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LANNING v. ANDERSON3/22/1996
REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish by an order dated June 11, 1996, pursuant to Rule 7.04 (1995 Kan. Ct. R. Annot. 40).
This is a personal injury action arising from a discus hitting Marcus J. Lanning during track practice. Jeff Anderson and the Board of Education of Unified School District No. 447 (School District) appeal from the district court's refusal to grant a directed verdict on the grounds there was not sufficient evidence upon which a reasonable jury could base a finding of gross and wanton negligence as required for liability under the recreational use exception of the Kansas Tort Claims Act (KTCA), K.S.A.
75-6101 et seq. See K.S.A. 1995 Supp. 75-6104(o). Coach Anderson and the School District also appeal from the district court's rulings on exclusion of evidence, refusal to give an instruction, juror/attorney misconduct, and a confusing verdict form. Lanning cross-appeals the application of the recreational use exception.
On May 12, 1993, Lanning was struck in the head by a discus. The accident occurred during a track practice at Cherryvale Middle School. The practice was supervised by two coaches, Jeff Anderson and Chuck Stockton.
Lanning was a member of the relay team that had practiced on the day of the accident. After running laps at the end of practice, Lanning and the other members of the relay team walked toward the school, taking a sidewalk that went through the middle of the playground.
The discus throwers were practice throwing from home plate of the baseball field toward the remainder of the playground. The sidewalk that Lanning and the other members of the relay team took leads to the end of the basketball court nearest the baseball field. Lanning was hit approximately 80-90 feet from where the discus was thrown.
Randy Hugo, the student who threw the discus that hit Lanning, used the "spin" technique when throwing. With the spin technique, the thrower is facing away from where the discus is going prior to the time of release. While others were throwing, the remaining discus throwers were to keep a watch out to ensure that people were not within range of the throw.
There was conflicting testimony over whether the discus participants were instructed to throw the discus or just practice technique on the day of the accident.
After Hugo released the discus, he and the other discus throwers noticed the group on the sidewalk. The discus throwers yelled "duck" or "heads up." The yelling alerted the group of relay runners on the sidewalk; however, Lanning was hit on the head by the discus.
Lanning had been a gifted athlete. As a consequence of the accident, Lanning suffered various cognitive deficits, and his neurological
surgeon recommended that he never again play football or other heavy contact sports.
At the time of Lanning's injury, Coach Stockton was working with the girls' relay team. When the boys' relay team finished their practice, Coach Anderson told them to run two laps and go to the locker room. Coach Anderson did not direct the relay team to take any particular sidewalk or route to the locker room. Coach Anderson then went to help Coach Stockton with the other runners. Coach Anderson did not see the students walking down the middle sidewalk prior to the accident.
The middle school track practice was normally held at the high school. The high school track is bigger than the middle school playground. Coach Anderson decided to have track practice at the middle school playground instead of the high school track because the high school track was m
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