Sheley v. Board of Public Ed. for City of Savannah and Chatham County

Decision Date19 June 1974
Docket NumberNo. 49044,3,Nos. 1,2,49044,s. 1
Citation132 Ga.App. 314,208 S.E.2d 126
PartiesAlice E. SHELEY v. BOARD OF PUBLIC EDUCATION FOR the CITY OF SAVANNAH AND the COUNTY OF CHATHAM
CourtGeorgia Court of Appeals

Falligant, Doremus & Karsman, Stanley Karsman, Savannah, for appellant.

Basil Morris, Savannah, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

Alice E. Sheley brought suit against the Board of Education for the City of Savannah and County of Chatham seeking recovery of damages for the untimely death of her eight-year-old son, who was a regularly enrolled student at the Thunderbolt Elementary School, operated as a public school by the defendant board of education. She alleged that on March 7, 1973 the cover of the opening of a sanitary septic tank located on the grounds of the school and which served the sanitary system of the school, had been moved and the tank left open so that her child fell into the tank and drowned. She charged that the defendant maintained an attractive nuisance by this open tank and that it had been guilty of wilful and wanton negligence in doing so.

Defendant filed its motion to dismiss on the grounds that the petition failed to state a claim upon which relief could be granted, and that an action of this nature could not lawfully be maintained against the defendant board of education. It also filed its answer and defenses in which it averred that it was an independent school system, operating the public schools of Savannah and of Chatham County in conjunction with the State Board of Education under statutory and constitutional provisions and that it was entitled to governmental immunity from tort actions. It denied that the septic tank had been an attractive nuisance or that it had been guilty of any wilful or wanton negligence, and asserted affirmatively that the septic tank had been installed as a necessity for the operation of the school's sanitary system when the building was constructed and had been approved by the State Board of Education and its authority; that the opening above the ground was 18 18 inches and was kept covered by a sixty-pound cover which children generally were unable to move; that at some time during the night or early morning of March 7 vandals had removed the cover and when school employees discovered it to be missing, searched for it but could not find it, and called in to the maintenance office of the defendant and reported it after having placed a lighter cover over the opening to serve until the regular cover could be replaced by the maintenance people.

When plaintiff's child did not return home at the expected time she came over to make inquiry about him, and a search was instituted for him. He was finally found in the septic tank, but the cover which school employees had placed on it that morning was still in place. Thus, defendant asserts that it was apparent that the child had not fallen into the tank, but that he had been placed there by some unknown force or party.

A hearing was held on the motion to dismiss. It was sustained on each ground, and plaintiff appeals. Held:

1. We affirm. The petition fails to state a claim on which relief can be granted for the reasons:

( a) The septic tank was not an attractive nuisance, which we have held to have no application to ponds, streams or other water hazards, whether natural or artificial. Savannah, F. & W.R. Co. v. Beavers, 113 Ga. 398, 39 S.E. 82, 54 L.R.A. 314; St. Clair v. City of Macon, 43 Ga.App. 598, 159 S.E. 758; McCall v. McCallie, 48 Ga.App. 99(1), 171 S.E. 843; Crawford v. Pollard, 55 Ga.App. 702, 191 S.E. 162; Fickling v. City Council of Augusta, 110 Ga.App. 330, 332, 138 S.E.2d 437; Montega Corp. v. Grooms,128 Ga.App. 333(4), 196 S.E.2d 459.

( b) Allegations of wilful and wanton negligence on the part of the defendant school board do not deprive it of its right to plead and rely upon governmental immunity. City of Savannah v. Jordan, 142 Ga. 409, 83 S.E. 109; Hale v. Davies, 86 Ga.App. 126, 129, 70 S.E.2d 923; Boone v. City of Columbus, 87 Ga.App. 701, 75 S.E.2d 338; Gray v. Mayor, etc. of Griffin, 111 Ga. 361, 36 S.E. 792; Attaway v. Mayor etc. of Cartersville, 68 Ga. 740, 741; Moss v. City Council of Augusta, 93 Ga. 797, 20 S.E. 653; Brown v. City of Union Point, 52 Ga.App. 212, 183 S.E. 78.

