Q. And you understand that the break fall or the landing on your back was so that you would know how to land properly while doing gymnastics and other physical activities?
A. To a certain extent because the break fall and that he – Andy had demonstrated for us he never told us specifically that that is to learn when you’re running up to the springboard how to fall. Like it was – it was very vague in a sense that he didn’t exactly say this is what the break fall is for is to learn when you’re going to go over the box horse.
¶ 56 I am mindful of Clayton’s understanding of the break fall was as follows (p. 378, ll. 13-18):
Q. So would you agree with me that Mr. Romanuik taught the break fall as a safety precaution?
A. Well, I can’t agree with you. I know that it was taught as an exercise that we were performing. The idea of it being a safety manouevre never occurred to me until you brought it up.
¶ 57 The Plaintiff described the situation as follows (p.1316, l. 10 to p. 1317, l. 16):
Q. Okay, what happened at the crash mat?
A. Between – between Andy Brand and Mr. Romanuik, the two of them were demonstrating the progressions of the breakfall.
Q. Okay, and how did they do that?
A. The first one was started from the floor and I believe Mr. Romanuik demonstrated that one where he would just cross his hands in front of him and fall back.
Q. Okay.
A. And then moving from there across his hands and fall back again and throw his arms back.
Q. Okay.
A. And I believe he also went from there to give a small jump up and back onto the crash mat and throw his arms out.
Q. Okay, that’s great. And what happened next?
A. Then Andy – I believe it was Andy Brand that got up on the box horse and continued to again start from putting his hands across his body and falling back and then slapping his arms out with the next progression and from there jumping up and out the distance and slapping his arms back on the crash mat again.
Q. Okay, did – did everyone in the class, even Nicole and Karen, do all of these things from the box horse?
A. Yes, we were all asked to take turns and try each – at each level or each, yeah, level.
Q. Of what you had seen Andy do basically?
A. Right, right.
Q. Okay, and how many times do you remember going through the line?
A. Two or three times.
¶ 58 Following Andy’s demonstration, Danny attempted a manoeuvre. Lance described it as follows (p. 1443, ll. 13-27):
Q. Okay, now, when Mr. Brand was through demonstrating, do you happen to remember who went up next or was it just every man take his turn after that?
A. I think Dan Shank went up next.
Q. And what did he do?
A. He tried to better Andy.
Q. Was he able to?
A. I don’t think so.
Q. And then after that what happened?
A. After that we were just left to go our own way.
Q. What do you mean by your own way?
A. Well, just we were left to practice what we wanted off the springboard and everyone just tried to do something great and spectacular.
¶ 59 Romanuik testified that he then proceeded to instruct on rotations. The students had already performed a log roll and were then instructed on a lateral forward roll, and a medial access, which is a cartwheel. These exercises were done on the tumbling mats at the tumbling mat station.
¶ 60 All the students in the class were together when the forward rotations were demonstrated at the box horse. They consisted of the following: a forward roll over the box horse, a handspring over the box horse, a dive roll over the box horse and a straddle vault.
¶ 61 The students were also instructed on various vaulting activities and spotting techniques. The students were taught to spot the activities off the box horse by standing half-way between the box horse and the end of the mats; that is, positioned approximately half-way down the length of the crash mat. The spotter’s role was to make sure that the crash mat remained abutting the box horse and that students landed on the mat. Nicole testified that sometimes there were no spotters around the mats (236).
¶ 62 Lisa testified that on Monday Romanuik did give some instruction as to where spotters should stand. However, there were no discussions regarding the potential dangers of the equipment or the equipment configurations (3644).
¶ 63 Dr. Russell testified that he never taught spotting to the university class Romanuik took from him because, in his opinion, any activity that requires spotting is inappropriate for a school setting (73).
¶ 64 Dr. Wamsley, who was called by the Defendants, was properly qualified before me as an expert witness in the instruction of educational gymnastics, and in particular the assessment of instruction of gymnastics activities in Romanuik’s physical education class. I am also mindful of Dr. Wamsley’s testimony, that the students positioned on either side of the crash mat were not technically “spotters”, they were more like a courtesy service for the students so that they didn’t sprain their ankles (4320).
