Lovell v. School Dist. No. 13
| Decision Date | 14 October 1943 |
| Citation | 172 Or. 500,143 P.2d 236 |
| Parties | LOVELL <I>v.</I> SCHOOL DISTRICT NO. 13, COOS COUNTY, ET AL. |
| Court | Oregon Supreme Court |
Liability of school district, municipal corporation, or school
board, for injury to pupil, notes, 9 A.L.R. 911; 14 A.L.R. 1392
21 A.L.R. 1328; 24 A.L.R. 1070; 56 A.L.R. 164; 66 A.L.R. 1281
See, also, 47 Am. Jur. 335
56 C.J., Schools and School Districts, § 622
Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.
Appeal from Circuit Court, Coos County.
Personal injury action by Clark D. Lovell, guardian of Mark D. Lovell, against School District No. 13, of Coos County, Oregon, and others. From a judgment dismissing the action, plaintiff appeals.
AFFIRMED.
William E. Walsh, J.W. McInturff, and Willard W. McInturff, all of Marshfield, for appellant.
John G. Mullen, of North Bend, and J.B. Bedingfield and David Grant, Jr., both of Marshfield, for respondents.
This is an action to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant school district and its directors. A general demurrer to the complaint was sustained and, upon refusal of the plaintiff further to plead, the action was dismissed.
The defendants are charged with negligence in failing to maintain a wooden sidewalk on the school premises in a reasonably safe condition and state of repair in that they permitted the boards of the walk to become loose and rotted and the rusted nails thereof to protrude above the level of the same. It is alleged that the sidewalk had been in such dangerous condition for several months prior to the time of the accident and that the defendants knew, or by the exercise of reasonable care and diligence ought to have known, of its condition. It appears from the complaint that, on October 16, 1940, while Mark D. Lovell was in attendance at school as a pupil he, during the recess period, "accidentally stumbled and fell" upon the sidewalk in such manner that one of the protruding nails penetrated his knee thereby causing him serious and permanent injury.
1. The demurrer admits the truth of the material allegations of the complaint and presents the following issues of law: (1) Is a school district liable in tort for failure to maintain such sidewalk in a reasonably safe condition? (2) Are the members of the school board liable for their alleged negligence in failure so to maintain the walk?
2. Appellant concedes that, at common law, a school district would not be liable but contends that the State, by statutory enactment, has imposed liability upon a school district for wrong or injury suffered as a result of its negligence. This is not a new question. Appellant relies upon the following statutory provisions as abrogating the common law rule:
Section 8-702, O.C.L.A.:
"* * * and an action or suit may be maintained against any of the other public corporations in this state mentioned in Section 8-701 in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or commission of such other public corporation; * * *" (Italics ours).
The "other public corporations" mentioned in Section 8-701, O.C.L.A., are "incorporated town, school district, or other public corporation of like character * * *." These statutory provisions have been before this court for construction in Spencer v. School District, 121 Or. 511, 254 P. 357; Lupke v. School District, 130 Or. 409, 275 P. 686; Antin v. Union High School District, 130 Or. 461, 280 P. 664, 66 A.L.R 1271; Ward v. School District, 157 Or. 500, 73 P. (2d) 379; and Blue v. City of Union, 159 Or. 5, 75 P. (2d) 977, and the court has consistently held that the above sections of the statute do not impose any liability for tort against a school district while exercising a governmental function as an agency of the state. Lupke v. School District, supra, however, construed the above sections to impose a liability while the school district was acting in a proprietary capacity and there is strong implication to the same effect in other decisions of this court, notably in Rankin v. School District, 143 Or. 449, 23 P. (2d) 132, of which the writer was the author. The history of these statutory enactments and the various amendments thereto have been heretofore reviewed (see Blue v. City of Union, supra) and there is no need of repetition, notwithstanding the able brief of counsel for appellant maintaining that the court has erroneously construed the same. We adhere to the construction that no liability is imposed upon a school district while acting in a governmental capacity but will, in the interests of certainty of the law, review the question as to whether a school district, in the performance of statutory duties, express or implied, ever acts in a proprietary capacity. Appellant contends that the statute should be so construed as to impose liability whether the school district is acting in a governmental or in a proprietary capacity. Furthermore, it is urged — relying largely upon Lupke v. School District, supra — that the district in the repairing of a sidewalk is exercising a proprietary function.
It is noteworthy that, in every tort action brought against a school district in this state, it has been held, with the exception of the Lupke case, that the district was immune from liability since it was merely exercising a governmental function as an agency of the state.
Spencer v. School District, 121 Or. 511, 254 P. 357, decided in 1927, was a case wherein action was brought against the school district by a minor pupil, through his guardian ad litem, to recover damages for personal injuries. These injuries were sustained as a result of a radiator's overturning and falling against him. Plaintiff alleged that the radiator was negligently placed by defendant in a gymnasium hall used in connection with the school. The court, in holding that there was no liability, said:
"At common law school districts were not liable for personal injuries either to employees or to members of the general public, resulting from the negligent construction or operation of their buildings or grounds."
and quoted with approval as follows from 4 Dillon on Municipal Corporations (5th Ed.) § 1658:
"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 two-fold 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...
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