2. The defense of governmental immunity is good and demanded a judgment for the defendant. Nabell v. City of Atlanta, 33 Ga.App. 545, 126 S.E. 905; Pollock v. City of Albany, 88 Ga.App. 737, 77 S.E.2d 579; Smith v. Board of Education of City of Marietta, 119 Ga.App. 441, 167 S.E.2d 615; cf. City of Brunswick v. Barrett, 58 Ga.App. 792, 199 S.E. 901; Watson v. City of Atlanta, 136 Ga. 370, 71 S.E. 664. We do not regard the facts of the situation as alleged here to be sufficient to bring it within the category of a nuisance such as was dealt with in Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834, 165 S.E.2d 141, because of differences in the facts appearing. First, it must be observed that the operation of a public school cannot be equated with the operation of a traffic control light. There are no such limitations upon the use of funds for operating street lighting and traffic control as there are concerning public school funds. See in this connection Board of Education of Waycross v. Bates, 114 Ga.App. 343, 151 S.E.2d 524. Moreover, it appears that the Town of Ft. Oglethorpe had known of the defective condition of the traffic signal light for more than two weeks, whereas here the removal of the septic tank cover was discovered on the morning of March 7, the day of the tragedy, and immediately reported to the maintenance office. During the two-week period the Town of Ft. Oglethorpe allowed the traffic light to operate in its defective condition. Here the tank was immediately covered with available material when the condition was discovered. The Town of Ft. Oglethorpe knew that six accidents had occurred, due to the condition of the traffic light, on the same day that plaintiff was injured. Here no other person was injured, or had ever been, due to the septic tank.

The situation here is, on principle, more like unto that in Pollock v. City of Albany, 88 Ga.App. 737, 77 S.E.2d 579, supra, where plaintiff was injured in the football stadium at a school football game. See also Petty v. City of Atlanta, 40 Ga.App. 63(4), 148 S.E. 747.

3. Conceding, but not deciding, that the matters alleged and proved were enough to raise a factual issue as to whether a nuisance existed due to the removal of the cover to the septic tank, it would not affix any liability to the defendant school board, for its status is greatly different from that of a municipality. Nabell v. City of Atlanta, 33 Ga.App. 545, 126 S.E. 905, supra; Board of Education of Waycross v. Bates, 114 Ga.App. 343, 151 S.E.2d 524, supra. We have recognized this and both the Supreme Court and this court have declined to apply the doctrine of the Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834, 165 S.E.2d 141, supra, in cases where tort liability was attempted to be fixed against governmental subdivisions other than municipalities. We declined to do so in State Highway Dept. v. Barrett, 124 Ga.App. 703, 185 S.E.2d 624, holding that the status of the Highway Department relative to its right to assert governmental immunity to be like that of a county, and not like a municipality. We also declined to equate the Board of Regents of the University System with a municipality, and held it to be entitled to governmental immunity in Perry v. Regents of University System of Georgia, 127 Ga.App. 42, 192 S.E.2d 518. The Supreme Court did likewise as to the State Parks Department in Crowder v. Dept. of State Parks, 228 Ga. 436, 185 S.E.2d 908. These cases have all been decided since that of Town of Ft. Oglethorpe, 224 Ga. 834, 165 S.E.2d 141, supra.

4. The Board of Education for the City of Savannah and the County of Chatham is an independent school system, charged by the statutes and constitutional provisions of this state with the duty of operating the public schools of that city and county. Neither the city nor the county controls the board; its members are elected by the people. It does have the right and power to request a levy, within statutory limits, of taxes county-wide for the raising of funds to operate the schools, and the county authority must levy it. See Ga.L.1865-66, pp. 78-80; Ga.L.1866, pp. 175-176; Ga.L.1917, pp. 975-976; Ga.L.1923, pp. 232-233; Ga.L.1933, pp. 1067, 1069; Ga.L.1937, p. 2094; Ga.L.1941, pp. 33-34; Ga.L.1951, pp. 2207-2210; Ga.L.1961, p. 2519; Ga.L.1965, p. 2221; Ga.L.1968, pp. 2636-2648; Ga.L.1970, pp. 2076-2080; Ga.L.1972, p. 3843. Even if the school were operated by the city, that is a purely governmental function and governmental immunity from tort liability for injury inflicted in its operation would obtain. Nabell v. City of Atlanta, 33 Ga.App. 545, 126 S.E. 905, supra; Board of Education of Waycross v. Bates, 114 Ga.App. 343, 151 S.E.2d 524, supra.

A substantial portion, perhaps a substantial majority, of the funds provided to the board for operation of the schools come under the Minimum Foundation program through the State Board of Education, and its operations are a joint eventure of and jointly financed by the local board and the State Board. It is required by law that the local board annually prepare a budget showing its estimate and source of receipts for the ensuing year and how they are to be spent. all funds received, including those from local taxation and from the state, must be spent in strict accordance with the budget, and the budget is limited by the statutes and Constitution of this State to the inclusion of items for maintenance and operation of the schools. See Code Ann. §§ 32-606, 32-945; Lewis v. Board of Education of Lowndes County, 183 Ga. 687, 189 S.E. 233; Board of Education of Waycross v. Bates, 114 Ga.App....

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