¶ 65 The students were then given an opportunity to practice activities on the two stations until the end of the class. The students performed rotations over the box horse and mini-trampoline stations. Breault testified that he did “anything that Andy or Danny would try”, everything from handsprings to somersaults, including swan dives (1667).
¶ 66 Andy’s participation was reviewed by some of the students at trial. The Plaintiff described Andy’s involvement as follows (p. 1318, l. 3 to p. 1319, l. 7):
Q. Okay. Now, think back carefully and tell us what you remember seeing Andy Brand demonstrate, whatever order you want to think of it in.
A. I don’t know what order he did it in –
Q. Okay.
A. - but he demonstrated several things. From a running start he would run to the springboard, spring off of it, do a somersault in the air and land onto the crash mat. He would run to the box horse, spring off of the springboard, put his hands on the box horse and flip over onto the crash mat again. He would also do the swan dive or diving over the box horse from a running start running, springing from the springboard and diving over the crash – over the box horse onto the crash mat and then again from a running start just continuing to do different variations of the somersault where he would run, spring from the springboard and do a somersault in the air and land on his feet, his bum, his back.
Q. Okay, do you remember him doing any other kinds of exercises where he ran up to the springboard?
A. Not from a running start.
Q. Okay. Okay, then you say not from a running start. What were you about to say then?
A. He had done some things from a static position on top of the box horse doing a frontward somersault and as well I remember him doing some backwards somersaults as well.
Q. Okay, and is that pretty well the end of what Andy did there?
A. I believe so, yes.
¶ 67 Claude testified that Andy demonstrated the following (p. 1549, l. 24 to p. 1550, l. 23):
A. Well, Andy was demonstrating for us. Mr. Romanuik had gotten him to do some demonstrations for us. He would do different things. Like, he would run up to the springboard and, again, do a flip over the springboard without touching it. Again, a 360 degree turn. He would mostly – most of the times land on his feet, but he would sometimes land on his bum or fall forward because it was hard to land on your feet on the mat because it gave quite a bit. He would also run and do a – again a flip over the springboard, touching his hands on the horse and then again doing a 360 degree turn. And he would also run and do – I guess it’s called a spread eagle where you just fly over the horse and land. He also tried just running up, springing on to the horse and then doing a forward flip, 360, and landing again. But usually when Andy did it he did it well, and sometimes he would land towards the end of the mat. But usually he would – he was the one that did the demonstrations for us.
¶ 68 Clayton testified that he remembers Andy doing the following (p. 334, l. 7 – l. 15):
Q. … Now, could you tell us whatever you remember seeing Mr. Brand do?
A. He did a forward leap, sort of a swan dive over the box horse, also a handspring, planting his hands on the box horse, going over, and I also remember a forward somersault.
Q. Okay. And can you explain, in the somersault did any part of the body touch the box, the box horse?
A. No.
¶ 69 Clayton described the swan dive executed by Andy as follows (p. 334, l. 25 to p. 335, l. 14):
A. Andy would be landing – well, again a quick run and to ensure clearing the box horse, it usually resulted in landing towards the end of the mat and when he’d land the mat would slide a little bit and it would be pushed back to the box horse back into position.
Q. By a little bit, you can just show in hands about how far.
A. I can’t be exact on the distance the mat moved.
Q. Okay, that’s fair enough. And the handspring, how would he land?
A. Again it was up and over and it would – there would be an attempt to land on your feet but in most cases it would be on your back or your buttocks.
Q. And how about with the somersault?
A. Again on the back or the butt most times.
¶ 70 Claude testified that he, Andy and Lance did a “forward somersault where they would jump and do a 360-degree turn and land on their feet” (1555). In cross-examination, Claude said he did a forward flip over the box horse with no hands, as well as a spread eagle (1631). He referred to the activity as follows (p. 1632, ll. 11-19):
Q. Well, didn’t you decide before you approached the box horse what flip you were going to do?
A. Not really because you had to get enough speed up to the box horse, and at the time you kind of just – it was sort of a split second thing. You know if you got enough speed, and you could get more height you’d probably do – I’d probably try a flip, you know, over the horse and land on the crash mat.
