Sly v. Board of Ed. of Kansas City
| Decision Date | 08 December 1973 |
| Docket Number | No. 47020,47020 |
| Parties | Richard Allen SLY, a Minor, By and Through Beverly Jean Sly, Mother and Next Friend, Appellant, v. The BOARD OF EDUCATION OF the KANSAS CITY, Kansas, et al., Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. What may or may not constitute a nuisance in a particular case depends upon muny things, such as the type of neighborhood, the nature of the thing or wrong complainted of, its proximity to those alleging injury or demage, its frequency, continuity or duration, and the damage or annoyance resulting. Each case of necessity must depend upon the particular facts and circumstances.
2. A nuisance is an annoyance, and any use of property which gives offense to or endangers life or health, violates the laws of decency, unreasonably pollutes the air with foul noxious odors or smoke, or obstructs the reasonable and comfortable use and enjoyment of the property of another, may be said to be a nuisance.
3. A strict standard of proof is applied in determining what constitutes a nuisance where a municipality is acting in its governmental, as distinguished from proprietary, capacity.
4. The fact that students at a junior high school where some racial tension existed were permitted to congregate unsupervised outside a locked school building for a period of time immediately prior to the commencement of classes inside the building, did not constitute maintenance of a nuisance to which the rule of governmental immunity respecting school authorities is inapplicable.
5. The doctrine of governmental immunity from tort liability afforded a board of education in the operation of public school does not extend to an employee of the board who negligently causes injury to another.
6. Rules governing propriety of summary judgments are stated and applied.
7. Legal causation of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred, an additional condition sometimes being that it must appear the injury was anticipated or that it reasonably should have been foreseen by the person sought to be charged with liability.
8. The rule that the causal connection between an actor's negligence and an injury is broken by the intervention of a new, independent and efficient intervening cause so that the actor is without liability, is subject to the qualification that if the intervening cause was foreseen or might reasonably have been foreseen by the first actor, his negligence may by considered the legal cause, notwithstanding the intervening cause.
9. The general rule is that when, between an original negligent act or omission and the occurrence of an injury, there intervenes a willful, malicious, and criminal act of a third person which causes the injury but was not intended by the person who was negligent, and could not reasonable have been foreseen by him, the causal chain between the negligence and the accident is broken.
10. In an action by a student against public school authorities to recover damages sustained as a result of an assault by fellow students, the record on appeal is examined and it is held: The court properly rendered summary judgment (1) for the school board and its members on the basis that their conduct did not create a nuisance; and (2) for the principal and vice-principal of the school on the basis that any negligence by them was not legal causation of the injury complained of.
Lloyd Burke Bronston, Bronston & Smith, Kansas City, argued the cause, and James F. Savage, Kansas City, was with him on the brief for appellant.
Frank Saunders, Jr., Overland Park, argued the cause, and Richard T. Merker, Overland Park, was with him on hte brief for appellees.
HARMAN, Commissioner:
This is a negligence action by a public school student for damages for personal injuries resulting from an assault by fellow students. Joined as defendants were the board of education and its members and the principal and vice-principal of the junior high school where the incident occurred. Maintenance of a nuisance was also alleged as a ground of recovery against the school board. Summary judgments were rendered for all defendants, from which plaintiff appeals.
In a separate proceeding the trial court first rendered summary judgment for the school board and its members, this on the theory that under the doctrine of governmental immunity they were not liable for negligent acts performed while acting in a governmental capacity and further that no actionable nuisance was shown. Later the trial court summarily entered judgment for the principal (Channell) and vice-principal (Jost) on the ground any negligence on their part was not the cause of appellant's injuries.
The only facts supplied us in the case are those stated in the trial judge's second memorandum opinion, which statement is conceded by appellant to be an accurate chronology of events. We quote the portions of that opinion relating to the facts:
'This lawsuit arises out of a fight between plaintiff and two Negro students outside Argentine Junior High School just before the doors were opended at 7:15 A.M., on May 19, 1969.
'The case was filed September 10, 1969, discovery has been completed, and pretrial conference has been held. Summary judgment in favor of the Board of Education and the individual members of the Board was sustained January 20, 1972, on the grounds of sovereign immunity of the School Board (plus no nuisance shown).
'The allegations of negligence in the Amended Petition are rather broad and general. Basically, however, plaintiff's complaint is that the defendants were negligent in that they failed to adopt any policy or rules for supervising the students waiting outside in the morning before the doors opened, and failed to provide any supervision although they knew that such situation was potentially dangerous.
'It is undisputed that the plaintiff, age fourteen, was a student at Argentine Junior High School, that he got on the school bus at approximately 7:00 A.M. and arrived at the school just before 7:15 A.M. It is also undisputed that students begin arriving as early as 7:00 A.M. and except in bad weather are required to remain outside until the doors are opened at 7:15 A.M., and that no one is assigned to supervise the students during this period while they are outside.
'There are two versions, of course, as to the racial situation at Argentine High School, and as to the fight involved here. The evidence most favorable to plaintiff, however, is that on the day before the fight, plaintiff and some of his friends overheard William King, a Negro student, saying 'bad names' about someone, and plaintiff asked King if he were talking about plaintiff. King replied that it was none of his business. Subsequently, King confronted plaintiff outside the door of plaintiff's classroom and pushed him and asked plaintiff if he wanted to fight. Plaintiff said he did not want to fight. At this point a teacher intervened and sent plaintiff into the classroom and King left. This incident was not reported to defendants by the teacher until after the fight.
'It is plaintiff's contention that the defendants knew or should have known of the propensity of King and Brown as troublemakers, that they knew or should have known of the pushing incident the day before between King and plaintiff, and that they knew of the friction between the black and white students, and that under the circumstances they were negligent in failing to provide for any supervision over the students outside the school before the doors were opened in the morning.
'It is defendants' contention that they are not responsible for the children until the doors are open and the children are inside the school and that, in any event, the lack of supervision outside the school was not the proximate cause of the fight and plaintiff's resulting injuries.
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