NO. 88-411 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

CONNIE S. ROLLINS, 

Plaintiff and Appellant, 

-vsSYLVIA 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~aw Firm, ~illings, 

d L Montana (NCA) CL 

L'.J . . 

. -. - i 

-4 I ' 

Submitted on Rriefs: Nov. I?, 1988 

Decided: January 10, 1989 

- ED SMITH 

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 cheerleading 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 continued 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 responsible for its students during school, during extracurricular 

activities and as principal of its agent, LaVonne Simonfy, 

the cheerleading advisor, for negligent supervision. Plaintiff also sued NCA Investments, a private entity, and the 

sponsor of the cheerleading camp, Sylvia M. Blair, for negligence. 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 forward 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 resulting 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, 392 

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 Sylvia 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 advertising 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 supervision 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 extracurricular 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. Southwestern 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 appellant'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 witnesses 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 instructions 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 141 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 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 District Court to refuse an offered instruction unless such refusal affects 

the substantial rights of the party 

proposing the instruction thereby prejudicing him. . . . A party is not prejudiced 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. Instruction 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 

in juries. 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 ~.2d 

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: 

(i a;; 

Justices 

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