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Simms v. School District No. 1

March 26, 1973

SIMMS, APPELLANT,
v.
SCHOOL DISTRICT NO. 1, MULTNOMAH COUNTY ET AL, RESPONDENTS



Appeal from Circuit Court, Multnomah County. Robert E. Jones, Judge.

Keith Burns, Portland, argued the cause for appellant. With him on the briefs was Jane Edwards, Portland.

Edward H. Warren, Portland, argued the cause for respondent School District No. 1. David C. Landis, Portland, argued the cause for respondent Weitz. With them on the brief were Gearin, Landis & Aebi and Hershiser, Mitchell & Warren, Portland.

Fort, Judge. Schwab, Chief Judge, and Langtry, Judge.

Fort

The plaintiff, Richard Simms, a 14-year-old student at Sabin School in Portland, brought action for

assault and battery against the District and one of its teachers, Marvin Weitz, alleging that he was wantonly shoved into a door and glass window therein by defendant Weitz. As a result he alleged the window broke, resulting in injuries to his arm. The defendants denied the allegations and by answer affirmatively alleged that the injury occurred while plaintiff was being removed from a classroom by reasonable force, necessitated by the plaintiff's disruptive behavior therein. The plaintiff demurred to the affirmative defense. The court overruled the demurrer. The case was then tried to a jury, which returned a verdict in favor of both defendants. Plaintiff appeals, asserting errors respecting both the giving and refusal to give certain instructions to the jury, and also concerning the admission of a written statement made by the defendant Weitz to the school principal the day of the incident.

A brief summary of the facts is necessary to an understanding of the issues. In view of the jury's verdict, we review them in the light most favorable to the defendants.

Sabin School in the city of Portland is what is known as a "model school" and received state funds because it was in a disadvantaged area. Defendant School District No. 1 paid the teachers there $500 or $1,000, depending on their experience, more than teachers at other schools in order to encourage them to teach there. The plaintiff had a poor record as a student. His achievement level was low and he had had difficulty in keeping up with his class. He had had previous difficulties for skipping school, fighting and staying home. He had failed to complete his work assignments. As a result he had been removed from the football team.

Marvin Weitz was plaintiff's eighth grade teacher in Black History. On the day of the incident, September 30, 1970, the class had viewed some films concerning which the students were required to take notes. After viewing the films they were to write a summary using the notes they had taken.

Defendant Weitz testified:

"Richard was not doing this assignment, and he was arguing with Gwynn Peters after a game they call 'a dozen', where you insult each other's mother. I had asked him several times to be quiet. After the second or third time, he continued talking. Gwynn Peters stated to me, 'He's talking again.' At that point, he told her to, something like 'Shut up, horse face', or something like that. So, I asked him to leave the room.

"* * *

"When I asked him to leave the room, he made a general statement to his friends that, 'I don't have to do what this mother-fucker says.'

"So, I said, 'Out', and he continued sitting in his seat. So, I left my desk. I headed down the aisle toward his desk and, at this point, he stood up, but he made no move to leave. I took him by the arm to turn him around. He jumped back and he says, 'I can walk myself.' I says, 'I know you can, but you are not. Come on.' I took his arm again and he started swinging.

"At this point, I clamped his arm to his side. I had him from behind. I was heading toward the door. The door was shut. I got to the door, I shoved him and reached to grab the knob, so I could get him out in one push.

"When I released his arm, he swung it up. It went through the window. We went out into the hall. I noticed that his arm was bleeding and cut. * * *"

There was testimony also that during the time the teacher was physically ejecting Richard from the classroom he was "jumping up and down, he kicked, flaying his feet, trying to get loose."

The assignments of error relating to an instruction given*fn1 the jury on the one hand and the refusal*fn2 to give others raise basically the same question: Can a teacher use reasonable force to remove a disruptive child from a classroom? The plaintiff contends that the teacher may not. The defendants assert that he may. Plaintiff contends such an act constitutes corporal punishment,*fn3 which, he asserts, is forbidden by the Constitution, sound educational policy, statute, and

defendant School District policy. Plaintiff urges that the use of force by the teacher is permitted only in "self defense or the defense of others." (See n 2.)

The annotation at 43 ALR2d 469, 471-72 (1955), discusses at length the teacher's civil liability for administering corporal punishment to pupils. It summarizes the rule:

"It is a well-established rule of the law of torts that a teacher is immune from liability for physical punishment, reasonable in degree, administered to a pupil. The teacher is held (and in some jurisdictions is stated by statute) to stand in loco parentis, and to share the parent's right to obtain obedience to reasonable commands by force.

"But a teacher's right to use physical punishment is a limited one. His immunity from liability in damages requires that the evidence show that the punishment administered was reasonable, and such a showing requires consideration of the nature of the punishment itself, the nature of the pupil's misconduct which gave rise to the punishment, the age and physical condition of the pupil, and the teacher's motive in inflicting the punishment. * * *"

In Note, Right of a Teacher to Administer Corporal Punishment to a Student, 5 Washburn L Rev 75, 76, 78 (1965), it is stated:

"At common law the teacher had the right to administer corporal punishment to his pupils based on a delegation of ...


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