Rose v. Board of Ed. of Abilene

• Decision Date: 11 April 1959
• Docket Number: No. 41256,41256
• Citation: Rose v. Board of Ed. of Abilene, 337 P.2d 652, 184 Kan. 486 (Kan. 1959)
• Parties: Dale Edward ROSE, Jr., by his next friend, Dale E. Rose, Appellant, v. BOARD OF EDUCATION OF ABILENE, Kansas, and Harry Adams, Appellees.
• Court: Kansas Supreme Court

Page 652

337 P.2d 652

184 Kan. 486

Dale Edward ROSE, Jr., by his next friend, Dale E. Rose, Appellant, v. BOARD OF EDUCATION OF ABILENE, Kansas, and Harry Adams, Appellees.

No. 41256.

Supreme Court of Kansas.

April 11, 1959.

Syllabus by the Court.

1. In the operation and maintenance of a public school system, including school playgrounds, a board of education is engaged in a governmental function as distinguished from proprietary, and, as such, in the absence of a statute to the contrary, is immune from liability for tort arising out of the negligence or misconduct of its employees in the performance of governmental functions.

2. An exception to the rule stated in the first paragraph of this syllabus is that the doctrine of immunity from liability for tort does not extend to cases where the acts and conduct of the board of education result in creating or maintaining a nuisance.

3. The cloak of immunity from liability for tort, mentioned in the first paragraph of this syllabus, does not extend to an employee of the board of education who, through negligence or other wrongful act, causes injury to another.

4. In an action against a board of education and one of its employees to recover for personal injuries sustained by a six-year-old boy when he stepped into live coals resulting from the burning of a stump on the school playground by the employee, and which had been left unextinguished and unattended by the employee, the record is examined and, all as fully set forth in the opinion, it is held: As to defendant board of education the petition did not state a cause of action and the board's demurrer thereto was properly sustained. Further held: As to defendant employee the petition stated a cause of action and his demurrer thereto was erroneously sustained.

Horace A. Santry, Salina, Joseph B. Crowther, Salina, on the briefs, for appellant.

John H. Lehman, Abilene, D. V. Romine and William A. Guilfoyle, Abilene, on the briefs, for appellees.

PRICE, Justice.

This was an action by a six-year-old boy, through his father, against the board of education of Abilene and one of its employees to recover for personal injuries sustained by plaintiff when he stepped into hot burning coals resulting from the burning of a tree stump by the employee on the school playgrounds.

Defendants' joint demurrer on the ground the petition did not state facts sufficient to constitute a cause of action against defendants, or either of them, being sustained, plaintiff has appealed.

Briefly summarized, the petition alleges the following:

Defendant board of education is a body corporate and is in supervisory charge of the educational system of the public schools of Abilene. At all times material, defendant Harry Adams was employed as a custodian by the board, and that all acts referred to and done by him were done as the agent and servant of the board, and that such acts were within the scope of his authority and employment.

On or about August 7, 1956, defendant Adams, while acting for and on behalf of defendant board, burned out a tree stump on the playground of the McKinley Public School, the same being a part of the school system of the city of Abilene and under supervision and control of defendant board. As a result of such burning, a hole in the playground was created and live fire and coals were left in the hole in the stump with a covering of ashes on the top thereof. Plaintiff, who resided in a home adjoining the school, was in the habit of playing with other neighborhood children on the playground in question. While playing on the grounds he stepped into the hole in the stump, which had been left unattended by defendant Adams, and received severe burns on his foot and ankle from the hot and live coals.

It is then alleged that his injuries were proximately and directly sustained as a result of the negligence and carelessness of defendants, and both of them, in that they left an unattended fire on a public school-ground when they knew, or should have known, that the area was being utilized by children of tender age; that defendants left the fire in such a manner that its existence could not be perceived, causing it to be hazardous to users of the playground; that defendants negligently and carelessly failed to maintain the playground in a safe condition; that defendants negligently and carelessly permitted the playground to be in a condition which they knew, or should have known, was dangerous to the users thereof, and particularly the plaintiff, and that defendants negligently and carelessly maintained upon the playground a burnedout stump containing live fire.

Recovery was sought in the amount of $5,000, but for our purposes allegations concerning the nature and extent of the injuries and medical expense need not be related.

The sole question presented is whether the petition states a cause of action against defendant board of education and its employee, or either of them.

We first discuss the question whether the petition states a cause of action against defendant board of education.

Concededly, a board of education is a quasi-municipal corporation and its operation of a public school system, including school playgrounds, constitutes the performance of a governmental function as distinguished from proprietary, and, with respect to tort liability, is governed by the same rules applicable to a city or other governmental instrumentality engaged in a governmental function. The general rule of law in this state, as elsewhere, is that in the absence of a statute imposing liability a city is not liable in tort for the negligence or misconduct of its officers or employees in the performance of governmental functions. Rhodes v. City of Kansas City, 167 Kan. 719, 208 P.2d 275, and Steifer v. City of Kansas City, 175 Kan. 794, 797, 267 P.2d 474.

With specific reference to public schools, the rule is well settled that, subject to certain exceptions and limitations, school districts, school boards or similar agencies or authorities in charge of public schools, are immune from tort liability in the absence of a statute to the contrary, either for their own torts or those of their officers, agents or employees, while engaged in school or educational affairs of a governmental character. 47 Am.Jur., Schools, § 56, p. 334 [and see notes under § 56, p. 27, of the 1958 Cumulative Supplement]; 78 C.J.S. Schools and School Districts § 320b, p. 1323; annotation on the subject found at 160 A.L.R. 7; Lumber Co. v. Elliott, 59 Kan. 42, 51 P. 894; McGraw v. Rural High School, 120 Kan. 413, 243 P. 1038, and Jones v. City of Kansas City, 176 Kan. 406, 408, 409, 271 P.2d 803. (We are cited to no statute, and know of none, imposing liability on a school...