NO. 88-411

IN THE SUPREME COURTOF THE STATE OF MONTANA
1989

CONNIE S. ROLLINS, Plaintiff andAppellant,-vsSYLVIAM. BLAIR,d/b/a CHEERLEADERS POI4 POM CLINIC;NCA INVESTMENTS, INC., f/k/a NATIONAL CHEERLEADERSASSOCIATION; and FERGUS COUNTY HIGH SCHOOL; SCHOOL DISTRICT #I,
Defendants and Respondents.

APPEAL FROM: District Court of the Eighteenth JudicialDistrict, Inand for the County ofGallatin, The Honorable JosephGary,Judqe presidinq.

COTJNSEL OF RECORD:

ForAppellant:
Jack E. Sands,Rillinqs,Montana

For Respondent:

DonM. Hayes; Berg, Stokes,Tollefsen & Hayes, Bozeman,Montana (Blair) Robert 

### J. Emmons; Emmons & Coder,Great Falls, Montana (Fergus County High) CharlesR. Cashmore;Crowlev T~aw Firm, ~illings,

d L Montana (NCA) CL L'.J ..

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# -i -4 I ' Submitted onRriefs: Nov. I?, 1988 Decided: January 10,1989

- ED SMITH Cl.erkMr. 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 fordefendants, NCA Investments and Sylvia Blair, for injuries sustained while attending a privately-sponsored summer cheerleading clinic atMontana StateUniversity inBozeman,Montana. The issues onappeal 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 ofplaintiff's proposed instructionswas proper. Connie Rollins was a varsity cheerleader for Ferqus County High School during the summer of 1985when 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 Ferguspracticed for over twomonths prior to the camp and had alsodemonstrated 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. Itwas not until the nextday that the injurywas too severe to continue at the camp.

### Rollinswas familiar with the "homecheer"and had been practicing the cheerwith the other cheerleaders that summer. She was also aware that injury could occur from an off-the-ground position. Shehad injured an ankle in a fall from the pyramid prior to the cheerleading camp. Another cheerleaderhad brokenher ankl-ealso froma fall. Rollins sued the school districtas theparty 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 sponsorof 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 abus for transportation. At trial,the jury found that the remaining defendants had not acted negligently. Rollins seeks a reversalofboth the summary judgmentand the jury verdict. The first issue is whether the DistrictCourt 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 thatwe allow these issues tobe addressedata jury trial-. We havemade it clear that: The standard of review is whether the District Courtproperly held there isno 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 isused 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'sinjuries is to find that Fergushad 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 ofa 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 sentby Sylvia Rlair and NCA to the school.

### On the motion for summary judgment, Fergus showed that it merely provided a bus for the girls1transportation. 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 shewas chosenby other studentsof 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. Itwould be improper tohold that Fergushad 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 tohave addressed the issue of a school's duty to studentsinvolved in extracurricular activities. InRubtinchinskyv. StateUniversity ofNew 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. TheNew York courtheld 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 nexushas notbeen established to find that Fergushad

aduty. Appellant contends that Fergus is liable to Rollins through its agent, LaVonne Simonfy. However, Simonfyls participationwas too limited to owe a duty as a supervisor and was not Ferguslsagent. Shewas 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),176Mont. 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. Shehad final say as to the girls' cheersand critiqued their outfits but did notparticipate in the creation or developmentof 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 shepresent when appellantwas injured. Fergus was under no duty to Rollins through Simonfy. Simonfywas 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 cheerleadingcamp. 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 cheerleadersonher squad and the role that Simonfyplayed 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 causeplaintiff'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

(Instruction14): 

### 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 partyproposing the instruction thereby prejudicing him. 

# . ..A 

### party is not prejudiced by the failure to give an offered instruction where the subject matter is adequately coveredby 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 FurnaceCo. v. Rounds (1961), 139Mont. 75, 360

We hold that the instruction adopted by the courtwas adequate in directing the jury that the defendants could not place theblame 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 Fergushad beendismissed from the action, the jury could have assumed that the court on summary judgmenthad not dismissed the remaining defendants because they were responsible for appellant's injuries. 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 tobe found itwould bewith 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. Thevery 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 itwas Rollinsherself. [Ilnstructions must be considered in their entirety,and to determinewhether instructions were properly given or refused this Court will read them in connection with other instructionsgiven and consider them in the light of the evidence introduced.

Fox v. Fifth West, Inc. (1969),153 Mont. 95, 101, 454 ~.2d 612, 615; Brownv. North American Mfg. Co. (19781,176Mont. 98, 114, 576 P.2d 711, 721. We hold that the instructions given to the jurywere sufficient. We findno reversibleerror on thepart of the District Court. Affirmed.We concur:



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