Weisner v. Board of Ed. of Montgomery County

Citation206 A.2d 560,237 Md. 391
Decision Date03 February 1965
Docket NumberNo. 148,148
PartiesHowell WEISNER and Lois Weisner v. BOARD OF EDUCATION OF MONTGOMERY COUNTY.
CourtCourt of Appeals of Maryland

Melvin M. Feldman, Wheaton, for appellants.

Charles W. Prettyman, Rockville, for appellee.

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 .'

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 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.

* * *

* * *

'Now, it is obvious, we think, that the legislature intended, by the use of the language 'shall be capable to sue and be sued,' to restrict the liability of the boards of county school commissioners to such suits in respect to matters within the scope of their duties and to such things as the boards are empowered to do. We find nothing in the statutes that would justify a different conclusion, or would sustain the contention of the appellant in this case.

'There is no power given the boards of school commissioners to raise money for the purpose of paying damages, nor are they supplied with means to pay a judgment against them. All of their funds are appropriated by law to specific purposes, and they cannot be diverted by them. The constitution of the state, (section 3, art. 8) provides that the school fund of the state shall be kept inviolate, and appropriated only to the purposes of education. In Perry v. House of Refuge, 63 Md. 27, this court distinctly held, in adopting the English decisions on the subject, that damages could not be recovered from a fund held in trust for charitable purposes. In the language of Lord Campbell, the wrongdoer must pay from his own pocket.'

The appellants, recognizing that they cannot prevail if the law of Weddle is still the law of Maryland, urge first, that the range of the thrust of Weddle is not what it was in 1902 when that case was decided because '* * * much has happened in the affairs of man and his education, as well as the law, since 1902,' as this Court recognized in Clauss v. Board of Education, 181 Md. 513, 30 A.2d 779, and second, that if the law is still what Weddle held it to be in 1902 it should be changed by judicial decision to strip school authorities of immunity for torts.

The Clauss case held that a county board of education, in repairing school buildings, was an agent of the county and hence liable under the Workmen's Compensation Act by virtue of the specific terms of the statute for injuries sustained by the Board's employees while engaged in extra-hazardous work, and that use of public school funds to pay compensation or insurance premiums was for purposes of education and therefore did not violate the terms of Sec. 3 of Art. VIII of the Constitution of Maryland, which...

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14 cases
  • Austin v. City of Baltimore
    • United States
    • Maryland Court of Appeals
    • September 13, 1979
    ...the opinions of this Court. See, for example, State v. Baltimore County, 218 Md. 271, 273, 146 A.2d 28 (1958); Weisner v. Bd. of Education, 237 Md. 391, 395, 206 A.2d 560 (1965); Godwin v. County Comm'rs, 256 Md. at 333, 260 A.2d 295; Duncan v. Koustenis, 260 Md. 98, 104, 271 A.2d 547 (1970......
  • Duncan v. Koustenis
    • United States
    • Maryland Court of Appeals
    • December 11, 1970
    ...law of Maryland, this Court has specifically declined to alter it without a legislative mandate. Weisner v. Board of Education of Montgomery County, 237 Md. 391, 395, 206 A.2d 560 (1965). Thus, conceding the existence of governmental immunity of the school board, the only question at issue ......
  • Fitzgerald v. Montgomery County Bd. of Ed.
    • United States
    • Court of Special Appeals of Maryland
    • May 1, 1975
    ...the rule that trespassers and bare licensees take the premises as they find them', is as valid today as when it was made. In Weisner v. Board of Education, supra, the Court declared, 237 Md. at 395, 206 A.2d at 562, that the rule regarding sovereign immunity of school boards enunciated in W......
  • Baltimore County v. RTKL ASSOCIATES INC.
    • United States
    • Maryland Court of Appeals
    • April 9, 2004
    ...many meritorious claims against state and local governments" and noted the then-recent holding of this Court in Weisner v. Bd. of Education, 237 Md. 391, 206 A.2d 560 (1965) that the doctrine was so firmly established in Maryland law that any change would have to come from the The clear foc......
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