Hartmann v. Maplewood School Transp. Co.

• Citation: 106 N.J.Super. 187,254 A.2d 547
• Parties: Kenneth HARTMANN, an infant, by his guardian ad litem, Edward R. Hartmann, and Edward R. Hartmann and Elizabeth L. Hartmann, individually, Plaintiffs, v. MAPLEWOOD SCHOOL TRANSPORTATION CO., a New Jersey corporation, Board of Education, Townships of Maplewood and South Orange, and T. William Vail, Defendants.
• Decision Date: 18 June 1969
• Court: Superior Court of New Jersey

Page 187

106 N.J.Super. 187

254 A.2d 547

Kenneth HARTMANN, an infant, by his guardian ad litem Edward R. Hartmann, and Edward R. Hartmann and Elizabeth L. Hartmann, individually, Plaintiffs, v. MAPLEWOOD SCHOOL TRANSPORTATION CO., a New Jersey corporation, Board of Education, Townships of Maplewood and South Orange, and T William Vail, Defendants.

Superior Court of New Jersey Law Division.

June 18, 1969.

Arnold L. Koster, Rahway, for plaintiffs (Shevick & Ravich, Rahway, attorneys).

Harold I. Braff, East Orange, for defendant Board of Education (Braff, Litvak & Ertag, East Orange, attorneys).

Hugh J. O'Gorman, South Orange, for defendant Maplewood School Transp. Co. (Cunneen & O'Gorman, South Orange, attorneys).

FULOP, J.S.C.

This is an action for a declaratory judgment. Plaintiffs move for summary judgment in their favor and defendant Board of Education, Townships of Maplewood and South Orange, moves for summary judgment in its favor. The other defendants have filed no brief, but defendant Maplewood School Transportation Co. joins in plaintiffs' contentions.

The case arises as follows. On May 2, 1966 the infant plaintiff Kenneth Hartmann, then 15 years of age and a resident of Maplewood, was a pupil in the school system operated by the defendant Board of Education of South Orange and Maplewood (hereinafter 'board of education'). By arrangement between defendant board of education and the Summit Board of Education plaintiff and other pupils attended special classes for slow learners at the Summit Junior High School. Defendant Maplewood School Transportation Co. (hereinafter 'bus company') transported the children under a contract with defendant board. On the day in question a bus carrying plaintiff and other pupils and operated by defendant Vail, an employee of the bus company, left the roadway on Broad Street in Summit and struck a tree. The infant plaintiff was hopelessly crippled for life.

Plaintiffs instituted an action in this court for damages for the injuries and per Quod damages against the same parties who are defendants in this action. The negligence action is still pending awaiting trial. The bus company is insured against liability to the limits of $100,000 for each person injured and $300,000 for each accident. The insurer has offered the full amount of its policy coverage, I.e $100,000, to plaintiffs in settlement. The board of education has indicated no interest in contributing toward settlement.

Plaintiffs and their attorneys believe that the damages far exceed $100,000. They believe that neither the bus company nor Vail has assets sufficient to respond to a substantial judgment in excess of the policy amount. They seek to persuade the board of education to contribute to settlement. The purpose of this action is to establish that the board of education is legally liable under N.J.S. 18A:16--6, N.J.S.A. to indemnify Vail for any sum recovered against him by plaintiffs. Plaintiffs reason that if they recover a judgment against Vail in excess of insurance coverage, and if it is uncollectible against Vail and the bus company, they may reach Vail's cause of action for indemnification and compel payment by the board of education. They argue that if the right of Vail to indemnity is established now, the board of education will be persuaded to contribute to the settlement of the negligence action.

I have grave doubt about the appropriateness of the declaratory judgment procedure. However, in view of the decision in LeFelt v. Nasarow, 71 N.J.Super. 538, 177 A.2d 315 (Law Div.1962), affirmed o.b. 76 N.J.Super. 576, 185 A.2d 217 (App.Div.1962) , certification denied LeFelt v. Aetna Ins. Co., 39 N.J. 86, 187 A.2d 600 (1963), I shall deal with the merits.

N.J.S. 18A:39--2, N.J.S.A., empowers each board of education to provide transportation for pupils by a bus or buses owned by it or, in the alternative, to enter into contracts for such transportation. N.J.S. 18A:39--6, N.J.S.A. requires that liability insurance covering every bus transporting pupils and the drivers thereof to limits prescribed by the State Board of Education by provided by the local board as to its buses, or by the contractor as to buses operated under contract. Defendant board chose to contract for the transportation. The bus company provided the required liability coverage. Vail was an employee of the bus company.

The statute relied upon by plaintiffs is N.J.S. 18A:16--6, N.J.S.A. which reads as follows 'Indemnity of officers and employees against civil action.

Whenever any civil action has been or shall be brought against any person holding any office, position or employment under the jurisdiction of any board of education, including any student teacher, for any act or omission arising out of and in the course of the performance of the duties as such office, position, employment or student teaching, the board shall defray all costs of defending such action, including reasonable counsel fees and expenses, together with costs of appeal, if any, and shall save harmless and protect such person from any financial loss resulting therefrom; and said board may arrange for and maintain appropriate insurance to cover all such damages, losses and expenses.'

This statute is the current form of a series of statutory provisions for the protection of school employees. The first of these was L.1937, c. 125, which required boards of education to furnish counsel and defray designated legal expenses for 'Any teacher, school nurse, school dentist, principal, supervisor, supervising principal, superintendent or janitor in any of the public schools of this State, against whom an action in damages is instituted for any act or acts arising out of, or in the course of his or her employment, * * *' L.1938, c. 311, required every school board 'to save harmless and protect all teachers and members of supervisory and administrative staff from financial loss arising out of' any claim for damages for negligence or other act resulting in accidental bodily injury incurred while the employee was acting within the scope of his employment or under the direction of the board. The board was given the option to provide insurance or furnish the protection out of its own funds.

The statement accompanying the 1938 bill read as follows:

'STATEMENT.

The matter of teacher liability for accidents resulting to pupils under school control has been much discussed during the past two or three years. It is the belief of many teachers that they may be held financially responsible if a child slips in a classroom or gymnasium and becomes injured or if accidents happen to children while participating in manual training or similar types of activities. Cases of other states have been cited to show that teachers may be liable for injuries due to alleged negligence by temporarily leaving a classroom or leaving defective playground apparatus available, by the use of which a child is injured. This feeling of liability and the fact that teachers may lose their savings of a number of years because of suits brought against them for injuries has caused much perturbation of mind and has resulted in the belief that boards should protect them against such liability resulting in the course of their duties. The New Jersey legislature in 1937 provided that boards of education should pay the counsel fees for teachers who are sued for injuries resulting from other than corporal punishment. The New York legislature in 1937 adopted an act almost identical to the above bill.'

The 1938 statute became N.J.S.A. 18:5--50.4. It was amended by L.1955, c. 85, and again by L.1965, c. 205 and L.1967, c. 167. The provision was incorporated as N.J.S. 18A:16--6, N.J.S.A....