Bingham v. Board of Education of Ogden City

• Decision Date: 25 October 1950
• Docket Number: No. 7468,7468
• Citation: 223 P.2d 432,118 Utah 582
• Parties: BINGHAM, v. BOARD OF EDUCATION OF OGDEN CITY.
• Court: Utah Supreme Court

Page 432

223 P.2d 432

118 Utah 582

BINGHAM, v. BOARD OF EDUCATION OF OGDEN CITY.

No. 7468.

Supreme Court of Utah.

Oct. 25, 1950.

Thatcher & Young, Ogden, William H. Bowman, Pueblo, for appellant.

Wade M. Johnson, Ogden, for respondent.

LATIMER, Justice.

This is an action brought by Jack T. Bingham, individually and as guardian ad litem of his minor daughter, Marilyn Bingham, against the Board of Education of Ogden City, to recover damages flowing from an accident which injured Marilyn Bingham while she was playing on the school grounds of the Central Junior High School, in Ogden, Utah. The complaint attempts to state two causes of action; the first for injuries received by the minor, and the second for reimbursement for hospital and medical expenses paid by the father. A general demurrer to both causes of action was sustained by the lower court, the plaintiffs elected to stand on the allegations of the complaint, and the action was therefore dismissed. On this appeal the parties are referred to as they appeared in the court below.

The material facts pleaded in the complaint are as follows: That the defendant is a body corporate and owns the premises upon which the accident occurred; that on the day of the accident, and for some time prior thereto, the defendant maintained an incinerator for the purpose of burning old books, papers, debris, and other rubbish collected on the school premises; that there materials were deposited in the incinerator located in an unguarded place adjacent to a playground area and were burned at regular periods; that hot debris, embers and ashes were discharged or removed and allowed to accumulate over an area of several feet; that on the day in question the plaintiff, Marilyn Bingham, a child of the age of three years, was riding a tricycle and fell into the burning embers, receiving severe injuries; and that the operation of the incinerator in the dangerous and hazardous manner alleged constituted a nuisance.

The Board of Education of Ogden City is an agency of the State of Utah, created by the legislature. Article X, Section 1, of the Constitution requires the legislature to provide for the establishment and maintenance of a public school system. Section 2 of Article X defines what shall constitute the public school system, and Section 6 of the same Article separates school systems in cities of the first and second class from other school systems. Section 7, of Article X provides that 'All public School Funds shall be guaranteed by the State against loss or diversion.' In accordance with these requirements, the legislature of the State enacted legislation setting up school districts, creating boards of education, prescribing the functions and duties of such boards and granted to them the necessary powers and authority to carry out their required duties. (See Title 75, U.C.A.1943.)

The legislative enactments pertinent to the instant case are those which provide that separate boards of education shall be created in cities of the first and second class, Section 75-9-5, U.C.A.1943; that each board of education shall be a body corporate, that it may sue and be sued, and may hold, lease, sell and convey real and personal property, Section 75-9-8, U.C.A.1943; and that, among other powers the boards shall have power and authority to purchase and sell 'schoolhouse sites and improvements thereon, to construct and erect school buildings and to furnish the same, to establish, locate and maintain * * * schools * * * do all things needful for the maintenance, prosperity and success of the schools, and the promotion of education * * * and make and enforce all needful rules and regulations for the control and management of the public schools of the district.' Section 75-11-20, U.C.A.1943.

It frequently happens that the same act or omission may constitute negligence, and, at the same time, give rise to a nuisance. At times it is most difficult to determine whether an alleged state of facts establishes a nuisance or shows merely a lack of due care. Whether or not the allegations of this complaint picture a condition which, in law, is a nuisance or show merely negligent conduct, is a question not free from difficulty. Accordingly, we dispose of the liability of the school board regardless of the characterization of the negligence.

