206 A.2d 560 (Md. 1965), 148, Weisner v. Board of Ed. of Montgomery County

Docket Nº:148.
Citation:206 A.2d 560, 237 Md. 391
Opinion Judge:[10] Hammond
Party Name:Howell WEISNER and Lois Weisner v. BOARD OF EDUCATION OF MONTGOMERY COUNTY.
Attorney:[7] Melvin M. Feldman for the appellants.
Case Date:February 03, 1965
Court:Court of Appeals of Maryland
 
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Page 560

206 A.2d 560 (Md. 1965)

237 Md. 391

Howell WEISNER and Lois Weisner

v.

BOARD OF EDUCATION OF MONTGOMERY COUNTY.

No. 148.

Court of Appeals of Maryland.

February 3, 1965

Melvin M. Feldman, Wheaton, for appellants. [237 Md. 392]

Charles W. Prettyman, Rockville, for appellee. [237 Md. 391]

Before PRESCOTT, C. J., and HAMMOND, MARBURY, SYBERT and OPPENHEIMER, JJ.

HAMMOND, Judge.

The appellant, Lois Weisner, was escorting her young daughter to school one morning when she slipped on an icy sidewalk which ran along the side of the school and fell, suffering a broken hip. She and her husband sued the Board of Education of Montgomery County for failing to meet its alleged duty to keep the sidewalk 'free of ice and hazardous conditions.' The declaration was demurred to on the ground, among others, that the Board of Education was immune from liability in tort. Judge Shook sustained the demurrer of the Board without leave to amend, saying: 'See [State, to Use of] Weddle v. Board of School Commissioners, 94 Md. 334 [51 A. 289].'

In Weddle a pupil was fatally injured as a result of a fall caused by a wire stretched from tree to tree about four feet above the grounds of the school which she attended. The declaration of her father in a suit against the School Commissioners of Frederick

Page 561

County was demurred to and the demurrer sustained. In affirming this action of the lower court, the Court of Appeals pointed out that the declaration alleged that the School Commissioners had general control and supervision of the public schools of Frederick County and that it was their duty to keep the school property involved in safe condition and that it had breached this duty, and said (pp. 343-344 of 94 Md., pp. 290-291 of 51 A.):

'We think, then, it is clear that a body corporate of the character of the defendant in this case cannot be made liable in an action of tort, in the absence of statutory authority. We must, then, look to the statutes to ascertain if the legislature has expressly or by implication conferred any such right as is sought to be exercised in this case; in other words, whether there is any statute authorizing a suit of this character to be maintained against the defendant.

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'Now, it is obvious, we think, that the legislature intended, by the use of the language 'shall be capable [237 Md. 393] to sue and be sued,' to restrict the liability of...

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