¶ 71 Clayton testified that, standing on the box horse, he did a forward somersault and handspring. Andy did these manoeuvres also (336).
¶ 72 The Plaintiff testified that she had seen Claude, Lance and Clayton do somersaults from a running start, springing from the springboard, and going over the box horse (1320). In the Plaintiff’s view, they would, from a running start, perform spread eagles over handsprings, somersaulting in the air (1320). Willie, Danny, Clayton (1553), and Breault (1670) testified that the girls were doing pretty much the same thing as the boys on Monday. Willie thought they did somersaults, hand springs, and swan dives (274) whereas Danny did not recall seeing the girls do swan dives (1113). Lance testified that they were also doing scissor kicks (1519). The Plaintiff testified that Denise, Rhonda and herself did some of those same activities without the same height as the boys (1320). The Plaintiff also remembered seeing Andy, Lance and Clayton do flips from the springboard and the mini-trampoline, jumping in the air, making 360-degree rotations (1322).
¶ 73 Romanuik testified that he had instructed that all of these exercises be done with hands on the box horse. However, Andy did some of these exercises without placing his hands on the box horse.
¶ 74 Romanuik testified that he demonstrated all exercises except the straddle vault. He indicated that he had never demonstrated an aerial somersault over the box horse as he could not perform such an exercise. His teaching philosophy was that he would not teach what he could not do himself. However, at the Examination for Discovery he testified that he could not demonstrate all activities because he had a “Charley horse”, that is, a quadricep pull from playing intramural hockey.
¶ 75 Romanuik testified that he did not see Andy demonstrate a somersault with a 360 degree turn over the box horse (3928).
¶ 76 Romanuik testified that some of the students did a spread eagle with hands and legs out over the box horse and they landed on their chest. Claude testified that Andy did various manoeuvres as requested by Romanuik (1625) such as a forward somersault, a spread eagle (1623) and a forward flip from the box horse to the mat (1624). Willie testified that after Andy had demonstrated the exercises as directed by Romanuik, such as the spread eagle, some of the students tried different moves (257). During these demonstrations Romanuik was watching at the side (259), as were the other students (1629).
¶ 77 Claude testified that he had seen Andy and Danny do back flips (a 180-degree turn) for the class (1628). Willie testified that Romanuik did not stop them because he considered this activity harmless. Lisa testified that Andy demonstrated a dive roll over the box horse (3611).
¶ 78 Willie (271), Nicole (237), Clayton (1566), and Lance (1453-1454, 1469) testified that they considered these exercises a part of their course. Lance described the situation as follows (p. 1522, l. 24 to p. 1523, l. 6):
Q. Sir, when you – my friend asked you if Mr. Romanuik ever instructed you to do these things, what did you think was the situation when Mr. Brand was demonstrating them to you?
A. As I mentioned yesterday, it’s observational learning. If Mr. Brand was doing it, then everyone else must have to do it too.
Q. Did you consider that a form of instruction by your teacher even though he wasn’t himself doing them?
A. Yes.
¶ 79 Breault described Monday’s class as follows (p. 1668, l. 13 to p. 1669, l. 7):
Q. Okay. Then now we stand back and sort of say, well, okay, you saw what you were doing. What were the boys generally doing? And if you can remember names, please do, if not, just generally.
A. In general, most people were trying anything that was increasing in difficulty. It would start with the swan dive as everybody had begun, and then it went into people trying more than one somersault, people who would try to twist in the air, rather than actually do a somersault they would twist in a prone position, and it – I wouldn’t say it was out of hand but it was getting towards, towards that I would say.
Q. All right. Now you said twist in the air. Can you explain that?
A. After jumping off the springboard and crossing the box horse in a prone position, the body would flip half a turn and rather than a swan dive and landing on your stomach you would land on your back.
Q. Did you do that one?
A. Yes, I did.
¶ 80 Lance described the class as follows at p. 1444, l. 25 to p. 1445, l. 27:
Q. Now, how about what you saw the rest of the class doing or anybody you might remember seeing in the line doing just relative to the springboard.
