## Facts

- David Wayne Brahatcek, a 14-year-old ninth-grade student at Millard Central Junior High School, was injured during a mandatory physical-education golf unit conducted indoors in the gym because of bad weather.
- Golf instruction began on Monday, April 1, 1974, when students were taught grip, stance, swing, etiquette, and safety, but David was absent that day and first attended the unit on Wednesday, April 3, 1974, the day of the accident.
- Two classes were combined in the gym: David’s class of 34 boys and a girls’ class of 23 students, with two instructors assigned to supervise (a male and a female teacher).
- One experienced instructor was absent that day and was replaced by a student teacher; evidence showed the student teacher had not been properly instructed on how to run indoor golf safely.
- The school principal had issued written safety instructions for indoor golf classes; the trial court found the class was not conducted in line with those instructions and that supervision was inadequate for the risks of students swinging clubs in a crowded indoor space.
- Fellow student Mark Kreie was trying to show David how to swing a golf club. David, who had no prior golf experience and may not have been warned by teachers about the danger of a swinging club, stood about 10 feet away while Kreie took two practice swings.
- Without Kreie’s knowledge, David moved closer before Kreie took a full swing, and Kreie struck David with the club on the backswing.
- David was struck in the left occipital area of the skull, was rendered unconscious, and died two days later without regaining consciousness.
- David’s mother, Darlene Brahatcek, as administratrix of his estate, filed a wrongful-death action against the Millard School District. After a bench trial, the court awarded $3,570.06 in special damages, $50,000 in general damages, and costs.
- The school district appealed, challenging the sufficiency of the evidence, the rejection of contributory negligence, the rejection of intervening cause, and the amount of general damages.

## Issues

1. Whether the evidence was sufficient to support findings that the school district negligently supervised the indoor golf class and that this negligence was a proximate cause of David’s death.
2. Whether David was contributorily negligent by moving into the swing area of a classmate with a golf club.
3. Whether the classmate’s act of swinging the club was an efficient intervening cause that broke the chain of causation.
4. Whether the $50,000 general-damages award in the wrongful-death judgment was excessive.

## Decision

- The Nebraska Supreme Court affirmed the judgment for the plaintiff.
- The court held that, viewing the evidence in the light most favorable to the plaintiff, there was sufficient evidence of negligent supervision, including failure to conduct the class in line with the principal’s written safety directions and insufficient attention to students during an activity that posed obvious risks in close quarters.
- The court held the trial judge could reasonably find that the school district’s lack of proper supervision was a proximate cause of the fatal injury.
- The court upheld the finding that David was not contributorily negligent, considering his age, lack of golf experience, absence from the first day of instruction, and the evidence that warnings and supervision were inadequate.
- The court rejected the argument that Kreie’s swing was an efficient intervening cause, concluding that a student’s careless or mistaken swing was a foreseeable result of inadequate supervision during indoor golf instruction.
- The court concluded the general-damages award was supported by the evidence and was not excessive.

## Legal Principles

- On review of evidentiary sufficiency, the appellate court considers the evidence in the light most favorable to the prevailing party, resolves conflicts in that party’s favor, and gives that party the benefit of reasonable inferences.
- In a negligence action, the plaintiff must prove a negligent act or omission and that it was a proximate cause (or a cause that proximately contributed) to the injury.
- Negligence is evaluated under the circumstances of the particular case and asks whether an ordinarily prudent person would have acted differently in similar circumstances.
- Where liability is based on lack of instructor supervision, the lack of supervision must be shown to be a proximate cause of the injury.
- Inattention to the duty of care in a situation reasonably regarded as dangerous is evidence of negligence even if the same act or omission would not always cause injury.
- The scope of the duty to exercise care is defined by risks reasonably perceived; duty is tied to the risk reasonably within the range of apprehension.
- Proximate cause is a cause that, in a natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred.
- An intervening negligent act does not break causation if it was reasonably foreseeable as a consequence of the original negligence; the law does not require prediction of the exact way the injury occurs.

## Conclusion

The Nebraska Supreme Court held that a school district may be liable for wrongful death when teachers fail to use reasonable care in supervising a crowded indoor physical-education golf class and do not conduct the class in line with written safety instructions; because the risk of a student being struck by another student’s swing was foreseeable under those conditions, the classmate’s swing did not cut off causation, and the trial court’s damages award was affirmed.


Brahatcek v. Millard School District, 273 N.W.2d 680 (1979)