Crowell v. School Dist. No. 7 of Gallatin County, Mont.
| Decision Date | 25 January 1991 |
| Docket Number | No. 90-189,90-189 |
| Citation | 247 Mont. 38,805 P.2d 522 |
| Parties | , 65 Ed. Law Rep. 919 Terry Lynn CROWELL, Plaintiff and Appellant, v. SCHOOL DISTRICT NO. 7 OF GALLATIN COUNTY, MONTANA, a political subdivision of the State of Montana; Keith Chambers; Lou Gappmayer; and Dave Allen, Defendants and Respondents. |
| Court | Montana Supreme Court |
Monte D. Beck, Beck Law Offices; Bozeman, for plaintiff and appellant.
Gig A. Tollefsen, Berg, Lilly, Stokes, Andriolo, Tollefsen & Schraudner, Bozeman, for defendants and respondents.
Plaintiff, Terry Lynn Crowell (Ms. Crowell), brought this negligence action against School District No. 7 of Gallatin County, Montana (School District), and her physical education teacher, Dave Allen (Mr. Allen), to recover damages for her injuries sustained during a high school gym class. The District Court for the Eighteenth Judicial District, Gallatin County, granted defendants' motion for summary judgment on the grounds that they were immune from suit. From that decision, plaintiff appeals. After oral argument we reverse and remand.
The issues for our review are:
1. Are the School District and the physical education teacher immune from suit under § 2-9-111, MCA?
2. If the School District and the physical education teacher are immune from suit, did the School District's purchase of liability insurance waive its immunity?
On March 1, 1984, Ms. Crowell, was injured during her physical education class while attempting to perform a gymnastics routine taught by Mr. Allen. As part of the class, Ms. Crowell was required to perform compulsory gymnastic exercises including parallel bars, high bars, rings, balance beam and vault. The class was divided into several groups of approximately six students per group. Each group went to various stations to try different gymnastic maneuvers.
During the ring exercise, Ms. Crowell was instructed to attempt a maneuver called a "straddle-cut dismount" or a "straddle-leg cut-off". The maneuver required that Ms. Crowell, while hanging from the rings, rapidly swing her legs forward above her head. Ms. Crowell did not complete the maneuver because she was unable to generate enough momentum to propel her through the maneuver. As her legs swung over her head, she released her grip on the rings and fell on the mat, landing on her shoulders and neck and was injured.
Ms. Crowell was unsupervised during the maneuver. Mr. Allen did not spot or otherwise assist in the performance of the maneuver. While Mr. Allen had assigned students with the duty to spot for each other, no student actually spotted for Ms. Crowell during the maneuver.
The School District purchased a comprehensive liability insurance policy covering the period from July 1, 1983, through July 1, 1986. The policy specifically covered high school premises, teachers, and physical training instructors.
Ms. Crowell filed suit against the School District and also the teacher, Mr. Allen. In addition the superintendent and the principal were named as defendants but later were dismissed. Defendants School District and Mr. Allen filed a motion for summary judgment contending they were immune from suit under State ex rel. Eccleston v. Montana Third Judicial Dist. Court (1989), 240 Mont. 44, 783 P.2d 363. Ms. Crowell argued that even if the School District and its employees were immune, the purchase of comprehensive liability insurance waived that immunity.
The District Court granted summary judgment for the defendants concluding they were immune under Eccleston; Peterson v. Great Falls School Dist. No. 1 and A (1989), 237 Mont. 376, 773 P.2d 316; and Miller v. Fallon County (1989), 240 Mont. 241, 783 P.2d 419. From that decision, Ms. Crowell appeals.
Are the School District and the physical education teacher immune from suit under § 2-9-111, MCA?
Ms. Crowell contends that neither defendant is part of the "school board", and as a result are not part of the legislative body. She therefore maintains the defendants are not immune under § 2-9-111, MCA. Defendants maintain they are immune from suit under Eccleston.
In pertinent part § 2-9-111, MCA states:
2-9-111. Immunity from suit for legislative acts and omissions. (1) As used in this section:
(a) the term "governmental entity" includes ... school districts;
(b) the term "legislative body" includes ... any local governmental entity given legislative powers by statute, including school boards.
