Negligence Lawsuit Against Tolland High Gym Teacher Advances in Superior Court

VERNON – A Superior Court judge has ruled that the negligence lawsuit brought against a Tolland High School physical education teacher by a student, who fractured several vertebrae in gym class in 2007, may proceed. However, the judge threw out similar claims that had been brought against the town, the and the Superintendent of Schools, William D. Guzman.

Judge Samuel J. Sferrazza on Monday agreed with defense Attorney Michael R. Oleyer’s argument that the legal doctrine of “sovereign immunity” bars Sara Whittemore’s negligence claims against the town, the school board and the superintendent of schools. Yet Sferrazza refused to extend that immunity to gym teacher Victor Hurtuk who was in charge of gym class during the period in which Whittemore and another student were injured while participating in the same structured fitness activity.

The lawsuit, which was filed in 2009 in Superior Court in Vernon, alleges that negligence on the part of Hurtuk led to Whittemore’s falling on her upper back from a height of approximately four feet during a “levitation” parachute activity on April 4, 2007.

The activity is a variation of the Eskimo blanket-toss ceremony, in which a hunter’s success is celebrated by tossing him high into the air using a blanket sewn from animal hides held by tribal members who then use it to catch their hero. During this altered version, Whittemore was launched several feet into the air by classmates holding the parachute.

Instead of breaking Whittemore’s fall with the stretched parachute they held in their hands, the other students - for some reason yet to be explained - allowed her to fall back first to the mats, which had been spread beneath the parachute for the activity.

Whittemore apparently lost her balance while being tossed upward from a seated position at the center of the parachute. She toppled backward so that her upper back and neck hit the mat first. On impact, she fractured three vertebrae in her thoracic spine and sustained a compression injury to her spine and had to be taken by ambulance to a hospital for treatment.

According to court papers, Oleyer’s effort to have the case dismissed against Hurtuk could not have been helped by the fact that another student levitated in the same class. Emily Martin, sustained a wrist fracture in a similar hard landing shortly before Whittemore was hurt.

In a sworn affidavit, Whittemore said that after Martin, her friend, was hurt, “no steps were taken by Mr. Hurtuk to alter the way the activity was conducted to minimize or prevent another injury from occurring.”

Hurtuk, according to court records, has been a physical education teacher at the high school since 2002. He was the only teacher to witness the incident involving Whittemore.

In his affidavit, Hurtuk said he has previously taught physical education in schools in Longmeadow, MA., and at the middle school in Tolland, using parachute activities with his students “on numerous occasions.” Hurtuk stated that he was taught parachute safety while a physical education student at Springfield College in Springfield, MA.

“[This] was the first time that a student of mine was injured during a levitation,” Hurtuk said.

In his filing, Ford conceded that the town, the school board and Guzman were legally immune from liability as Oleyer argued. However, the fact that two of four students were injured during a supervised activity on the same day, in the same class within minutes of each other, raised doubts about whether there was proper supervision.

Ford said the law requires “school officials to bear the responsibility of failing to act to prevent the risk of imminent harm to school children…When parents are required to relinquish custody of their children, the school has the duty to protect children from dangers that may be reasonably anticipated.”

The lawsuit seeks monetary damages in excess of $15,000. A pretrial conference in the case is set for March 1.