Howard v. Tacoma School Dist. No. 10, Pierce County

• Decision Date: 17 November 1915
• Docket Number: 12323.
• Citation: 88 Wash. 167,152 P. 1004
• Parties: HOWARD v. TACOMA SCHOOL DIST. NO. 10, PIERCE COUNTY.
• Court: Washington Supreme Court

152 P. 1004

88 Wash. 167

HOWARD v. TACOMA SCHOOL DIST. NO. 10, PIERCE COUNTY.

No. 12323.

Supreme Court of Washington, En Banc.

November 17, 1915

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Francis J. Howard against Tacoma School District No. 10 Pierce County. Judgment for plaintiff, and defendant appeals. Affirmed.

Lorenzo Dow, of Tacoma, for appellant.

Henry W. Pennock, of Seattle, amicus curiae.

Kelly &amp MacMahon, of Tacoma, for respondent.

ELLIS J.

Action for damages for personal injuries. The facts are as follows In the basement of the Oakland school building, in the city of Tacoma, the defendant installed and maintained two ladders for the use of the school children in physical exercise. One was 7 feet high, placed perpendicularly against the wall; the other horizontal, connecting with the first, and extending out over the basement floor for a distance of about 30 feet. In their use it was intended that the children should climb onto the horizontal ladder by means of the perpendicular ladder and swing from the rungs by their hands, passing out reaching from rung to rung; the purpose being to develop the muscles of the arms, shoulders, and chest. The ladders were not intended for the use of the small children. These were cautioned not to climb upon them. The floor of the basement was of concrete. The toilets were in the basement, and also the lockers, in which the children kept their lunches and wraps. A bench ran around the wall; the basement being used as a playroom in the rainy season. The concrete floor under the ladder was not covered with mats, nor was there any net or other contrivance to prevent injury in case of a fall. The plaintiff was a little girl about 6 years old. On the day of the accident, when school was dismissed, she marched out with the other children and went into the basement to visit the toilet. On her way out, noticing the ladder, she climbed upon it, and, becoming exhausted, fell, breaking her arm. At appropriate times motions for a nonsuit and for a directed verdict for the defendant were interposed. Both were overruled. The jury returned a verdict for the plaintiff for $500. From the judgment entered thereon the defendant appeals.

As preliminary to the main questions involved, we shall first dispose of the appellant's claims that the school district was guilty of no negligence, and that in any event the injured child was guilty of such contributory negligence as to preclude a recovery. On the primary question of negligence the testimony of two or three professional physical directors was clear that it is customary to place mats 2 1/2 to 4 inches thick beneath such ladders, in order to break falls which are always liable to occur in their use, and that such mats minimize the danger of injury. There was also evidence that such ladders should be no higher than to be reached by jumping from the floor, and that these were too high for the reasonably safe use of the children. It is also argued, and the thing seems self-evident, that the upright ladder should have been so constructed as to be removed when not in use, so that small children, for whose use the ladders were not intended, could not climb upon the horizontal ladder in the absence of supervisors.

On the question of contributory negligence, it fairly appears that the injured child was unusually bright for her years. She testified that the teacher had told her not to climb upon the ladders and that she knew it was wrong for her to do so. She had, however, often seen older children play upon these ladders, and it is matter of small wonder that a child of her age would forget such caution and attempt to emulate the performances of the older children. Whatever her knowledge of the rules, and of the wrong of disobedience, it can hardly be said that a child of 6, however bright, had such a realizing sense of the danger as to be guilty of contributory negligence as a matter of law in attempting the usual use of this inviting apparatus. The questions of negligence and contributory negligence were clearly for the jury.

The appellant contends that, in the maintenance of the ladders in question for the physical development of the children, the school district was exercising a governmental function, and is therefore immune from liability for injuries resulting from negligence of its officers or agents in connection therewith. The respondent contends that the school district was not exercising a governmental function, but a proprietary or corporate function, in the premises, and was therefore liable, and that, even if it be conceded that the function was governmental, the school district is made liable for negligence in the premises by the provision of the statute, Rem. & Bal. Code, §§ 950, 951, as construed by this court in Redfield v. School District, 48 Wash. 85, 92 P. 770. Two questions are thus presented: (1) Was the school district acting in a governmental capacity and hence not liable in an action at common law? (2) If so, is it liable under the statute?

