Expert Witness: Teaching Gymnastics On Macadam

By Tom Bowler

Gymnastics can be a high risk activity in physical education.  Some school districts have eliminated this curriculum area because of potential liability associated with it.   I was retained in 2007 as the expert witness for the plaintiff child in a physical education class involving gymnastics.

Fact Pattern:  The plaintiff was an eleven year old female enrolled in a mandatory fifth grade physical education class in a public school.  The curriculum area was gymnastics, however it was taught outdoors on macadam or what is commonly referred to as “blacktop”.    The plaintiff child was attempting to do a “donkey kick”, which is a lead-up activity to the handstand.  She was performing this stunt without the benefit of sneakers – wearing only socks on her feet.  There were no spotters to assist her with the stunt during this instance. However, spotters would sometimes assist.   The basic tumbling mat of a one inch thickness was being utilized.   The activity was being performed across the width of the mat, in lieu of from the length end.  The child came down and fractured a toe.  Additionally, this resulted in reflex sympathetic dystrophy [RSD], which is very painful and which requires treatment and therapy.

Discovery: The basic information was derived from meeting the attorney personally.  I received the complaint, answer and affirmative defenses, production requests, the school board’s information on the credentials of the teacher, plaintiff’s statement, interrogatories, the liability report from the insurance adjuster for the school district, and photographs.

The inspection of the premises did not occur during the discovery phase.  This is a critical area for any expert witness to undertake.  In this matter, the attorney did not want to venture into this phase of discovery from the standpoint of keeping the finances manageable.  If the case had been slated for trial, I would have insisted upon having an inspection of the premises.  How credible can an expert be to the jurors, without ever having been to the location of the injury?

Final Analysis: When the activity is performed on blacktop, an immediate hazard is created. Any deviation can result in a fall onto the hard surfacing.  Additionally, by having the youngsters perform across the width of a typical 4’ x 8’ basic tumbling mat increased their chance of landing on the blacktop area.  Certainly, it was foreseeable that a child coming down hard onto the surfacing without a mat to protect them could suffer an injury.

Final Resolution:  This case came to me in September of 2007.  Recently, it just was resolved without going to trial.  Certainly, within our court system, cases are backed up and it is advantageous for parties to resolve their differences.

Tom Bowler is an expert witness has been retained in the last nineteen years on 310 cases throughout the United States.  He has been deposed 46 times and has testified at trials in New York State, Connecticut, Maryland, and Massachusetts for eight appearances. He works for both plaintiff and defendant attorneys in the areas of: physical education, athletics, recreation and playgrounds.  During Tom’s career, he taught elementary physical education for thirty-three [33] years in Vernon, Connecticut.   Tom has also been associated with Eastern Connecticut State University and Central Connecticut State University doing adjunct work for both universities.  At Central, Tom taught a course in “the application of tort law to physical activity”  to exercise science majors.  Additionally, he taught a graduate course at Central, in “sport, physical education, athletics and the law.”  Tom currently holds two certifications in playground safety.  He is a Certified Playground Safety Inspector [National Recreation and Park Association].   He holds his S.A.F. E. certification from the National Program for Playground Safety located in Cedar Falls, Iowa.