                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Jamal Redman,                                                                      FILED
Plaintiff Below, Petitioner                                                    September 27, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0090 (Grant County 11-C-63)                                         OF WEST VIRGINIA



South Branch Career and Technical Center,
Defendant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Jamal Redman, by counsel Harley O. Staggers, Jr., appeals the Circuit Court of
Grant County’s order denying his motion for new trial following a defense verdict in petitioner’s
negligence suit against Respondent South Branch Career and Technical Center. Respondent, by
counsel Charles R. Bailey and Kelly C. Morgan, filed a response. Petitioner filed a reply.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       This appeal stems from petitioner’s civil action in which petitioner alleged that
respondent failed to supervise its students, resulting in petitioner being struck and injured by a
fellow student on December 8, 2009. Petitioner was a seventeen-year-old high school student
enrolled in respondent’s building and construction trade program in Petersburg, West Virginia.1
The case proceeded to a three-day jury trial and ended with a defense verdict for respondent.

        The evidence at trial is summarized as follows: On December 8, 2009, during a class
break when the instructor was not present, petitioner asked repeated sexually explicit and vulgar
questions to another student, Dale Alt, regarding Mr. Alt’s relationship with another student’s
sister. This other student, Roger Redman, was present with petitioner and Mr. Alt during the
break. Specifically, petitioner asked Mr. Alt if he was “getting any [expletive]” from Roger
Redman’s sister. In addition to Roger Redman and Dale Alt, four students witnessed and testified
to petitioner’s conduct. These witnesses confirmed that Roger Redman twice warned petitioner
to stop talking about his sister, but that petitioner continued to ask Mr. Alt the same question. At
that point, after two warnings, Roger Redman struck petitioner in the face.


       1
       Respondent is multi-county vocational and technical school serving Grant, Pendleton,
and Hardy Counties.
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        The evidence revealed that respondent’s teacher allowed the students to leave the
classroom to go to an area of vending machines, called the “Snack Shack,” located about thirty
feet from the classroom door. The teacher generally allowed students, mostly high school juniors
and seniors, to return to the classroom at their leisure. The teacher was not present in the
classroom when the incident occurred because he was locking the Snack Shack. The evidence
showed that once Roger Redman struck petitioner, the teacher was summoned and responded to
the scene within seven seconds.

        At trial, respondent argued that it had no actual or constructive notice that Roger Redman
was violent or that petitioner was in danger. In other words, respondent disputed that the teacher
could have reasonably anticipated the altercation between petitioner and Roger Redman.
Additionally, respondent contended that its action or inaction did not proximately cause
petitioner’s injuries, but that petitioner’s provocation of Roger Redman and Roger Redman
striking petitioner constituted superseding, intervening acts that barred petitioner’s negligence
claim against respondent. The jury returned a verdict for respondent after approximately twenty-
five minutes of deliberation.

        Petitioner filed a motion for new trial raising five alleged errors, three of which are raised
in this appeal: (1) the court’s refusal to give petitioner’s proposed instruction number 1 and
giving respondent’s proposed instructions 13 and 14; (2) the court’s exclusion of evidence
regarding Roger Redman breaking a window at Moorefield High School prior to the altercation;
and (3) the court’s sanction of petitioner’s counsel as a result of his unprofessional behavior
surrounding a deposition of Dr. Bolton, respondent’s Rule 30(b)(7) representative. The circuit
court denied petitioner’s motion for new trial by order on December 6, 2012. From this order,
petitioner appeals to this Court.

        On appeal, petitioner’s first assignment of error is that the circuit court refused to give an
instruction that petitioner claims (1) was a correct statement of the law; (2) was not covered by
the charge actually given; and (3) incorporated petitioner’s theory that schools have a duty to
supervise children and to anticipate that children will act like children. The court struck the
following language from petitioner’s proposed instruction number 1:

       In considering what is reasonable care you should note that children wherever
       they go must be expected to act upon childish instincts and impulses; and others
       who are chargeable with the duty of care and caution toward them, must calculate
       upon this and take precaution accordingly. [citation omitted]. Therefore, if you
       find by a preponderance of the evidence that no teacher was supervising the
       students in the classroom when Jamal Redman was attacked and injured, you may
       find that Defendant is liable for the injuries which resulted and award Mr.
       Redman the damages he has shown resulted from his injuries.

        Petitioner argues that this language is taken from Moore by and through Knight v. Wood
County Board of Education, 200 W.Va. 247, 489 S.E.2d 1 (1997), and is consistent with the
principle of parens patrae in West Virginia Code § 18A-5-1(a), which establishes that teachers
stand in the place of parents while children are at school. Petitioner’s theory at trial was that
respondent’s supervision of the classroom was not reasonable because the teacher was required

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to be outside of the building (opening and closing the Snack Shack) while the students were left
alone.