If the facts alleged in this action show ordinary negligence then, under previous statements made by this court, it would appear the demurrer was properly sustained. In the case of Woodcock v. Board of Education of Salt Lake City, 55 Utah 458, 187 P. 181, this court made mention of the lack of liability of a board of education for tort actions. There, the issue was the obligation of a school district to satisfy an award of the Industrial Commission for injuries suffered by an employed teacher. The particular principle now involved was not in issue in that case but this court recognized the general rule limiting the board's tort liability where, as in this state, there is no statute imposing liability. The court said, 55 Utah at page 463, 187 P. at page 183: 'The general law of this jurisdiction, as in most other jurisdictions, does not authorize actions for damages for personal injuries against school districts. School districts are corporations with limited powers, and act merely on behalf of the state in discharging the duty of educating the children of school age in the public schools created by general laws.'

All jurisdictions have not followed the general rule mentioned in that case. The courts of the state of New York have adopted a somewhat different principle. See Annotation 160 A.L.R. 7, pp. 42, 76-81, and cases cited in note 5, page 76. In that jurisdiction the courts have made a distinction between negligence which may be attributed to a school district or school board itself, such as the non-performance of a duty imposed by law upon the district or board, and negligence which may be attributed only to an officer, agent or employee, and they have held that the rule of non-liability applies only in the latter situation.

The New York rule was considered and discussed by the Supreme Court of North Dakota in the case of Anderson v. Board of Education, 49 N.D. 181, 190 N.W. 807, 810. There the plaintiff brought action against the board for damages for the death of her son, caused by the negligence of the defendant in the construction and maintenance upon the school playground of certain chutes and swings. One of the heavy swings struck deceased in the head causing his death. The court said: 'However, in reaching our conclusion, we do not feel that we can follow the New York authority. To do so, we think, would result in placing a school corporation, having a board of education, and perhaps every school corporation, in such a position that actions for erecting or maintaining a nuisance or for negligence or for damages could be brought with as much ease against them as against the ordinary business corporation, and, if this would be the result, boards of education or school officers would have no immunity, and from fear and anticipation of such suits perhaps would fail to exercise the functions incumbent upon them in their governmental capacity, and this might very frequently result largely in failure of administration of school affairs. We think the safest rule is that, where such a board is acting in a governmental capacity in the discharge of its lawful duties, and its acts are such as are within its powers as defined by law, it should be immune from all forms of action against it, except such as are by law permitted.'

While law writers, editors and judges have criticized and disapproved the foregoing doctrine of governmental immunity as illogical and unjust, the weight of precedent of decided cases supports the general rule and we prefer not to disregard a principle so well established without statutory authority. We, therefore, adopt the rule of the majority and hold that school boards cannot be held liable for ordinary negligent acts.

Plaintiffs, however, contend that even if we follow the general rule they still have alleged a cause of action, as immunity from tort liability cannot be claimed when the act complained of reaches the level of a nuisance.

Since many of the cases relied on by plaintiffs deal with the liability of municipal corporations, we point out that the authorities seem to make a distinction between municipal corporations and what are termed 'quasi-municipal' corporations. This distinction is better understood when consideration is given to the fact that school boards are created exclusively for school purposes and are mere agencies of the state established for the sole purpose of administering a system of public education for which they receive no private or corporate benefit; and that, as to tort liability, such agencies or authorities occupy a status different from that of municipal corporations which ordinarily have a dual character and which may exercise proprietary as well as governmental functions. McQuillin on Municipal Corporations, explains the distinctions as follows (Sec. 2775, 2nd Ed.):

'* * * it is pertinent to state here that there is a distinction between municipal corporations proper and quasi-municipal corporations concerning liability for torts, and that the general rule is that the latter is not liable for torts unless allowed by statute. * * *

'The immunity from liability of quasi-public corporations is generally placed upon the ground of their involuntary and public character. They are usually treated as public or state agencies, and their duties are ordinarily wholly governmental. They exercise the greater part of their functions as agencies of the state merely, and are created for purposes of public policy, and hence the general rule that they are not responsible for the neglect of duties enjoined on them, unless the action is given by statute. On the other hand, it is recognized that the...