Duncan v. Koustenis

• Citation: 260 Md. 98,271 A.2d 547
• Decision Date: 11 December 1970
• Docket Number: No. 138,138
• Parties: Louis P. DUNCAN, Jr., Infant, etc. et al. v. Demitrios KOUSTENIS.
• Court: Court of Appeals of Maryland

Page 98

260 Md. 98

271 A.2d 547

Louis P. DUNCAN, Jr., Infant, etc. et al. v. Demitrios KOUSTENIS.

No. 138.

Court of Appeals of Maryland.

Dec. 11, 1970.

Howard E. Goldman, Laurel (Melbourne & Goldman, Laurel, on the brief), for appellants.

James P. Salmon, Upper Marlboro (Sasscer, Clagett, Channing & Bucher, Upper Marlboro, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN and SINGLEY, JJ.

BARNES, Judge.

The principal question presented to us in this appeal is whether the defense of governmental immunity is available as a complete defense to the appellee, Demitrios Koustenis, defendant below, a teacher employed by the Prince George's County Board of Education (Koustenis or teacher), to a tort action instituted by the infant appellant, Louis P. Duncan, Jr., and others against the teacher to recover damages allegedly proximately caused by the teacher's negligence.

The tort action was filed on September 19, 1969, in the Circuit Court for Prince George's County by the infant plaintiff by this father and next friend, Louis P. Duncan, Sr. and individually, against the Board of County Commissioners of Prince George's County (County Board) and the Board of Education of Prince George's County (School Board) as well as against the teacher. The declaration alleged substantially as follows:

In the first count, that the infant plaintiff on June 2, 1969, was a junior high school student lawfully attending an industrial arts class in the G. Gardner Shugart, Jr. High School in Hillcrest Heights, Prince George's County, taught by the defendant Koustenis who had the duty to inspect, adjust or repair the power tools in his classroom, provised for student use, in a safe and proper condition. One of such tools was an automatice planer. Due to the negligence of Koustenis, the guard on the automatice planer was improperly secured making it impossible to provide its intended protection. While the infant plaintiff on June 2, 1969, was operating the automatic planer with due care, because of the teacher's negligence in not inspecting, adjusting or repairing the automatic planer, the guard failed to keep the fingers of the infant plaintiff from coming in contact with the exposed moving cutting edge-thereby severing parts of two fingers on his left hand which caused excruciating pain and suffering and permanent injuries. The damages claimed were $250,000.00.

Count Two set forth the claim for the father of the infant plaintiff. It incorporated the allegations of Count One and alleged that as a direct and proximate result of the negligence of the defendants and the resulting injuries to his infant son, the father had been compelled to pay large sums of money for hospitalization, medicines and other medical expenses, and lost his infant son's services. The damages claimed in Count Two were $50,000.00, against the defendants, jointly and severally.

Count Three incorporated all of the allegations of Count One and sued all of the defendants because the teacher was a duly authorized agent, servant and employee of the County Board and of the School Board, acting within the scope of his employment, whereby the infant plaintiff by his father and next friend claimed $1,000.00 damages. A jury trial was elected.

The County Board and the School Board each demurred to the declaration and both demurrers were sustained without leave to amend, the latter with the consent of the plaintiffs. The teacher on October 21, 1969, filed a motion relying on a preliminary objection raising the defense of total governmental immunity and alleged that 'while exercising the functions of the Board of Education of Prince George's County, which is immune from such a suit, the defendant is also immune.' The teacher asked that judgment be entered in his favor against the plaintiffs.

After the submission of legal memoranda and the hearing of arguments by the respective parties, the Circuit Court for Prince George's County (Robert B. Mathias, J.) granted the teacher's motion and ordered on January 29, 1970, that a judgment for costs be entered in favor of the defendant Koustenis. A timely appeal was taken to this Court from that judgment.

Although considered by a number of our sister states, the interesting question of whether the defense of governmental immunity is available to a teacher in the public schools is one of first impression in this State.

The doctrine of governmental immunity originated in England on the theory that the king could do no wrong, that he was supreme and could not be subject to another earthly power. In spite of the incongruence of this theory with our republican form of government, the doctrine was adopted in this county. Gedwin v. County Commissioners of St. Mary's County, 256 Md. 326, 260 A.2d 295 (1970). This adoption has been called "one of the mysteries of legal evolution." Muskopf v. Corning Hospital District, 55 Cal.2d 211, 214, 215, 11 Cal.Rptr. 89, 91, 359 P.2d 457, 459 (1961).

