Levandoski v. Jackson County School Dist., 48546

• Citation: 328 So.2d 339
• Decision Date: 16 March 1976
• Docket Number: No. 48546,48546
• Parties: Georgette LEVANDOSKI, Administratrix of Estate of Rose Marie Levandoski, Deceased v. JACKSON COUNTY SCHOOL DISTRICT et al.
• Court: United States State Supreme Court of Mississippi

Page 339

328 So.2d 339

Georgette LEVANDOSKI, Administratrix of Estate of Rose Marie

Levandoski, Deceased v. JACKSON COUNTY SCHOOL DISTRICT et al.

No. 48546.

Supreme Court of Mississippi.

March 16, 1976.

Levi, Wilson & Denham, P.A., Ocean Springs, for appellant.

Eaton, Cottrell, Galloway & Lang, Gulfport, Megehee, Brown & Williams, Pascagoula, for appellees.

Before GILLESPIE, INZER and ROBERTSON, JJ.

ROBERTSON, Justice.

Georgette Levandoski, Administratrix of the Estate of her minor daughter, Rose Marie Levandoski, Deceased, brought suit against the Jackson County School District; the Board of Education of the Jackson County School District; M. H. Mallette, Jackson County Superintendent of Education; St. Martin Attendance Center; the Trustees of St. Martin Attendance Center; Richard Vogle; Charles Duffie; Burl E. Cooley; Mrs. Kenneth R. McGill; and Mrs. Rebecca Dowdle, in the Circuit Court of Jackson County to recover damages for the wrongful death of Rose Marie.

On motion to quash process and dismiss the action because of immunity from suit (when acting in their official capacities) by reason of governmental sovereignty, this action was dismissed as to Jackson County School District, Jackson County School District Board of Education, M. H. Mallette, Superintendent of Education of Jackson County, St. Martin Attendance Center, and Trustees of St. Martin Attendance Center. Plaintiff does not appeal from the order dismissing these defendants.

M. H. Mallette, individually, Richard Vogle, head principal, Charles Duffie, acting principal of St. Martin Junior High School, Burl E. Cooley, Principal, who was absent and at another attendance center on February 1, 1973, Mrs. Kenneth R. McGill and Mrs. Rebecca Dowdle, teachers, filed separate demurrers to the amended declaration of administratrix, each demurrer stating:

'1. The said Amended Declaration fails to state a cause of action as to this defendant.

'2. The Amended Declaration fails to charge any negligence on the part of this defendant which could have caused or proximately contributed to the death of Rose Marie Levandoski.'

The demurrer of each defendant was sustained by the circuit court 'for the reason that the Amended Declaration fails to state a cause of action against the said defendants', and the amended declaration dismissed. Plaintiff appeals.

In her amended declaration, the administratrix alleged:

'On February 1, 1973, the deceased (13-year-old Rose Marie) had a math class from 12:00 to 12:50. Thereafter, she remained in the same classroom for her next class, an English Class which was to be taught by the Defendant, Mrs. Kenneth R. McGill. During the ten minute break from 12:50 to 1:00 P.M. between the Math and English classes, Miss Levandoski left her books in and on her desk and her coat and her purse on the top of her desk and clearly within the visibility of any person in the classroom; she left the classroom at this time and was not seen alive again.'

'Thereafter, the Defendant, Mrs. Kenneth R. McGill and Defendant, Rebecca Dowdle, in this respective order, conducted classes as described in the previous paragraph in the aforesaid classroom. At no time was Rose Marie Levandoski properly reported absent even though she had not returned to the classroom and her absence was repeatedly brought to the attention of these two Defendants. Miss Levandoski's absence, further, was not communicated to her parents by any of the school authorities and no inquiries as to her whereabouts nor search for her person was instituted by said authorities. Plaintiff would show that it was within the capability of these Defendants and other Defendants listed in this suit to have determined the absence of Rose Marie Levandoski within ten minutes of the beginning of class at 12:50 on February 1, 1973, and that this would have been the logical course of action and the reasonable prudent course of action to take under the circumstances. Plaintiff would further show that at the time of the disappearance of Miss Levandoski it was a well known fact within the community and within the school system as a whole that the area surrounding the school was at times frequented by characters whose behavior adversely affected the well-being of the students within the school system. Further, there was widespread known abuse of the existing absentee reporting system, and it was well known to the Defendants named herein that the well-being of unauthorized absentees and their safety was jeopardized by the existing system together with the state of conditions existing around the said school at the time of the disappearance of Miss Levandoski. Plaintiff would further show that it is probable that if the disappearance of Miss Levandoski had been promptly reported and the proper precautions had been taken to minimize the risk involved to her safety and well-being, that she would not have come to any harm, but as stated before her absence was never properly noted by the teachers and was never reported either to the police, her parents, or the appropriate school authorities who might have instituted a widespread search for Miss Levandoski.'

'Thereafter, on or about February 21, 1973, Miss...