable for injuries to a cheerleader
simply because she was chosen by other students of the school
is insufficient to find a duty. Moreover, posters advertis-
ing the camp provided by Rlair is also insufficient to find
that Fergus owed a duty to Rollins. The cheerleading camp was
run by private parties independent of the school district.
It would be improper to hold that Fergus had a duty of super-
vision to Rollins for an extracurricular activity during the
summer months which was governed by independent parties.
New York is one of the few states to have addressed the
issue of a school's duty to students involved in extracurric-
ular activities. In Rubtinchinsky v. State University of New
York (1965), 46 Misc.2d 679, 260 N.Y.S.2d 256, a college
freshman was injured while participating an in intramural
game of "push ball" with knowledge that it was a contact
sport. The New York court held that a school does not owe a
duty to students involved in extracurricular activities.
Fergus was in no way involved in the cheerleading camp with
the exception of providing a bus for the cheerleaders. A
proper nexus has not been established to find that Fergus had
a duty.
Appellant contends that Fergus is liable to Rollins
through its agent, LaVonne Simonfy. However, Simonfyls
participation was too limited to owe a duty as a supervisor
and was not Fergusls agent. She was not under contract with
the school district during the summer months and when she
attended the camp. She used her own funds to attend the camp
rather than accept school funds to attend. Her attendance at
the camp was personal and not as an employee of Fergus.
"Under the doctrine of respondeat superior an employer is
liable for the acts of his employee only if the employee is
acting within the scope of his employment." Haker v. South-
western Railway Co. (1978), 176 Mont. 364, 372, 578 P.2d 724,
728; Hoffman v. Roehl (1921), 61 Mont. 290, 203 P. 349. As
the cheerleaders' advisor, Simonfy played a limited role in
molding the cheerleaders. She had final say as to the girls'
cheers and critiqued their outfits but did not participate in
the creation or development of the cheers. Appellant Rollins
testified that Simonfy was not experienced in cheerleading.
Simonfy attended the camp to prevent bickering among the
cheerleaders, a reoccurring problem from the previous year.
Furthermore, she was not in attendance at the meetings for
advisors at the camp, nor was she present when appellant was
injured. Fergus was under no duty to Rollins through
Simonfy. Simonfy was not an agent of Fergus.
The second issue to be addressed by this Court is
whether the District Court erred in refusing two of appel-
lant's proposed instructions. During the course of the
trial, Sylvia Blair and representatives of NCA Investments
testified that they took correct preventative measures in
running the cheerleading camp. Specifically, NCA's employees
testified that they held a meeting for all the advisors at
the beginning of the camp which admonished them of safety
proceedings, such as suggesting the use of spotters. Jeff
Miller, the head instructor at the camp, stated they did not
teach the pyramid formation and did not suggest that they
practice the cheer.
On cross-examination of the appellant, the questions
related to the experience of the appellant and the other
cheerleaders on her squad and the role that Simonfy played at
the camp. Appellant regarded the examination of EICA's wit-
nesses and cross-examination of appellant as "blame-
shiftingw--that is, the remaining defendants state that they
took all necessary precautions, implicating Fergus and
Simonfy as the liable parties, who had been dismissed from
the case.
During the testimony, appellant did not object to the
line of questioning but instead requested special instruc-
tions to admonish the jury that the defendants could not
shift the blame for liability to anyone not a party to the
action. The judge agreed tha.t there would be such
instructions.
Two of appellant's proposed instructions referring to
"blame-shifting" were denied by the judge. The appellant
asserts that instructions admitted by the court were not
sufficient . The refused proposed instructions are as
follows.
[Proposed instruction 1 4 1 More than one
person may be liable for causing an
injury. A defendant may not avoid
liability by claiming that some other
person whether or not named as a defen-
dant in this action helped caused Csicl
the injury.
Fergus County High School--through
LaVonne Simonfy--was originally liste6
as a defendant in this action, but has
been found not liable as a matter of
law. Therefore, you may not consider
the actions or inactions of Ms. Simonfy
or Fergus County High School as ha~ring
helped cause plaintiff's injury.
[Proposed instruction 24 1 You are
instructed that, as a matter of law,
1,aVonne Simonfy and Fergus County High
School had no legal obligation to nor
any supervisory responsibility for
Connie S. Rollins, the Plaintiff, while
she attended the Cheerleading Clinic.
Therefore you may not consider the
actions or inactions of LaVonne Simonfy
or Fergus County High School as having
helped cause Plaintiff's in-juries.
The District Court instead adopted proposed Instruction 14a
(Instruction 14) :
More than one person may be liable for
causing an injury. A defendant may not
avoid liability by claiming that some
other person whether or not named as a
defendant in this action helped caused
[sic] the injury.
Appellant claims that the single instruction is inadequate to
inform the iury of the dangers of shifting the blame. We
disagree.
It is not reversible error for a Dis-
trict Court to refuse an offered in-
struction unless such refusal affects
the substantial rights of the party
proposing the instruction thereby preju-
dicing him. ... A party is not preju-
diced by the failure to give an offered
instruction where the subject matter is
adequately covered by other instructions
submitted by the court to the jury.
Payne v. Sorenson (19791, 183 Mont. 323, 327-328, 599 P.2d
362, 365; Kuchan v. Harvey (1978), 179 Mont. 7, 585 p.261
1298; Holland Furnace Co. v. Rounds (1961), 139 Mont. 75, 360
We hold that the instruction adopted by the court was
adequate in directing the jury that the defendants could not
place the blame for liability on Fergus or Simonfy. Instruc-
tion 14 clearly stated that the only parties that could be
held liable were those named in the suit at the time of
trial. If the instructions that were proposed by appellant
had been adopted by the court, the effect would have been
preiudiciai to respond.ents. In stating that Fergus had been
dismissed from the action, the jury could have assumed that
the court on summary judgment had not dismissed the remaining
defendants because they were responsible for appellant's
injuries. The substantial rights of appellant were not
prejudiced.
Furthermore, the instructions in their entirety were
adequate to instruct the jury on the causes of action. It
was obvious that the other instructions stated that NCA and
Blair were the only defend-ants in the case and if liability
was to be found it would be with one of the named defendants.
For example, the first instruction stated that in this action
the plaintiff was Rollins and the defendants were NCA and
Blair. The very same instruction gave no indication that the
defendants were trying to "pass the buck" because it stated
that the defendants were denying liability and if anyone was
at fault it was Rollins herself.
[Ilnstructions must be considered in
their entirety, and to determine whether
instructions were properly given or
refused this Court will read them in
connection with other instructions given
and consider them in the light of the
evidence introduced.
Fox v. Fifth West, Inc. (1969), 153 Mont. 95, 101, 454 ~ . 2 d
612, 615; Brown v. North American Mfg. Co. (19781, 176 Mont.
98, 114, 576 P.2d 711, 721. We hold that the instructions
given to the jury were sufficient.
We find no reversible error on the part of the District
Court. Affirmed.
We concur:
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Justices
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