The theory of sovereignty remains the basis of school board immunity although additional reasons have been put forth to explain it in terms of our system of government, namely, that funds appropriated to the board are held in trust for school purposes and cannot be expended in payment of tort claims. See, for example, Weddle v. Board of County School Commissioners, 94 Md. 334, 344, 51 A. 289, 291 (1902), in which Judge Briscoe stated for the Court:

'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.'

A reading of the whole opinion, however, indicates to us that this statement by the Court is intended to be considered in connection with the question of whether or not the Legislature by either express provision or by implication had waived the sovereign immunity otherwise enjoyed by the Board of School Commissioners, although the sovereign immunity of the Board is not expressly mentioned in the opinion, but is rather the assumed basis on which the opinion is predicated. This becomes clearer when the prior Maryland cases relied on by the Court-Mayor and City Council of Baltimore v. Pendleton, 15 Md. 12 (1860), Mayor and City Council of Baltimore v. Marriott, 9 Md. 160 (1856) and Anne Arundel County Commissioners v. Duckett, 20 Md. 468 (1864), all involving statutes waiving possible governmental immunity-are considered.

In the later case of Gold v. Mayor & City Council of Baltimore, 137 Md. 335, 112 A. 588, 14 A.L.R. 1389 (1921), in the opinion also written for the Court by Judge Briscoe and citing the Weddle case with approval and following it, the rationale of Weddle becomes clear. In Gold it was stated:

'The immunity or exemption from liability in such cases rests upon the theory that the municipality is in the performance of a public or governmental duty and is the instrumentality of the state, exercising a governmental function. In the absence of statute, expressly or by necessary implication giving the right of action, the municipality is not liable.' (137 Md. at 340, 112 A. at 589)

See also the decision of our predecessors in Clauss v. Board of Education, 181 Md. 513, 524, 30 A.2d 779, 784 (1943). In Clauss, the Weddle case was distinguished from the Clauss case in which the Court held that the Board of Education of Anne Arundel County was subject to the Workmen's Compensation Law, on the ground that:

'While the Legislature has not provided any funds for paying damages recovered in negligence actions by pupils (the Weddle case) it has provided by necessary implication, contained in Section 46 of Article 101, funds to take care of compensation of employees who come within the provisions of the Workmen's Compensation Act.'

In any event, it seems apparent that once the immunity of the School Board is established, the depletion of the public treasury rationale would have no relevance to the question of whether its immunity extends to public school teachers-an independent question-inasmuch as the Doctrine of Respondeat Superior could not be used to pierce the School Board's immunity and thus deplete its public funds.

In light of the contemporary views of rist distribution in the area of tort law and the availability of liability insurance, the doctrine of governmental immunity has fallen into great disfavor. 1959 Duke Law Journal 588, 590. Many states have curtailed the doctrine in relation to school boards by legislative action. Cal. Government Code, § 810 replacing repealed § 903 of Cal.Ed.Code; 1958 Conn.Gen.Stat. § 10-235; Minn.Stat.Ann. § 127.03; N.J.Stat.Ann. § 18:5-50.4; N.Y.Ed.Law, McKinney's Consol. Laws, c. 16, § 2560; Art. 31 N.C.Gen.State, § 143-291 (1969 Cum.Supp.) At least one state has done so by judicial decision. Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89 (1959). Because the doctrine is no deeply ingrained in the 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 in the present case is whether that immunity extends to the individual public school teacher.

The rule in some states is not to extend immunity to government employees when acting negligently on the theory that negligent acts fall outside of their governmental authority. Carr v. Wright, 423 S.W.2d 521 (Ky.1968); Crabbe v. County School Bd. of Northumberland County, 209 Va. 356, 164 S.E.2d 639 (1968); Brooks v. Jacobs, 139 Me. 371, 31 A.2d 414 (1943). In other states immunity is extended in cases of non-feasance but not malfeasance. Fulgoni v. Johnston, 302 Mass. 421, 19 N.E.2d 542 (1939). In Maryland governmental immunity is extended...