A. People were jumping onto the springboard, stopping on top of the box horse and then doing somersaults off of there; some people were just climbing up on top of the box horse and doing somersaults off of it. Everybody was pretty much doing what everyone else was trying to do.
Q. Okay. Now what did you do? You jumped up on the box horse. You said somersaults. What did you do specifically? What kind?
A. I did both forward somersaults and backwards.
Q. And how would you do the backwards one?
A. I’d just stand there, stand facing backwards on the box horse with the mat to my back, try to do a half rotation and hopefully land on my feet but mostly it was on my knees or my back.
Q. Landing every which way?
A. Yeah.
Q. Did you see anyone else – you said others were jumping from the springboard up onto the box horse. What did you see them doing? Can you put any names to anything?
A. The only one I really remember seeing is Denise standing up there doing a back flip, back somersault, same thing.
Q. That’s the girls. How about Andy and the boys?
A. Well, Andy and Danny, they’d do anything so, yeah, they did it as well.
¶ 81 In re-examination his testimony was as follows (p. 1526, ll. 5-17):
Q. Okay. And what were you doing again? I think you’ve discussed that already.
A. We were doing somersaults off it and spread eagles and swan dives.
Q. Sir, did that have any – anything – did what you were doing have anything to do with Mr. Romanuik asking you to be creative for marks at the beginning of that class?
A. It started out that way, and then we got bored, and we just kept doing what we wanted, and everyone was just trying to see what would be big and impressive, see what would get us the biggest marks, see – testing the limits, I guess you’d call it.
¶ 82 Clayton testified that all he did on the box horse was a “forward flip, 360-degree turn” over the box horse (390,1552). Clayton testified that Andy and Lance did a forward somersault off the box horse (389, 390). Clayton also testified that he and Andy also did a handspring on the box horse (391).
¶ 83 Breault said at trial that at the mini-trampoline station, he, Andy and Danny did back somersaults off of the mini-trampoline (1670). Breault testified that he did not complete the full rotation and landed directly on his knees; he found this slightly painful and embarrassing (1670).
¶ 84 Willie testified that on Monday he saw Karen do a somersault (294); Rhonda indicated that she did a front vault (295); Lisa did a somersault (298); Denise did a somersault over the box horse and handspring (298); and Nicole saw Andy do a back flip (231), somersault (232), and a swan dive (233). Clayton testified that Andy, Lance and himself did a swan dive over the box horse (391). Breault testified that he did not do a back flip (1706) but did do front somersaults (1734).
B. Tuesday, April 23, 1991
¶ 85 Once again there was a disparity in Romanuik’s class list (Exhibit P-4). However, the evidence clearly indicates that there were 15 students in attendance in Romanuik’s class on April 23, 1991. Identical to the Monday’s class, students began the class with a warm-up run. This was followed by stretching and setting up three stations under Romanuik’s direction. These stations were:
1. A springboard, full height box horse, crash mat configuration;
2. Mini-trampoline and tumbling mat configuration; and
3. A high bar and tumbling mat configuration, which was a new station.
In addition, the students performed tumbling exercises and played games similar to those played on Monday.
¶ 86 All students were initially directed to the high bar station for preliminary instruction by Romanuik and demonstrations by two junior high female gymnasts (Grade 9). The high bar was elevated to its highest point. The evidence of the students varied but ranged from 7 to 10 feet in height. Romanuik did not know the height of the high bar (p. 3936, l. 10 to p. 3937, l. 4):
Q. Mr. Romanuik, how high was the horizontal bar set?
A. I don’t know.
Q. All right, can you give us some idea?
A. To give you an idea, what did I is [sic] look at the tallest – tallest kid in the class and took into consideration his hands outstretched high enough so that he could swing back and forth using a long hang.
Q. All right, what is a long hang?
A. Just basically when you – you know, your hands are outstretched as well as your feet outstretched.
Q. All right, Mr. Romanuik, does the curriculum guide say that a horizontal bar should be at chest height?
A. Yes, it does.
Q. All right, why didn’t you have the bar set at chest height?
A. Because again the curriculum guide is only a guide and in all of my teachings as per se of Mr. Russell who never went over having the bar at chest height, activities that we have done with the high bar were at a definite higher height than chest height.
