Sawaya v. Tucson High School Dist. No. 1 of Pima County

• Decision Date: 15 March 1955
• Docket Number: No. 5860,5860
• Citation: 78 Ariz. 389,281 P.2d 105
• Parties: Edward SAWAYA, Jr., by his guardian ad litem, Edward Sawaya, and Edward Sawaya, Appellants, v. TUCSON HIGH SCHOOL DISTRICT NO. 1 OF PIMA COUNTY, Arizona, Appellee.
• Court: Arizona Supreme Court

Page 105

281 P.2d 105

78 Ariz. 389

Edward SAWAYA, Jr., by his guardian ad litem, Edward Sawaya, and Edward Sawaya, Appellants, v. TUCSON HIGH SCHOOL DISTRICT NO. 1 OF PIMA COUNTY, Arizona, Appellee.

No. 5860.

Supreme Court of Arizona.

March 15, 1955.

Rehearing Denied April 12, 1955.

Cole & Barry, Tucson, for appellants.

Darnell, Robertson, Holesapple & Spaid, Tucson, for appellee.

PHELPS, Justice.

This is an appeal from a judgment of the Pima County Superior Court entered upon an order of dismissal of said cause of action upon the ground that the complaint failed to state a claim upon which relief could be granted.

The complaint alleges that on September 19, 1952, Edward Saways, Jr., attended a football game between the Amphitheatre High School located at Tucson, and Mesa High School, which was played at the stadium of the Tucson High School District, appellee herein. On this particular night the Tucson High School District had leased the stadium for the game for the sum of $300. The rental therefor was paid by the Amphitheatre High School District. The school districts involved constitute three separate and distinct entities. Those admitted to the stadium for the purpose of witnessing the football game including plaintiff paid an admission fee.

The complaint further alleges that defendant Tucson High School District had negligently allowed the railing on the east grandstand near the south end to fall into and remain in a state of disrepair so that it become dangerous, and that defendant had known for a long time prior thereto that said railing was in such disrepair and that it constituted a condition of danger.

That as a proximate result of the negligence of defendant in permitting such railing to become and remain in disrepair the plaintiff Edward Sawaya, Jr., fell from said grandstand to the ground and sustained serious and painful personal injuries, to wit, a fractured spine causing temporary total disability and permanent partial disability requiring him to incur heavy medical expense and to sustain loss of wages.

Upon appeal to this court plaintiff has presented only assignement of error which reads as follows:

'The lower court erred in rendering judgment for defendant on defendant's motion to dismiss for the following reasons:

'1. All of the elements of liability are alleged in plaintiff's complaint;

'2. The ground upon which said motion was based, i. e., school district immunity from liability for torts is not applicable under the facts pleaded since the defendant was acting in his proprietary capacity; and

'3. The said rule of immunity is contrary to the spirit of the laws of the State of Arizona, is against public policy, and is not required by legislative or constitutional authority.'

In arriving at a decision in this case we are bound to consider as true all the material allegations of the complaint. The sole question to be determined here in whether a school district under the circumstances of this case is immune from liability for the torts the school district in failing to keep the stadium in repair and safe for the use of the public.

We believe the great weight of authority to be that the school district is a quasi-public corporation and acts as a governmental agency for the sole purpose of furnishing educational facilities and administering the public educational system of the state and hence is not liable for the negligence of its officers, agents, or employees. We have so held in the case of School District No. 48 v. Rivera, 30 Ariz. 1, 243 P. 609, 45 A.L.R. 762. The case of Bang v. Independent School District No. 27 of St. Louis County, 177 Minn. 454, 225 N.W. 449, cites cases from many jurisdictions adhering to this view.

Many of the decisions sustaining the rule of nonliability admit that it is a harsh one but simply give as a reason for sustaining it that the school district was in the exercise of a governmental function at the time the tort was alleged to have been committed and the injury sustained. They justify their refusal to change the rule upon the ground that under the common law there was no liability for tort against a school district in the absence of statute creating such liability and that therefore the question is legislative and not judicial. A few of the cases to this effect are Lovell v. School District No. 13, Coos County, 172 Or. 500, 143 P.2d 236; Krutili v. Board of Education of Butler District, 99 W.Va. 466, 129 S.E. 486. There are many other jurisdictions which make the same pronouncement. They cling to this rule notwithstanding the fact that in the British Empire nonliability of school districts for their torts no longer obtains. See 160 A.L.R. p. 84, annotation II (f), School Tort Liability and cases cited under Note 14 thereof. Steveson v. Toronto Board of Education, 46 Ont.L.R. 146, 49 D.L.R. 673; Renwick v. Vermillion Center School District, 3 Alberta L.R. 291, and many others.

