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Searles v. Trustees (College)
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1997 ME 128
Docket:	Fra-96-327
Argued:	December 3, 1996
Decided:	June 6, 1997

Panel:  WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.



PAUL SEARLES v. TRUSTEES OF ST. JOSEPH'S COLLEGE, et al.


LIPEZ, J.

	[¶1]  Paul Searles appeals from the summary judgment entered for the
defendants in the Superior Court (Franklin County, Marden, J.).  Searles
alleged that while playing basketball for St. Joseph's College the negligence
of the defendants caused him permanent injuries and that they breached a
contract to pay the medical expenses related to his injuries.  Because we
conclude that genuine issues of material fact exist on Searles's negligence
claims, we vacate the judgment in part.
I
	[¶2]  Paul Searles entered St. Joseph's College as a freshman in 1988,
having been awarded an athletic scholarship.  Searles alleges that while
playing basketball he began experiencing pain in his knees during the fall
semester of 1988.  In January 1989 Searles was diagnosed with patellar
tendinitis.  He continued to play basketball for the remainder of the school
year, and he returned to play for the 1989-1990 season.  He stopped playing
in 1990 and had surgery on his knees in 1990 and again in 1991.
	[¶3]  In 1994 Searles filed the present action against St. Joseph's
College, Rick Simonds, the school's basketball coach, and Peter Wheeler,
the athletic trainer, alleging that "[d]espite medical advice and information
suggesting that the Plaintiff should not be playing basketball, Defendant
Simonds insisted that Paul Searles play.  [As a] result, Paul Searles's knees
became permanently impaired."  Searles sought damages for his injuries and
reimbursement for related medical expenses, alleging the existence of an
oral contract requiring the school to pay his medical bills.  Searles also
alleged intentional infliction of emotional distress and sought punitive
damages.  The court granted the defendants' motion for a summary
judgment on all counts of Searles's complaint.  Searles does not challenge
the judgment on Counts III and IV,{1} but he contends on appeal that the
court erred by granting a summary judgment on the negligence and contract
counts of his complaint.
	[¶4]  We review the entry of a summary judgment for errors of law,
viewing the evidence in a light most favorable to the party against whom the
summary judgment was entered.  Lynch v. Ouellette, 670 A.2d 948, 949 (Me.
1996).  We undertake an independent review of the record to determine if
there is a genuine issue of material fact and if the moving party was entitled
to a judgment as a matter of law.  First Citizens Bank v. M.R. Doody, Inc., 669
A.2d 743, 744 (Me. 1995).  "A summary judgment is an extreme remedy and
should be granted in favor of a defendant only when the facts before the
court so conclusively preclude recovery by the plaintiff that a judgment in
favor of the defendant is the only possible result as a matter of law."  Binette
v. Dyer Library Assoc. 688 A.2d 898, 901 (Me. 1996).
II The Negligence Claim against Simonds
	[¶5]  The existence of a duty is a question of law.  Joy v. E.M.M.C., 529
A.2d 1364, 1365 (Me. 1987).  "Duty involves the question of 'whether the
defendant is under any obligation for the benefit of the particular plaintiff.' 
When a court imposes a duty in a negligence case, 'the duty is always the
same-to conform to the legal standard of reasonable conduct in the light of
the apparent risk.'"  Trusiani v. Cumberland & York Distribs., Inc., 538 A.2d
258, 261 (Me. 1988) (quoting W.P. Keeton, Prosser and Keeton on Torts
§ 53 at 359 (5th ed. 1984)).  We have previously stated that a college has a
legal duty to exercise reasonable care towards its students.  Isaacson v.
Husson College, 297 A.2d 98, 103 (Me. 1972).  See also Schultz v. Gould
Academy, 332 A.2d 368, 370 (Me. 1975) (duty owed by private boarding
school); Milliken v. City of Lewiston, 580 A.2d 151, 152 (Me. 1990) (duty
owed by public junior high school).  That duty encompasses the duty of
college coaches and athletic trainers to exercise reasonable care for the
health and safety of student athletes.  Dudley v. William Penn College, 219
N.W.2d 484, 486 (Iowa 1974); Tan v. Goddard, 17 Cal. Rptr. 2d 89, 92-3
(Cal. Ct. App. 1993).  See generally Cathy Jones, College Athletes:  Illness or
Injury and the Decision to Return to Play, 40 Buff. L. Rev. 113 (1992).  
	[¶6] By granting the motion for a summary judgment on the
negligence claim against Simonds and St. Joseph's, set forth in Counts II
and V of Searles's complaint, the court failed to recognize Simonds's duty to
exercise reasonable care for the health and safety of Searles.  Whether
Simonds breached that duty when Searles played basketball is a question of
fact for the jury to consider.  "The invocation of the summary judgment
procedure does not permit the court to decide an issue of fact, but only to
determine whether a genuine question of fact exists.  The court cannot
decide an issue of fact no matter how improbable seem the opposing party's
chances of prevailing at trial."  Tallwood Land & Dev. Co. v. Botka, 352 A.2d
753, 755 (Me. 1976).  
	[¶7]  In his opposition to the defendants' motion for a summary
judgment, Searles was "obligated to produce specific controverting facts
exposing the existence of a genuine issue."  Cloutier, Barrett, Cloutier &
Conley, P.A. v. Wax, 604 A.2d 42, 44 (Me. 1992).  Searles alleged that
Simonds "knew or should have known Paul Searles should not have been
playing basketball in his condition, and should not have played plaintiff." 
Searles's response to the summary judgment motion included citations to
the deposition testimony of Peter Wheeler, St. Joseph's trainer, who stated
that he recognized the nature of Searles's problem, was concerned that
Searles's continued play would result in greater injury to his knee, and that
he discussed Searles's medical problem with Coach Simonds.  Searles also
alleged that on more than one occasion he advised Simonds that his knees
were bothering him, but Simonds "continued to play Plaintiff in games
despite knowledge of Plaintiff's condition and general knee soreness as early
as January, 1989."  The record before the court contains sufficient evidence
to raise an issue of material fact as to Simonds's breach of his duty to