¶ 87 Romanuik explained the new activity and some safety precautions: chalking of hands, re-gripping, and body awareness. He stressed that the students should always be aware of where others were positioned in relation to themselves.
¶ 88 The students were then divided into three groups of their own choosing with one group going to each of the stations. The Plaintiff’s group consisted of all girls: Denise, Rhonda, Lisa, Karen and the Plaintiff. Each group was to spend approximately 20 minutes at that station before moving to a new station. Before splitting into these groups Romanuik advised the students that they had limited time on each station (Willie, 262) and they should work up a routine which would be graded on Friday, April 26, 1991. In working up the routine they were told to be “creative”, that is, that their overall routine should involve the manoeuvres they had learned at all three stations and they would be marked on their individual initiative and the creativity they demonstrated. There were no restrictions placed upon the students, with the exception that they were told to work within their own abilities. Some of the students took this to mean that whoever impressed Romanuik the most would get the best mark.
¶ 89 The five female students all went to the box horse station. Romanuik remained at the high bar with the group of male students. He did not leave the high bar from that point until after the Plaintiff was injured. Romanuik testified that he felt his presence was necessary at the high bar because this was a new station.
¶ 90 While at the high bar station, Romanuik observed the activities of the students at the two other stations. In particular he noted a student at the mini-trampoline station performing a forward salto off the mini-trampoline onto the tumbling mats. There is a conflict between the testimony of several students and Romanuik as to whether a crash mat was brought out and, if it was, the reason why and for what purpose. Lance, Andy, Claude, Clayton, Rhonda and Spencer testified that the crash mat was brought out during the course of the exercises. Romanuik testified that he did not recall a crash mat being brought out. On cross-examination he testified that he could not remember the use made of the crash mat except for the break fall exercise. Of the student questionnaires entered as exhibits, the drawing by Lance clearly reveals a crash mat at the mini-trampoline station. The questionnaires do not all contain drawings of the mini-trampoline station and for those that do, not all students drew mats, whether thick or thin, into the diagram. Further, I am mindful that there were only five students, including Lance at that particular station. In testimony Claude described his diagram on p. 25 of the student questionnaire (p. 1580, l. 14 to p. 1581, l. 5):
Q. Okay could you turn to page 25 sir? Would you explain the drawing on the right-hand side relative to where Lance and Clayton and Spencer and these fellows were at at [sic] the mini-trampoline station? You’ve drawn something else above that. Would you tell the Court what that was and your – read your comment beside it?
A. I had put:
This was the other mattress, and I think it was out
for the floor routine.
Q. Okay. And you indicated where it was, where it was located before that?
A. When I put this down, to me it seemed that the mat wasn’t out at the time and that the boys had gone and got it. And after they had got it, they had either set it up or had it out. But at the time I wasn’t sure if the mat was out or not, but I do remember that they were told sometime later to go get the mat and bring out to use it.
¶ 91 In cross-examination Claude testified as follows (p. 1638, l. 14 to p. 1639, l. 3):
Q. And if I could just refer you to page 52 of your statement. There is no crash mat depicted at the floor mat station, is there?
A. Where that trampoline is?
Q. That’s right?
A. No, I didn’t draw one there, but it had come out after. If you look at my other diagram I had drawn the crash mat in the corner.
Q. Right. And all you said there was you thought it was out?
A. Well, I vaguely remember it being out, yes.
Q. Right. But your statement says I think this one was out?
A. I was pretty sure I wouldn’t have put it down.
Q. I’m just asking you what your statement says, and your statement said I think this was out?
A. Yes. That’s what I said.
¶ 92 Of the five students at the station, only Lance drew this crash mat into the diagram of the mini-trampoline station. Lance testified that once the crash mat was brought out by he and Clayton (1506), the male students continued their activities at the mini-trampoline station. Lance described this scenario as follows (p. 1450, l. 21 to p. 1451, l. 20):