Sims v. Etowah County Bd. of Ed.

Decision Date01 October 1976
Citation337 So.2d 1310
PartiesJames M. SIMS v. ETOWAH COUNTY BOARD OF EDUCATION et al. Judy F. SIMS v. ETOWAH COUNTY BOARD OF EDUCATION et al. SC 1837, 1837--A.
CourtAlabama Supreme Court

Thomas E. Davis, Gadsden, for appellants.

David B. Carnes, Gadsden, for appellees.

BEATTY, Justice.

Judy F. Sims and her husband, James M. Sims, filed actions against the Etowah County Board of Education to recover damages for personal injuries incurred by Ms. Sims when the viewing stand on which she was seated collapsed while she was attending a football game. The complaints contained negligence and contract counts. These alleged that Mr. and Ms. Sims had purchased tickets to observe the game being played at Hokes Bluff High School Stadium between Hokes Bluff High School, operated and controlled by the Etowah County Board of Education, and Glencoe High School.

The negligence counts alleged that the defendants 'negligently maintained said football stands, or negligently allowed said football stands to fall into an unsafe condition, so that they were not safe for persons to sit on said stands . . .' followed by allegations of proximate consequential injury.

The amended contract count of Ms. Sims alleged:

'2. That the plaintiff and her husband did pay a sum of money to the defendants to purchase a ticket to witness said football game and the defendant did impliedly contract to furnish to the plaintiff a safe and proper place from which she could observe said football game.

'3. The defendants breached said contract . . . in that the football stands upon which she was seated were not fit and proper for use as football stands and collapsed during said football game, causing the plaintiff to suffer personal injury and damages.'

Her husband's contract count contained almost verbatim recitals, and each alleged proximate consequential injuries. Ms. Sims demanded damages for injuries; Mr. Sims demanded damages for loss of consortium. The two actions were consolidated for trial.

The defendant filed motions to dismiss to each complaint which were granted, and from which this joint appeal followed.

In their briefs all parties agree that the basic legal question is whether the Etowah County Board of Education is immune from suit due to governmental immunity. We hold that it is not immune from suit for breach of contract and thus we reverse the decision of the trial court dismissing the complaints.

In its brief, appellee defends the dismissal of the contract counts by citing a statement contained in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631, 632:

'. . . We hold that the trial Court did not err in granting the motion to dismiss the contract counts since the duty alleged is imposed solely by law and its alleged breach is tortious only. . . .'

Appellee also classifies itself as an independent agency of the state, immune from suit while acting within the scope of its corporate powers.

In Lorence we held that the Legislature had exercised its prerogative by authorizing suit against a county hospital board. ('What is before us is the immunity question with respect to county hospital boards; and because the statute authorizing such corporate entity expressly provides for suits against them, . . .' 294 Ala. p. 618, 320 So.2d p. 634). Lorence and its companion case, Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975) (which abrogated municipal immunity from suit), both concerned liability in tort. The complaint in Jackson did not contain a breach of contract allegation, but Lorence sustained the trial court's dismissal of a contract count on the ground that the county's duty alleged therein was one implied by law and involved a tortious breach only. This aspect of the decision followed the holding in Green v. Hospital Building Authority of City of Bessemer, 294 Ala. 467, 318 So.2d 701 (1975), that the hospital-patient relationship would not give rise to a contract implied by law to impose a duty upon a hospital to use care in its patient treatment. Nothing in those cases sought to limit liability on the part of counties or county agencies for breaches of their contracts implied in fact. Indeed, in Hudson v. Coffee County, 294 Ala. 713, 321 So.2d 191 (1975) and Berry v. Druid City Hospital Board, 295 Ala. ---, 333 So.2d 796 (1976), we clearly distinguished the contract implied by law (to which Lorence referred) from the contracts implied in fact (under which the recovery in Berry proceeded). Berry contains a quotation from Vines v. Crescent Transit Company, 264 Ala. 114, 119, 85 So.2d 436 (1955) which is applicable in the instant case:

'It will be observed that a negligent Failure to perform a contract express or implied . . . is but a breach of the contract. But if in performing it, it is alleged that defendant negligently caused personal injury or property damage to plaintiff, the remedy is in tort, for it is not the breach of a contract express or implied, but the breach of an implied duty to exercise due care not to injure plaintiff . . . which is the gravamen of the action. . . .'

