Boyer v. Iowa High School Athletic Ass'n

• Citation: 256 Iowa 337,127 N.W.2d 606
• Decision Date: 08 April 1964
• Docket Number: No. 51235,51235
• Parties: Marion BOYER, Appellant, v. IOWA HIGH SCHOOL ATHLETIC ASSOCIATION and Independent School District of Mason City, Iowa, Appellees. Carroll GARLAND, Appellant, v. IOWA HIGH SCHOOL ATHLETIC ASSOCIATION and Independent School District of Mason City, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 606

127 N.W.2d 606

256 Iowa 337

Marion BOYER, Appellant, v. IOWA HIGH SCHOOL ATHLETIC ASSOCIATION and Independent School District of Mason City, Iowa, Appellees.

Carroll GARLAND, Appellant, v. IOWA HIGH SCHOOL ATHLETIC ASSOCIATION and Independent School District of Mason City, Iowa, Appellees.

No. 51235.

Supreme Court of Iowa.

April 8, 1964.

Pappas & Senneff, Mason City, for appellants.

Westfall, Laird & Burington, and Beck & Butler, Mason City, for appellees.

GARFIELD, Chief Justice.

Two paying spectators at a high school tournament basketball game brought law actions against the Iowa High School Athletic Association and the Independent School District of Mason City to recover for personal injuries from collapse of the bleachers. The trial court sustained the school district's motion to dismiss on the ground it was an agency of the state, not liable for negligence in the discharge of a governmental function in the absence of statutory authority for the actions. Plaintiffs appeal from the dismissal. No determination has been made as to the athletic association's liability and that question is not before us.

Since the actions are identical we will refer to only one of them.

I. The single error relied on for reversal is the sustaining of the motion in that, it is said, the doctrine of governmental immunity should be abrogated in Iowa as outmoded, harsh and not in keeping with the modern trend of the law. Unquestionably adherence to our prior decisions over a period of nearly a hundred years would lead to an affirmance.

The school district is a quasi corporation, an arm or agency of the state, created by the legislature to carry out the governmental function of maintaining public schools. City of Bloomfield v. Davis County Comm. School Dist., 254 Iowa 900, 904, 119 N.W.2d 909, 912, and citations.

As such a quasi corporation a school district does not differ essentially from a county except that its functions and the purposes of its organization are fewer and more restricted. Lane v. District Township of Woodbury, 58 Iowa 462, 463, 12 N.W. 478.

These quasi corporations are to be distinguished from municipal corporations proper, such as cities, which are more amply endowed with corporate functions, conferred in general at the request of the inhabitants of the municipality for their peculiar and special advantage and convenience. Soper v. Henry County (Dillon, J.), 26 Iowa 264, 267; Snethen v. Harrison County, 172 Iowa 81, 85-86, 152 N.W. 12, 13; Larsen v. School District, 223 Iowa 691, 700-701, 272 N.W. 632; Shirkey v. Keokuk County, 225 Iowa 1159, 1170, 275 N.W. 706, 281 N.W. 837.

Commencing with Soper v. Henry County, supra, in 1868, we have consistently and repeatedly held, with three exceptions later to be mentioned, that such quasi corporations as counties and school districts are not liable for negligence in the absence of a statute so providing. Speaking of the liability of such 'involuntary * * * divisions of the state,' the Soper opinion holds (pages 267, 271 of 26 Iowa): 'To the statute they owe their creation, and the statute confers upon them all the powers which they possess, prescribes all the duties which they owe, and imposes all the liabilities to which they are subject. * * * If the county ought to be liable in such a case, the remedy must be sought from the legislature.'

Snethen v. Harrison County, Larsen v. School District, Shirkey v. Keokuk County all supra, and Post v. Davis County, 196 Iowa 183, 192-193, 191 N.W. 129, 194 N.W. 245, are among decisions which repeat the quoted language. To like effect are Cunningham v. Adair County, 190 Iowa 913, 915-916, 181 N.W. 20; Bruggeman v. Independent School Dist., 227 Iowa 661, 664, 289 N.W. 5; Perkings v. Palo Alto County, 245 Iowa 310, 317, 60 N.W.2d 562, 565; Wittmer v. Letts, 248 Iowa 648, 651, 80 N.W.2d 561, 562.

In 1908 Wenck v. Carroll County (Weaver, J.), 140 Iowa 558, 560, 118 N.W. 900, observed: 'The rule which has heretofore obtained does not often work substantial injustice, and, if it is to be materially modified or overthrown, it should be done by an expression of the legislative will to that effect.'

That our decisions correspond with many others to the effect a school district is not liable, in the absence of statute, for injury to pupils or others by reason of the condition of the school premises, see the annotations in 9 A.L.R. 911 and those supplementing it; 40 A.L.R. 1091; 160 A.L.R. 7, 127 et seq.; 86 A.L.R.2d 489, 545-546.