exercise reasonable care for the health and safety of Searles.
	[¶8] To prevail on his negligence claim, Searles must prove that
Simonds's breach of his duty to Searles "proximately caused an injury to the
plaintiff."  Rowe v. Bennett, 514 A.2d 802, 804 (Me. 1986).  Proximate cause
is "that cause which, in natural and continuous sequence, unbroken by an
efficient intervening cause, produces the injury, and without which the
result would not have occurred."  Wing v. Morse, 300 A.2d 491, 495 (Me.
1973) (citation omitted).  Proximate cause is a question of fact for the jury. 
Klingerman v. SOL Corp. of Maine, 505 A.2d 474, 478 (Me. 1986).  
	[¶9]  Searles presented medical testimony from Dr. John Herzog that
his condition was likely due to "history overuse" and that "the more you
play, the longer it's going to hurt and you may have a chronic problem
develop."{2}  Searles presented evidence that Simonds was aware of his knee
injury and continued to play him in games.  Searles further alleges that
Simonds was so intent on keeping Searles in games that he allowed him to
skip basketball practices to preserve his knees for games.  Searles himself
testified as to the painful injuries he suffered playing basketball.  The
medical testimony and Searles's own account of his condition create a
genuine issue of material fact as to whether he suffered permanent injury as
a result of playing basketball at St. Joseph's. 
The Negligence Claim against Wheeler
	[¶10]  The court concluded that Searles had presented "no evidence
of a standard of care required of athletic trainers."  As an athletic trainer,
Wheeler has the duty to conform to the standard of care required of an
ordinary careful trainer.  Williams v. Iverness Corp., 664 A.2d 1244, 1246
(Me. 1995).  Athletic trainers are licensed by the State, 32 M.R.S.A.
§§ 14351-14362 (Supp. 1996){3}, and establishing the standard of care for
these licensed professionals in their treatment of athletes ordinarily
requires expert testimony.  Forbes v. Osteopathic Hosp. of Maine, Inc., 552
A.2d 16, 17 (Me. 1988) ("ordinarily, a plaintiff can discharge his burden of
proof for a claim of negligent medical care only by expert medical testimony
establishing the appropriate standard of medical care . . .").  See also Seven
Tree Manor, Inc. v. Kallberg, 1997 ME 10, ¶ 7, 688 A.2d 916 (professional
engineer); Jim Mitchell and Jed Davis, P.A., v. Jackson, 627 A.2d 1014,
1017 (Me. 1993) (attorneys).  We have long recognized that expert
testimony may not be necessary "where the negligence and harmful results
are sufficiently obvious as to lie within common knowledge . . . ."  Cyr v.
Giesen, 150 Me. 248, 252, 108 A.2d 316, 318 (1954).  Unlike the standard
of reasonable care for the health and safety of student athletes applicable to a
basketball coach, which can be ascertained by a lay jury, the standard of care
applicable to an athletic trainer who treats physical injuries or who must
make judgments about the severity of a physical condition does not
ordinarily lend itself to common knowledge.  See, e.g., Gillespie v. Southern
Utah State College, 669 P.2d 861, 864 (Utah 1983).   	
	[¶11]  The gravamen of Searles's allegations against Wheeler, set forth
in Counts VI and VII of his complaint, involves more than a claim that
Wheeler negligently conducted a course of treatment of Searles's injuries
that contributed to a worsening of his condition, or that he failed to
appreciate the seriousness of Searles's condition.  Searles claims that
Wheeler "failed to advise Coach Simonds that Paul Searles should not be
playing basketball and the condition of Paul Searles's knees was such that
continued play before complete healing will likely cause permanent injury." 
The deposition of Wheeler demonstrates an awareness of the acuteness of
Searles's knee problems.  Simonds states in his deposition that he was never
advised by Wheeler that Searles could be permanently impaired by continued
play, and he does not recall the trainer suggesting that Searles should not
play.  He also asserts that the trainer decided whether an injured player
could play basketball, not the coach.  To the extent that Searles's claim of
negligence against Wheeler involves a failure by Wheeler to communicate to
Simonds the nature and extent of Searles's knee problems, or a failure by
Wheeler to advise Searles that he should not play basketball in light of
Wheeler's knowledge of Searles's medical condition, Searles did not have to
provide expert testimony about the standard of care applicable to an athletic
trainer.{4}  Jurors could apply their common knowledge in determining
whether such failures, if they occurred, constituted a breach by Wheeler of
his duty to exercise reasonable care for the health and safety of Searles.{5}
Contract for payment of medical expenses
	[¶12]  In Count I of his complaint, Searles alleged that St. Joseph's,
through Simonds and Wheeler, orally agreed to pay for the medical costs
associated with his basketball injuries.  He summarizes his contract claim as
follows:  "Paul Searles alleged that he entered into a contract with St.
Joseph's [C]ollege, through its agents, under which the college promised to
pay Paul's medical bills if he continued to play for the basketball team." 
Searles asserted in his response to an interrogatory that "Coach Simonds
told my parents and me that the School's insurance would pay for all of the
medical bills relating to my knee problems.  He said that to us on January
27, 1990, after a game against the University of Maine at Farmington, in
Farmington, Maine."{6}  Searles's mother testified in her deposition that
Simonds told her husband after a basketball game that the school would "get
him fixed-we'll take him to the doctor's and will have him-have his knees
fixed up."  
	[¶13]  "To establish a legally binding agreement the parties must have
mutually assented to be bound by all its material terms; the assent must be
manifested in the contract, either expressly or impliedly; and the contract
must be sufficiently definite to enable the court to determine its exact
meaning and fix exactly the legal liabilities of the parties."  VanVoorhees v.
Dodge, 679 A.2d 1077, 1080 (Me. 1996).  The record does not contain
evidence of the existence of a contract.  Assuming as we must that Simonds
did state to Searles's parents that the school would pay Searles's medical
bills, such a statement is insufficient to constitute an offer to enter into a
contract.