It will be noted that these contract counts alleged an implied contract to furnish a safe and proper place from which to observe the game and that the defendants breached that contract because the football stands upon which she was seated were not fit and proper for that use, and collapsed. This allegation appears to us to charge the breach of an implied agreement to furnish a proper place from which to safely observe the game, and thus falls within that class of implied undertakings referred to in Berry. Plaintiffs have stated a contract, albeit an implied one, and its breach sufficiently to comply with ARCP 8(a), 1 Lyons, Alabama Practice, § 8.3 (1973), and if the defendant is otherwise amenable to suit, the motion to dismiss was improperly granted.

By virtue of Alabama Code, Tit. 52, § 99:

'The county board of education . . . may sue and contract, all contracts to be made after resolutions have been adopted by the board and spread upon its minutes. . . .'

This right to sue carries with it the implied right to be sued, Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 85 So. 774 (1920), but only upon such matters as are within the scope of its corporate power. Morgan et al. v. Cherokee County Board of Education, 257 Ala. 201, 58 So.2d 134 (1952). Thus our cases recognize that a county board of education may be sued on its contracts. The restriction on contracts made by the board, I.e., that a resolution precede their making, obviously, applies to express or 'special' contracts, not to 'implied' contracts. When the parties state the terms of their contract it is an 'express' contract. But when their agreement has not been expressed in words but from their conduct they have manifested mutual assent to its terms, it is an implied contract, implied from the factual circumstances. Adams v. Republic Steel Corp., 254 Ala. 620, 49 So.2d 214 (1950); Williston, Contracts § 3 (Rev.Ed.). It seems clear that under § 99 a board of education is authorized to enter into either type of contract; however, the restriction contained in § 99 requiring a resolution would appear to apply only to contracts of the first type, for any such resolution undoubtedly anticipates, at least to some extent, the express terms to be subsequently agreed upon by the board. It does not appear reasonable to expect that a board of education could anticipate by resolution its contracts which courts might later decide existed because of factual implication, but which, nevertheless, fall within the scope of the board's power. Cf. Board of Education of Escambia County v. Watts, 19 Ala.App. 7, 95 So. 498 (1922); Ex parte Watts, 209 Ala. 115, 95 So. 502 (1923).

It is a matter of common knowledge that physical education is an important aspect of the public school curriculum, and spectator participation is common. That it is within the scope of the corporate power of a county board of education to authorize athletic contests between schools under their management and others, and to contract, expressly or by implication, with members of the public who wish to view such contests, is clear.

The authorities in other jurisdictions are divided on the issue of liability to a spectator who has been injured during such a contest. Some have applied the 'governmental function' doctrine and avoided local responsibility, E.g., Reed v. Rhea County, 189 Tenn. 247, 225 S.W.2d 49 (1949), while others have allowed recovery, especially when the event resembles a commercial sports exploitation, E.g., Hoffman v. Scranton School District, 67 Pa. Dist. & Co. 301, 41 Mun.L.R. 21.

In Alabama, however, a ticket to a place of public entertainment constitutes a contract between the proprietor and the purchaser of the ticket; whatever contractual duties grow out of that relation, it has been held, must be performed by the proprietor or he must respond in damages for breach of contract. Interstate Amusement Co. v. Martin, 8 Ala.App. 481, 62 So. 404 (1913). The contractual undertaking, arising out of this relation was succinctly stated by Justice Somerville in Birmingham Amusement Co. v. Norris, 216 Ala. 138, 141, 112 So. 633, 635 (1927), a case in which a theatre owner was held liable to a patron who was injured when her chair collapsed. He wrote:

'. . . (w)here the proprietor invites people upon his premises, and receives compensation for the privilege of their entrance, or for their entertainment while there, He impliedly undertakes that the premises are reasonably safe for the purpose intended, and for which they are accordingly used by his patrons.' (Emphasis supplied.)

This language followed a comparative discussion of authorities in other states, some basing liability on tort principles and others on contract principles. Justice Somerville's language, concurred in by all the justices, denotes the relationship as contractual by implication, and his...

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