To escape the harshness of the rule of governmental immunity three states, New York, Washington and California, have enacted statutes creating liability for tort even though the tort was committed in the exercise of a governmental function. Other courts are taking the view that even though a county is merely a subdivision of the state the activities of which are primarily governmental, they do at times exercise private and proprietary functions which result in loss of immunity from liability. Among these cases are Coburn v. San Mateo County, C.C., 75 F. 520; Hannan v. St. Louis County, 62 Mo. 313, decided in 1876 held that where a county was laying a water pipe from the water mains of a nearby city to an insane asylum, maintained by the defendant county, was in the exercise of a proprietary function and therefore liable. And in the case of Henderson v. Twin Falls County, 56 Idaho 124, 50 P.2d 597, 101 A.L.R. 1151, it was held that where a county had authority under a statute to build a hospital for the care of its poor and allowing the reception of pay patients therein, in maintaining such an institution it was acting in a proprietary capacity and was liable for injuries suffered by the complainant as the result of the negligence of a nurse. In the case of Jacoby v. Chouteau County, 112 Mont. 70, 112 P.2d 1068, 1070, it is held that the county was liable for damages for tort where it was operating a ferry for use of the general public in crossing a river for the reason that it was acting in a proprietary capacity. The judgment of the trial court awarding damages was sustained. In that case it quotes from 20 C.J.S., Counties, § 215, as follows:

"On the other hand, a county, if amenable to suit, is liable for its torts when it is acting, not as a governmental agent, but as a private corporation, or in a proprietary capacity, or is performing special duties imposed on it with its consent, or voluntarily assumed by it, or when the tort amounts to an appropriation of property."

The court then proceeds to state that:

'Some courts do not recognize that a county ever performs proprietary functions, but the weight of authority is otherwise. * * *'

In the case of Rhoades v. School District No. 9, Roosevelt County, 115 Mont. 352, 142 P.2d 890, 160 A.L.R. 1, denying recovery for injuries sustained by a paying spectator while attending a basketball game at the gymnasium a dissenting opinion written by Justice Erickson criticising the adherence to the doctrine of nonliability upon the ground that it was based upon the divine right of kings who could do no wrong, is worthy of study. In the case of Bingham v. Board of Education of Ogden City, 118 Utah 582, 223 P.2d 432, decided in 1950 in which the majority opinion adhered to the doctrine based upon the divine right of kings and that the king can do no wrong, Justice Wolfe wrote a very strong dissenting opinion which should influence the courts of the United States in breaking away from a doctrine based upon a theory which is as much out of joint with the times as the theory that the earth is flat. Abraham Lincoln stated more than a century ago that

'It is as much the duty of government to render proper justice against itself, in favor of its citizens, as to administer the same between private individuals.' Belli Modern Trial, Vol. 1, section 40, p. 228.

We believe that the majority of text book writers are of the view that such a doctrine has no application in this country especially in view of the fact that the reasons assigned by the courts for its perpetuation no longer exist. This seems to be especially true since liability insurance is available to state government and to its subdivisions for the protection of persons who may become injured as a result of a tort committed by an officer, agent or employee of government.

In view of the above observations we are certainly not inclined to extend the doctrine of nonliability of governmental subdivisions any further than we are required to do. Section 54-416, A.C.A.1939, sets forth the powers and duties of the boards of trustees of school districts. Subsection 11 thereof provides that:

'The board may permit the use, under its direction, and subject to such conditions, rules and regulations as it may prescribe, of the school house or houses within the district as a civic center for such district, where the citizens, parent teachers' association, Camp Fire girls, Boy Scout troops, clubs and associations formed for recreational, educational, political, economic, artistic or moral activities of the district may engage in supervised recreational activities and where they may meet and discuss, from time to time, as they may desire, any and all subjects and questions which, in their judgment, may appertain to the educational, political, economic, artistic and moral interests of the citzens of the respective communities in which they reside; * * *.'

This portion of section 54-416, supra, we construe to authorize the board of education to lease the stadium for the purposes for...