1. Unlike cities and towns, school districts, though corporate entities and classed as municipal corporations, are essentially only quasi municipal corporations. State ex rel. School Dist. v. Grimes, 7 Wash. 270, 34 P. 836. They are mere arms of the state for the administration of its school system. Practically all of thein functions are therefore governmental

'They are governmental agencies, and it is, to say the least, doubtful if they are in any respect anything else, or have any rights that can be called private.' Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639, 643, 92 N.W. 289, 290; Whiteheld v. Board of Education, 139 Mich. 490, 102 N.W. 1028; Freeland v. Stillman, 49 Kan. 197, 30 P. 235; Beach v. Leahy, 11 Kan. 23; 1 Dillon, Municipal Corporations (5th Ed.) § 37, p. 67.

This is certainly true as to providing and maintaining school grounds, school buildings and appliances, and all those things which it is permitted the school boards to acquire and administer through the expenditure of public school funds. Such is the net result reached by Chief Justice Gray after a most exhaustive and discriminating review of the authorities, both English and American, in the leading case of Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332. Although in Massachusetts at that time the duty to provide schoolhouses and equipment was imposed by general law upon all towns and cities of the commonwealth, such towns and cities were in substance held to be pro tanto nothing more than quasi corporations, exercising a portion of the sovereign power of the state, not for their own benefit, but as agents of the public. In that case it was therefore held that a child attending a public school, who was injured by reason of the unsafe condition of a staircase in the schoolhouse, could not maintain an action against the city for damages; there being no liability at common law, and no statute declaring a liability. Judge Dillon states the rule as follows:

'When a municipal corporation is charged by charter or statute with the duty of erecting and maintaining public schools for the education of the children of the municipality, the weight of authority is to the effect that in the exercise of the power so conferred it performs a public or governmental duty, and not a special corporate or administrative duty, as distinguished from a state or public duty, and it is not impliedly liable for the wrongful acts and negligence of its officers or agents in maintaining and repairing school buildings. In the case of school districts, boards of education, and other quasi corporations created for the limited purpose of directing and controlling school matters, exemption from liability, in some jurisdictions at least, is placed upon the twofold ground (first) that these bodies are only quasi corporations and (second) that they perform only a public and governmental duty and do not act in a private or corporate capacity in erecting and maintaining school buildings.' 4 Dillon, Municipal Corporations (5th Ed.) § 1658, p. 2888.

See, also, Kinnare v. Chicago, 171 Ill. 332, 49 N.E. 536; Bigelow v. Inhabitants of Randolph, 14 Gray (Mass.) 541; Howard v. City of Worcester, 153 Mass. 426, 27 N.E. 11, 12 L. R. A. 160, 25 Am.St. Rep. 651; Ernst v. City of West Covington, 116 Ky. 850, 76 S.W. 1089, 63 L. R. A. 652, 105 Am. St. Rep. 241, 3 Ann. Cas. 882; Clark v. City of Nicholasville (Ky.) 87 S.W. 300; Folk v. City of Milwaukee, 108 Wis. 359, 84 N.W. 420; Freel v. School City of Crawfordsville, 142 Ind. 27, 41 N.E. 312, 37 L. R. A. 301; Lane v. District Township of Woodbury, 58 Iowa, 462, 12 N.W. 478; State, use of Weddle, v. Board of County School Commissioners, 94 Md. 334, 51 A. 289; Diehm v. City of Cincinnati, 25 Ohio St. 305; Ford v. School Dist., 121 Pa. 543, 15 A. 812, 1 L. R. A. 607.

The rule of nonliability at common law applies even in case of duties not imposed nolen volens, but also as to those voluntarily assumed by permission of the state; the ground of immunity being, not that the duty is compulsory, but that it is public. Wixon v. Newport, 13 R.I. 454, 43 Am. Rep. 35. The same rule of immunity at common law applies in relation to defects in school grounds used as playgrounds for the recreation of the school children as obtains in case of school buildings. Finch v. Board of Education of Toledo, 30 Ohio St. 37, 27 Am. Rep. 414; State, use of Weddle, v. Board of County Commissioners, supra; Bigelow v. Inhabitants of Randolph, supra.

We are asked, 'How can it be said that the physical development of children is a function of government?' The answer seems obvious: Just for the same reason that it can be said that the mental development of children is a function of government. Both...