(2) A governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof.
(3) A member, officer, or agent of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty associated with ... action by the legislative body. (Emphasis added).
Peterson was an action brought by a custodian against a school district. In that case we stated:
Comparing the Bieber [v. Broadwater County (1988), 232 Mont. 487, 759 P.2d 145] case with the facts in this case, we find the only differences are that the governmental entity in this case is a school board, rather than the county commissioners, and that the party performing the act is an agent/employee of the legislative body, rather than a member. The statute clearly extends immunity coverage to school districts, to the school boards governing those school districts and to agents of those school boards. (Emphasis added.)
* * *
Peterson, 773 P.2d at 318. Eccleston also involved a school district, its school board, and custodians. In that case the argument was made that no member, officer or agent of any legislative body was being sued. On that issue Eccleston stated:
... Clearly, the relators in this case are agents of the school board:
(2) A servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master. (Emphasis added.)
Restatement 2d of Agency, § 2.
Eccleston, 783 P.2d at 368. Eccleston concluded that the school board is the "legislative body" of the school district. As a result the school district was immune.
In determining that the janitor was immune, Eccleston concluded that the janitor was an agent of the legislative body and that his failure to clear ice and snow from the sidewalk arose from the lawful discharge of his custodial duties. At that point Eccleston had determined that the custodian was an agent of the legislative body and that his actions arose from a lawful discharge of an official duty, as set forth in § 2-9-111(3), MCA. On the question of whether the official duty was associated with action by the legislative body, Eccleston held that the omission by the school district was the failure to provide funding for maintenance of the stairs and employment of custodians. Eccleston therefore concluded that both the school district and janitor were immune under § 2-9-111, MCA.
In applying the foregoing holdings to the present case, we must also consider § 20-4-201, MCA, which covers the employment of teachers and states in pertinent part:
(1) The Trustees of any district shall have the authority to employ any person as a teacher ... Each teacher ... shall be employed under written contract, and each contract ... shall be authorized by a proper resolution of the trustees ...
The duties on the part of a teacher are summarized in § 20-4-301, MCA:
(1) Any teacher under contract with a district shall:
(a) conform to and enforce the laws, board of public education policies, and the policies of the trustees of the district;
(b) utilize the course of instruction prescribed by the trustees;
. . . . .
Section 2-9-111(2), MCA, provides that a governmental entity, here the School District, is immune from suit for an act or omission of its agent. Under the foregoing statutes the physical education teacher is an agent of the School District. As a result we hold that the School District is immune from suit for the acts or omissions of Mr. Allen, its agent.
Acting under the above code sections, the School District hired Mr. Allen as a physical education teacher under contract, and he was required to utilize the course of instruction prescribed by the School District. Mr. Allen allegedly failed to supervise or otherwise protect the plaintiff during his discharge of duties as a physical education teacher under the course of instruction prescribed by the School District. We conclude that any negligence on the part of Mr. Allen was associated with action by the School District in that it was the District which established programs and curriculum, including the specific course of instruction and which offered physical education classes as a part of such instruction. We agree with the conclusion of the District Court that the claim for damages arose from the lawful discharge by Mr. Allen of an official duty associated with actions of the School District and its legislative body. We hold that Mr. Allen, the physical education teacher, is immune from suit under § 2-9-111, MCA.
If the School District and the physical education teacher are immune from suit, did the School District's purchase of liability insurance waive its immunity?
Ms. Crowell maintains that the purchase of liability insurance by the School District waived immunity. She maintains that the immunity section must be viewed in light of the other sections of the Code that provide for insurance coverage and payment of claims against governmental entities and subdivisions. She points out that the School District's insurance policy specifically endorsed coverage for physical education teachers for all school related activities. The School District and Mr. Allen maintain there is absolute immunity under § 2-9-111, MCA.
Whether the purchase of insurance waives immunity is a question of first impression in Montana under the 1972 Constitution of Montana. Many other states have...
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