In order to be legally operative and to create a power of
acceptance, it is necessary that the offer shall contain all the
terms of the contract to be made.  It is not enough for one party
to promise to do something.  This party must also say what the
other party must do in exchange.

1 Arthur Corbin, Corbin on Contracts § 1.11 (1993).  For a contract to be
enforceable, "the parties thereto must have a distinct and common intention
which is communicated by each party to the other."  17A Am. Jur. 2d
Contracts § 27 (1991).  There is no evidence as to the terms of the "offer"
purportedly made by Simonds and no evidence that Searles and Simonds
had an agreement that Searles had to continue to play basketball in exchange
for the payment of his medical expenses.  Simonds's comment to Searles's
parents cannot be construed as anything more than a statement of intent
given as reassurance, and "an intention to do an act is not an offer to do
it . . . a mere expression of intention or general willingness to do
something . . . does not amount to an offer."  17A Am. Jur. 2d Contracts § 43
(1991).  The court properly entered a judgment in favor of St. Joseph's on
the contract claim.  Estate of Althenn, 609 A.2d at 714.
	The entry is:
Judgment for defendants on Counts I, III
and IV of plaintiff's amended complaint
affirmed.  Judgment for defendants on
Counts II, V, VI and VII vacated. 
Remanded to the Superior Court for
further proceedings consistent with the
opinion herein.
 
Attorneys for plaintiff: Paul F. Macri, Esq. (orally) Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961 Ronald J. Cullenberg P O Box 70 Farmington, ME 04938 Attorneys for defendant: Stephen C. Whiting, Esq. (orally) Douglas, Whiting, Denham & Rodgers P O Box 7108 Portland, ME 04112-7108
FOOTNOTES******************************** {1} Searles's amended complaint has seven counts: breach of contract (Count I); negligence by Simonds and the liability of St. Joseph's on the basis of respondeat superior (Counts II and V); intentional infliction of emotional distress (Count III); punitive damages (Count IV); negligence by Wheeler and the responsibility of St. Joseph's on the basis of respondeat superior (Counts VI and VII). {2} Searles also presented a letter from Dr. Philip Anson, who summarized the office records of Searles's visits to two different doctors at Anson's practice group, Orthopaedic Associates of Portland. The defendants contend that Searles could not use the doctor's letter in his opposition to their motion for a summary judgment because the letter was inadmissible hearsay. We agree. Evidence set forth in an affidavit in opposition to a motion for a summary judgment must be admissible evidence.