Maxwell Ex Rel. Maxwell v. Santa Fe Public Schools , 87 N.M. 383 ( 1975 )

OPINION

HENDLEY, Judge.

Calvin Maxwell sued the Santa Fe Public Schools, the Board of Education of the Santa Fe Public Schools, Douglas Smith (a teacher), and Phillip Bebo (the superintendent) on behalf of his son, Charles Maxwell, whose eye was severely injured by an exploding flask during an experiment in general science class. The jury was instructed to find in favor of defendant Bebo. The jury found in favor of defendant Smith but against the defendants Santa Fe Public Schools and its Board of Education who appeal alleging two points for reversal: (1) that it was error to admit into evidence a State Board of Education regulation providing that eye protective devices be worn when participating in or observing activities that may be hazardous to the eyes and, (2) that a new trial is required because the jury’s verdict in favor of defendant Smith but against appellants was fatally inconsistent.

The Regulation

Appellants claim the admission into evidence of the following regulation to be error:

“All persons shall be instructed to wear appropriate industrial quality eye protective devices at all times while participating in or observing in the immediate area of any of the below stated activities :

“B. Chemical or combined chemical-physical laboratories involving caustic, explosive or other hazardous chemicals or hot liquids, solids or injurious radiations or other eye hazards not enumerated.”

The factual setting in which the injury occurred was the performance of a cloud formation experiment during a junior high school science class. Following defendant Smith’s lecture on cloud formation, he performed the experiment himself and then allowed the students to perform it. The students would drop a lighted match into a quantity of water contained in the base of a pyrex flask. The match would extinguish, creating visible smoke in the flask. At this point a two-holed stopper containing two hoses would be placed in the neck of the flask. One student would pump air into one hose by means of a bicycle pump. A second student would pinch the second hose, i. e. the release valve, thereby blocking the exit of air from the flask and permitting pressure to build up within. Once the smoke from the match disappeared, the pumping would cease, the release valve would be opened and small vapor clouds would form in the flask.

Appellants contend that this experiment involved none of the enumerated hazards nor was the general science classroom a chemical or combined chemical-physical laboratory and that as a result, the regulation was irrelevant and should have been excluded. We need not decide appellants’ point since even if the regulation’s admission was error, it was harmless error.

The jury was instructed as follows with respect to the regulation:

“If you find from the evidence that the Defendants conducted themselves in violation of this State Board of Education Regulation, you are instructed that such conduct on the part of the Santa Fe Public Schools, the Board of Education of Santa Fe Public Schools, and Douglas Smith constituted negligence as a matter of law.”

The evidence was uncontradicted that the students were not wearing eye protective devices at the time of the explosion and similarly uncontradicted was the fact that no such eye protective devices were even available in the Santa Fe Public Schools. As the jury found in favor of defendant Smith, Under the above instruction, it could only have concluded that the regulation did not apply in this situation. The admission of the regulation being harmless, appellants’ first point does not require a reversal. R.Evid. 103(a), § 20-4-103(a), N.M. S.A.1953 (Repl.Vol. 4, 1970, Supp.1973).

Inconsistent Verdicts

Appellants contend that the finding of liability against themselves while not against defendant Smith is fatally inconsistent. Appellants premise their argument on the facts that (1) plaintiff based his case against all defendants on the same theories of liability, (2) the jury was instructed to apply the same standard of care to all defendants and (3) the evidence against all defendants was identical. By this it is meant that no additional evidence was adduced to prove appellants’ negligence than was adduced to prove defendant Smith’s negligence.

However, defendants fail to grasp the import of Instruction No. 2 stating plaintiff’s theories of liability to the jury. It should first be noted that no objection was made by any defendant to this Instruction which reads in part:

“Charles Maxwell and his father claim that Charles sustained damages and that the proximate cause thereof was one or more of the following claimed acts of negligence ;

“1. The teacher, Mr. Douglas Smith, was negligent in using a glass container not designed for use in an experiment such as was carried on here and that the use of this glass container created a hazard for Charles Maxwell and the other students in the class. [Emphasis added].

“5. Defendants Sante Fe Public Schools, Board of Education of Santa Fe Public Schools, and the members of the Board of Education of the Santa Fe Schools were negligent in failing to properly govern, supervise and regulate the activities of officers, agents and employees of the School District so as to avoid injury to Charles Maxwell’s eye, in that:

“a. They failed to establish regulations and procedures to assure that proper equipment was available for science experiments of this type.” [Emphasis added].

The above instruction effectively stated a different theory of liability against appellants than against defendant Smith. The theory of liability against appellants was broader than against defendant Smith. The jury could only find Smith liable for using improper equipment for the experiment if they found that the glass container was improper. The jury could find appellants liable if they found that any of the equipment was improper. The appellants candidly admit that there is evidence to support a finding of negligence in failing to use a pressure gauge in this type of experiment. The testimony was uncontradicted that no pressure gauge was in use on the day that Charles was injured aside from the visible disappearance of the smoke in the flask. As the jury could have found that the absence of a precise pressure gauge was negligence and that its absence proximately caused Charles’ injury, we cannot say that the verdict was inconsistent. Under the instructions given, acquiesced in by the appellants, the jury was not able to find defendant Smith liable for the non-use of an exact pressure gauge.

The verdicts in favor of defendant Smith and against appellants being consistent, the cause is affirmed.

It is so ordered.

LOPEZ, J., concurs. SUTIN, J., Specially Concurring.