The annotation in 160 A.L.R. 7, 127, 129, cites many decisions in support of this rule: '* * * in the absence of statute, it is the general rule that school districts, * * * are immune from liability in tort for the personal injuries or death of pupils or other persons resulting from the dangerous, defective, unsafe, or negligent condition of school buildings, school grounds, or other school facility or equipment on school premises, * * *.

'A similar rule obtains with respect to the liability of counties, or towns not having the status of a municipal corporation, while in charge of public school premises.'

To like effect is Anno. 86 A.L.R.2d 489, 546.

We now mention the three exceptions we have recognized to the rule of nonliability of quasi public corporations. (1) Counties were held liable for injury from defective bridges and approaches thereto. This was first recognized in Wilson & Gustin v. Jefferson County, 13 Iowa 181. After a change in the applicable statute the cited decision and those which followed it were overruled in Post v. Davis County, supra, 196 Iowa 183, 191, 191 N.W. 129, 194 N.W. 245, where 'we return to the fundamental principle of nonliability of the county in the absence of legislation creating liability' (196 Iowa pages 195-196, 191 N.W. page 135).

(2) Ness v. Independent School Dist., 230 Iowa 771, 298 N.W. 855, holds the district liable in damages for a nuisance.

(3) Wittmer v. Letts, supra, 248 Iowa 648, 80 N.W.2d 561, holds a county liable for injury to a paying patient in its hospital by reason of the negligence of an employee, on the theory maintenance of the hospital was a proprietary, not a governmental, function.

II. The trial court ruled that holding the basketball tournament was a governmental function, not a proprietary one. There is no room for a contrary holding here on this point. Plaintiff does not contend the court erred in this respect. As previously indicated, her sole assigned error is that the whole doctrine of governmental immunity is outmoded and should be abrogated by the court. It is of course fundamental that a law case will not be reversed on a possible error not assigned and argued. See rule 344(a)(4) (Third), Rules of Civil Procedure, 58 I.C.A.

We may observe many authorities support the view the school district was engaged in a governmental function even though spectators at the game were charged admission. They include Richards v. School District, 348 Mich. 490, 83 N.W.2d 643, 648-54; Mokovich v. Independent School Dist., 177 Minn. 446, 225 N.W. 292, 293; Rhoades v. School District, 115 Mont. 352, 142 P.2d 890, 160 A.L.R. 1, 6; Brown v. Board of Trustees, 303 N.Y. 484, 104 N.E.2d 866, 34 A.L.R.2d 720, 723; Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783, 788; Reed v. Rhea County, 189 Tenn. 247, 225 S.W.2d 49; Annos. 160 A.L.R. 7, 67-68, 182, 191-192; 86 A.L.R.2d 489, 576, 582-584. Sawaya v. Tucson High School Dist., 78 Ariz. 389, 281 P.2d 105, is the only contrary precedent called to our attention.

We may also observe, without deciding the point, there is much authority that a school district exercises only governmental functions. Reed v. Rhea County, supra; Annos. 160 A.L.R. 7, 65-68; 86 A.L.R.2d 489, 516-520. See also Lane v. District Township of Woodbury, supra, 58 Iowa 462, 463, 12 N.W. 478; Larsen v. School District, supra, 223 Iowa 691, 700-701, 272 N.W. 632.

III. We have held many times that if the doctrine of governmental immunity is to be changed it should be done by the legislature. We have already referred to Wenck v. Carroll County, 140 Iowa 558, 560, 118 N.W. 900, and other early cases. Decisions to like effect include Florey v. City of Burlington, 247 Iowa 316, 320-321, 73 N.W.2d 770, 772; McGrath Building Co. v. City of Bettendorf, 248 Iowa 1386, 1392, 85 N.W.2d 616, 620, 68 A.L.R.2d 1429; Monroe v. Razor Constr. Co., 252 Iowa 1249, 1255-1256, 110 N.W.2d 250, 254.

See also Genkinger v. Jefferson County, 250 Iowa 118, 121, 93 N.W.2d 130, 132 which states, 'While this rule of governmental immunity as to counties * * * is a court-made rule, it has been in substance the law of the state for many years. We feel it is based upon sound reason and are not inclined to change it.'

The position we have taken accords with that of most courts. The annotation in 86 A.L.R.2d 489, 501, says: 'Undoubtedly, there is more criticism now of the doctrine of governmental immunity and its various underlying reasons, but in most instances the courts have felt that any relief should come from the legislature, particularly in view of the fact that the immunity doctrine in most jurisdictions has been adhered to for a great many years.'

We think experience in the few states where the court has attempted to abrogate the immunity doctrine indicates legislative action is a better solution. The two principal precedents plaintiff cites are Molitor v. Kaneland Comm. Unit. Dist., 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469, and Spanel v. Mounds View School Dist., 264 Minn. 279, 118 N.W.2d 795. They are the only decisions cited where the court abrogates the immunity doctrine as directly applied to a school district. In both cases the decision was to operate prospectively.

In Illinois the new court-made rule was to apply to the instant case and to such others only as arose out of future occurrences. The state legislature promptly reinstated immunity as to certain governmental subdivisions. See Spanel v. Mounds View School Dist., supra, ...