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STEVENS v. DES MOINES SCHOOL DIST.2/22/1995
ng statement of a general rule, it has no applicability under the circumstances of this case. Here the precise hazard to be guarded against is criminal activity.
Id. at 302, 796 P.2d at 511 (quoting Restatement (Second) of Torts ยง 449).
Several annotations discuss the general area of school liability to students, including the question of proximate cause. See, e.g., Christopher Bello, Annotation, Personal Liability of Public School Teacher in Negligence Action for Personal Injury or Death of Student, 34 A.L.R.4th 228 (1984); Allan E. Korpela, Annotation, Tort Liability of Public Schools and Institutions of Higher Learning for Injuries Resulting from Lack or Insufficiency of Supervision, 38 A.L.R.3d 830 (1971); Allan E. Korpela, Annotation, Tort Liability of Public Schools and Institutions of Higher Learning for Injuries Caused by Acts of Fellow Students, 36 A.L.R.3d 330 (1971).
The defendant argues that the superseding cause instruction was proper in any event because it would have been impossible for the school authorities to intervene in time to avoid the assault. This begs the question. The negligence alleged was the school's allowing an atmosphere to exist in which such confrontation could occur. An expert witness for the plaintiff stated the obvious: the mere presence of a staff person is usually sufficient to prevent violence. As one case noted,
hildren have a known proclivity to act impulsively without thought of the possibilities of danger. It is precisely this lack of mature judgment which makes supervision so vital. The mere presence of the hand of authority and discipline normally is effective to curb this youthful exuberance and to protect the children against their own folly.
Titus, 49 N.J. at 75, 228 A.2d at 70 (quoting Ohman v. Board of Educ., 300 N.Y. 306, 314, 90 N.E.2d 474, 478 (1949), reh'g denied, 301 N.Y. 662, 93 N.E.2d 927 (1950)).
II. The Hearsay Issue.
The defendant claimed that Stevens intentionally struck his own head in a restroom at the school about one week after the assault. A teacher was allowed to testify, over a hearsay objection, that two students came to her, yelling "Mrs. Campbell, Mrs. Campbell, Danny Stevens is in the boys' bathroom banging his head against the wall." The plaintiff alleges it was error to admit this evidence.
Our review of the district court's rulings on the admissibility of evidence is for abuse of discretion. Milks v. Iowa Oto-Head & Neck Specialists, P.C., 519 N.W.2d 801, 805 (Iowa 1994).
The trial court admitted the hearsay statement under the excited utterance exception to the hearsay rule. This rule, Iowa R.Evid. 803(2), excepts
statement relating to a startling event or a condition made while the declarant was under the stress of excitement caused by the event or conditions.
We have said that an excited utterance is " statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." State v. Rawlings, 402 N.W.2d 406, 409 (Iowa 1987); State v. Murphy, 462 N.W.2d 715, 717 (Iowa App. 1990).
The teacher testified that the boys, at the time the statement was made, were "very excited." We believe the predicate for allowing the hearsay statement was sufficient under these circumstances, and the court was within its discretion in allowing it. We find no error in this ruling.
We reverse and remand for a new trial on all issues.
REVERSED AND REMANDED. [528 NW2d Page 122]
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