Domino v. Mercurio

• Decision Date: 06 December 1962
• Citation: 234 N.Y.S.2d 1011,17 A.D.2d 342
• Parties: John DOMINO, Individually and as Guardian ad Litem of Joseph Domino, an Infant, Respondents, v. Philip S. MERCURIO, Raymond R. Walter, and Board of Education of the City of Buffalo, New York, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 1011

234 N.Y.S.2d 1011

17 A.D.2d 342

John DOMINO, Individually and as Guardian ad Litem of Joseph Domino, an Infant, Respondents, v. Philip S. MERCURIO, Raymond R. Walter, and Board of Education of the City of Buffalo, New York, Appellants.

Supreme Court, Appellate Division, Fourth Department.

Dec. 6, 1962.

Montesano, Garvey & Magner, Buffalo, for respondent; Philip H. Magner, Jr., Buffalo, of counsel.

Elmer S. Stengel, Buffalo, for appellants; John P. Egan, Buffalo, of counsel.

Before WILLIAMS, P. J., and BASTOW, HALPERN, McCLUSKY and HENRY, JJ.

HALPERN, Justice.

This action was brought to recover for injuries suffered by the infant plaintiff when he fell over a bench while playing in a softball game in a school playground maintained by the Board of Education of the City of Buffalo, on August 23, 1956.

The playground was screened in by a fence. The third base line was 27 feet from the nearest fence. There were three benches in the baseball area; one was on the first base side, and two were on the third base side, up against the fence. It was contemplated that the players would use the benches while they were awaiting their turn at bat. The game in which the plaintiff was injured was a championship contest. A crowd of approximately 125 persons watched the game, about 100 of them being on the third base side of the diamond. Attendance by spectators, especially by parents of the players, was encouraged at the ball games. The crowd appropriated the benches and overflowed onto the ground in front of them.

The infant plaintiff was the catcher on his team. A foul ball was hit into the crowd between home plate and third base. The plaintiff ran after the ball 'as fast as [he] could', looking up at the ball as he pursued it. He tripped over a spectator, who was apparently sitting on a bench, and he fell over the bench and as a result broke his leg. The evidence justified a finding that the bench was then halfway between the fence and the third base foul line.

The Board of Education approved the organization of the softball league and provided the equipment for the games and assigned teachers as supervisors. The defendants Mercurio and Walter were assigned to supervise the game involved in this case. Walter acted as umpire and was charged with the duty of controlling the ground on the third base side of the field; Mercurio supervised the crowd on the first base side.

Ropes and standards were available which could have been used to restrain the crowd if the supervisor thought it necessary or wise. The defendant Walter did not consider the use of ropes necessary to control the crowd on the day in question. It was Walter's practice to halt the game and to compel the spectators to move back to the fence if they moved so near the foul line as to endanger the players. This he did on two occasions during the game, but the spectators 'gradually drifted' forward again. This time they were not ordered back and, while the spectators were close to the third base line, the accident occurred.

At the conclusion of the case, no motion to dismiss the complaint was made by the defendants. This constituted a concession by the defendants that there was a question of fact to go to the jury (Murtha v. Ridley, 232 N.Y. 488, 491-492, 134 N.E. 542-543). The jury returned a verdict in favor of the plaintiffs against all the defendants.

We have no difficulty in affirming the judgment against the individual defendants. There was ample evidence to support the finding implicit in the jury's verdict that the supervisors had been negligent in allowing the spectators to congregate close to the third base line, to push the bench into a dangerous position and to obscure it from the view of any baseball player who might run after a foul ball near the third base line. There is no question in this case as to the sufficiency of the notice to the defendants Walter and Mercurio. They were present at all times and the recurring gradual movements of the spectators toward the third base line were visible to them.

The findings implicit in the jury's verdict that the plaintiff was not guilty of contributory negligence and that he was not chargeable with a voluntary assumption of a known risk in connection with his injury are also in accordance with the weight of the evidence.

The difficult problem in the case is presented by the question of the liability of the defendant Board of Education. The trial court charged the jury:

'Now, in maintaining playgrounds, the City or any of its agencies, and that includes the Board of Education, * * * acts as a legal individual and is not immune from liability for the negligence of its officers given charge and authority over such playgrounds and the apparatus there contained.'