        Respondent’s instruction number 13 addressed the foreseeability that petitioner would be
injured. The following language was included at the end of the instruction: “If you find that
Defendant could not foresee the student’s conduct which caused the injury, then there can be no
duty owed to Plaintiff by Defendant and you should find in favor of Defendant.” Petitioner
challenges inclusion of this sentence, arguing that Moore does not require foreseeability.
Respondent’s instruction number 14 read, in part, that “[r]easonable supervision does not require
continuous and constant supervision nor does it require control of all students’ movements and
activities.” Petitioner argues that Moore and West Virginia Code § 18A-5-1(a) require control of
all students from the time they reach school until they get home. Petitioner contends that the
striking of his language from instruction 1 and the inclusion of the above-quoted language
constitutes reversible error.

       In Syllabus Point 6 of Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97,
459 S.E.2d 374 (1995), this Court held:

        The formulation of jury instructions is within the broad discretion of a circuit
        court, and a circuit court's giving of an instruction is reviewed under an abuse of
        discretion standard. A verdict should not be disturbed based on the formulation of
        the language of the jury instructions so long as the instructions given as a whole
        are accurate and fair to both parties.

        In Syllabus Point 4 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), this Court
held:

        A trial court's instructions to the jury must be a correct statement of the law and
        supported by the evidence. Jury instructions are reviewed by determining whether
        the charge, reviewed as a whole, sufficiently instructed the jury so they
        understood the issues involved and were not mislead by the law. A jury
        instruction cannot be dissected on appeal; instead, the entire instruction is looked
        at when determining its accuracy. A trial court, therefore, has broad discretion in
        formulating its charge to the jury, so long as the charge accurately reflects the
        law. Deference is given to a trial court's discretion concerning the specific
        wording of the instruction, and the precise extent and character of any specific
        instruction will be reviewed only for an abuse of discretion.

        Regarding petitioner’s instruction number 1, respondent does not assert that the “childish
impulses” language is an incorrect statement of the law. Rather, the basis for respondent’s
objection and the court’s refusal to include the language was that the facts of the present case
were distinguishable from Moore, which involved thirteen and fourteen-year-olds. In this case,
Roger Redman was seventeen and petitioner nearly seventeen. Petitioner’s provocation of Roger
Redman was neither childish nor impulsive. It was sexually vulgar and intended to incite Roger
Redman. Accordingly, we agree with the circuit court’s analysis and do not find the striking of
petitioner’s proposed language to be reversible error under the fact of this case.

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        As to the court giving respondent’s instruction 13 and 14, we find that the instructions
were based on case law, albeit from other states, that was more factually relevant to the present
case. As respondent argued, West Virginia’s negligent supervision cases primarily involve
students fourteen years old and younger. This case does not involve a typical school setting with
young students. Rather, respondent is a vocational school where students go voluntarily from
their home high school to be trained to be skilled workers. The record showed that respondent’s
teachers set forth at the beginning of school a higher expectation of maturity from the students,
which the students acknowledged. We do not find that the court erred in its formulating its
instructions.

        Second, and similar to his first assignment of error, petitioner argues that the court’s
instruction also erroneously required petitioner to prove prior bad conduct by Roger Redman.
Respondent’s instruction 13, which was given to the jury, included the following statement:

       Actual or constructive notice to the school of prior similar conduct is generally
       required because school personnel cannot reasonably be expected to be guarded
       against all of the sudden, spontaneous acts that take place among students on a
       daily basis. An injury caused by the impulsive, unanticipated acts of a fellow
       student ordinarily will not give rise to a finding of negligence, absent proof of
       prior conduct that would have put a reasonable on notice to protect against the
       injury-causing act.

         Petitioner contends that Roger Redman punched a window at Moorefield High School
earlier in the day prior to arriving at respondent’s facility, but the court precluded introduction of
this evidence at trial. Stated another way, petitioner argues that the instruction required proof of
evidence that he was not allowed to introduce. We disagree. The record demonstrates that the
court’s basis for excluding evidence that Roger Redman broke the window was that respondent
had no knowledge of it. Moorefield High School did not notify respondent of any such incident.
Moreover, petitioner conducted no discovery of anyone at Moorefield High School to determine
whether they notified respondent of this incident prior to Roger Redman being transported to
respondent’s facility. Therefore, we do not find that the court erred by including the above
language from respondent’s instruction 13.

        In his final assignment of error, petitioner argues that the circuit court abused its
discretion by sanctioning petitioner’s counsel for unprofessional conduct surrounding a
deposition of respondent’s Rule 30(b)(7) representative. As this assignment of error bears no
impact on the denial of petitioner’s motion for new trial, we decline to address it in this decision.

       For the foregoing reasons, we affirm.


                                                                                           Affirmed.




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ISSUED: September 27, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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