The appellant Board of Education argues vigorously upon appeal that this charge was erroneous since it authorized the jury to find the Board liable under the ordinary principle of respondeat superior and made it liable for the negligence of its teachers or playground supervisors, without any finding that the Board itself had been guilty of negligence in the selection of the teachers or supervisors.

No exception was taken to the court's charge and, as has been noted, no motion to dismiss was made at the close of the case. But we have the power to reverse in the interests of justice, if the case was submitted on a fundamentally erroneous theory, even though no exception was taken (Niagara Mohawk Power Corporation v. AEtna Insurance Company, 15 A.D.2d 390, 394, 224 N.Y.S.2d 536, 539). The question of whether the charge was correct is therefore before us for decision.

We have come to the conclusion that the charge was correct and that the Board was properly held liable in this case. In our opinion, the charge represents the present law, although no appellate court has as yet spelled out the liability of Boards of Education in as broad terms as those used by the trial court in this case. In order to reach this conclusion, we found it necessary to review the historical development of the liability of school districts and Boards of Education, in the context of the step-by-step abolition of governmental immunity in this State.

For more than three quarters of a century Boards of Education have been held liable for their own negligence (Bassett v. Fish, 75 N.Y. 303, 310-312; Herman v. Board of Education, 234 N.Y. 196, 137 N.E. 24, 24 A.L.R. 1065). This liability was well recognized, even during the period when the doctrine of governmental immunity prevailed generally as to the State and its civil divisions. The special liability of Boards of Education was placed upon the ground that, while the Board of Education was a governmental agency, it was not a civil division of the State but a body corporate and that therefore it was answerable for its torts 'to the extent of the funds vested in it * * * by statute or which it is empowered thereby to raise by local taxation' (Herman v. Board of Education, supra, at p. 202, 137 N.E. at p. 26; Lessin v. Board of Education, 247 N.Y. 503, 510, 161 N.E. 160, 163). The liability also was said to rest upon the theory that specific statutory obligations had been imposed upon the Boards of Education and school districts and that they could properly be held liable for the breach of their statutory obligations (Wahrman v. Board of Education, 187 N.Y. 331, 334-335, 80 N.E. 192-193; Lessin v. Board of Education, supra, 247 N.Y. at p. 511, 161 N.E. 163).

The liability thus recognized extended to the maintenance of school premises and facilities in a state of good repair and also extended to the administrative acts of the board. Thus Boards of Education were held liable for injuries due to the defective or dangerous condition of the school premises, or to their failure to promulgate suitable rules and regulations where necessary or to their failure to exercise reasonable care in the selection of competent teachers and supervisors of student activities (Lessin v. Board of Education, supra, at p. 510, 161 N.E. 163). However, it was well settled that a Board of Education was not liable for the negligence of the teachers in the performance of their duties, if the teachers had been selected carefully and appropriate rules for their conduct has been established (Lessin v. Board of Education, supra, p. 510, 161 N.E. 163; Graff v. Board of Education, 258 App.Div. 813, 15 N.Y.S.2d 941, affd. 283 N.Y. 574, 27 N.E.2d 438; Miller v. Board of Education, 291 N.Y. 25, 50 N.E.2d 529). This limitation upon the liability of Boards of Education was based primarily upon the idea that the board had discharged its statutory obligations and that as a governmental agency it was immune from any further liability. Sometimes, the limitation of liability was placed upon the ground that teachers were not ordinary employees and that the doctrine of respondeat superior did not apply to them (Lessin v. Board of Education, supra). Sometimes, there was a merger of the two ideas and it was said that the doctrine of respondeat superior did not apply because of the governmental immunity of the board after it had discharged its statutory obligations (Herman v. Board of Education, 234 N.Y. 196, 137 N.E. 24, 24 A.L.R. 1065, supra). 'Such agents, like policemen in a city, are personally liable for their torts * * * but the corporation is not chargeable with their defaults' (Herman v. Board of Education, supra, p. 201, 137 N.E. p. 25).

During this period, it was held that the State was not liable for the negligence of teachers and supervisors employed in schools operated directly by the State, because the State came under the umbrella of general governmental immunity. When, however, in 1929, section 12-a (now § 8) of the Court of Claims Act was adopted and the State's immunity was abolished, the State became liable for the torts of its agents and employees to the same extent that a private person engaged in the same enterprise would be liable....