Snowden v. Kittitas County School Dist. No. 401, 31413

• Decision Date: 18 May 1951
• Docket Number: No. 31413,31413
• Citation: 38 Wn.2d 691,231 P.2d 621
• Court: Washington Supreme Court
• Parties: SNOWDEN, v. KITTITAS COUNTY SCHOOL DIST. NO. 401.

Page 691

38 Wn.2d 691

231 P.2d 621

SNOWDEN, v. KITTITAS COUNTY SCHOOL DIST. NO. 401.

No. 31413.

Supreme Court of Washington, en Banc.

May 18, 1951.

George H. Bovingdon, Seattle, Henry Wager, W. R. Cole, Ellensburg, for appellant.

Kern & Dano, Ellensburg, for respondent.

HAMLEY, Justice.

Plaintiff, through his guardian ad litem, brought this suit to recover damages for personal injuries sustained when a baseball backstop fell on him while he was crossing a school playfield. The jury returned a verdict for the plaintiff in the sum of $5,898.40. Judgment was entered accordingly, and defendant has appealed.

The facts, in so far as they are pertinent to the issues discussed in this opinion, may be summarized as follows: The respondent, Donald Snowden, at the time of the accident on March 7, 1947, was six years of age. He resided with his parents within the geographical limits of appellant school district. He attended the kindergarten class of the College Elementary School. This is an elementary school operated and maintained pursuant to arrangement between the Central College of Education and appellant school district.

On the morning of the day in question, Donald's mother had come to visit the school. At approximately 11:00 a. m., Donald was released from that day's classes. Donald and his mother then left the school to go to their car which was parked across the street. Donald proceeded ahead of his mother directly toward the parked vehicle. His path to the vehicle led across the corner of a playfield which was used by the pupils of the school.

The sixth grade pupils had been playing baseball on the field during a recess period which had just ended. They had left standing on this corner of the field an old baseball backstop. The sixth grade boys had lifted it from the ground to an upright position to keep the balls from going past the catcher. The backstop was made of lumber and wire, and was approximately nine feet wide and seven feet high. The students had been warned not to use the backstop because it had not been repaired following the winter of disuse, and its supports were rotten and weak. The sixth grade teacher was not on the playground at the time the backstop was raised.

As Donald proceeded past the backstop, it suddenly collapsed and fell on him, causing serious injuries.

Appellant, by means of a demurrer, motion for nonsuit, motion for directed verdict, proposed peremptory instruction, and motion for judgment notwithstanding the verdict, asserted before the trial court that the action was barred by Rem.Rev.Stat., § 4706. The trial court's actions in overruling the demurrer, rejecting the proposed instruction, and denying the motions, are assigned as error.

Rem.Rev.Stat. § 4706, relied upon by appellant, reads as follows: 'No action shall be brought or maintained against any school district or its officers for any noncontractual acts or omission of such district, its agents, officers or employees, relating to any park, playground, or field house, athletic apparatus or appliance, or manual training equipment, whether situated in or about any schoolhouse or elsewhere, owned, operated or maintained by such school district.'

It is a general common-law rule that a municipal corporation is not liable to answer for the personal torts of its officers, agents or employees, in the absence of a statute expressly declaring it so liable. Shimada v. Diking District No. 12, 139 Wash. 168, 245 P. 916. This rule applies to school districts. Howard v. Tacoma School District No. 10, 88 Wash. 167, 152 P. 1004, Ann.Cas. 1917D, 792; Bush v. Quinault School District No. 97, 1 Wash.2d 28, 95 P.2d 33; Casper v. Longview School District No. 122, 5 Wash.2d 403, 105 P.2d 503; Read v. School Dist. No. 211 of Lewis County, 7 Wash.2d 502, 110 P.2d 179; Briscoe v. School District No. 123, 32 Wash.2d 353, 201 P.2d 697.

In this state, the rule was abrogated with respect to school districts and certain other public corporations by the enactment in 1869 of Rem.Rev.Stat. § 951. Redfield v. School District No. 3, 48 Wash. 85, 92 P. 770; Howard v. Tacoma School District No. 10, supra; Stovall v. Toppenish School District No. 49, 110 Wash. 97, 188 P. 12, 9 A.L.R. 908; Morris v. Union High School District A., 160 Wash. 121, 294 P. 998; Briscoe v. School District No. 123, supra. This statute, in turn, was, by necessary implication, amended by the enactment in 1917 of Rem.Rev.Stat. § 4706, Laws of 1917, chap. 92, quoted above. Swanson v. School District No. 15, 109 Wash. 652, 187 P. 386; Stovall v. Toppenish School District No. 49, supra; Read v. School Dist. No. 211 of Lewis County, supra; Briscoe v. School District No. 123, supra. The effect of Rem.Rev.Stat. § 4706, therefore, is to restore in part the common law immunity from tort liability, enjoyed by public school districts.

This immunity has been applied, and school districts have been exonerated from liability, in four cases involving school athletic activities, which have reached this court since enactment of Rem.Rev.Stat. § 4706. See Foley v. Pierce County School Dist. No. 10, 102 Wash. 50, 172 P. 819, swimming pool; Bailey v. School District No. 49, 108 Wash. 612, 185 P. 810, swings; Bush v. Quinault School District No. 97, supra, exercise bars; and Yarnell v. Marshall School District No. 343, 17 Wash.2d 284, 135 P.2d 317, swing.

Respondent advances two reasons why Rem.Rev.Stat. § 4706, should not be considered as barring recovery in the instant case. The first of these is that the baseball backstop which caused respondent's injuries is not an 'athletic apparatus' or 'appliance,' within the meaning of that statute. Respondent argues that the backstop had the function of protecting passersby from injury from the ball in play, the same as a screen in front of a baseball pavilion. Respondent points out that the backstop is not something used to exercise upon, such as a swing, a slide, or a chinning bar. Juntila v. Everett School District No. 24, 178 Wash. 637, 35 P.2d 78, and Briscoe v. School District No. 123, supra, are cited in support of respondent's contention.

In the Juntila case, a student was injured when a guard rail gave way while he was sitting in school bleachers watching a football game. This court held that a bleacher seat is not an athletic apparatus or appliance, saying: '* * * Athletic apparatus, appliances, and manual training equipment are all things pertaining to the activities of those engaged in physical training or exercise, and they can have no reference to seats provided for mere spectators who assemble to view the activities upon the athletic field.' 178 Wash. at page 641, 35 P.2d at page 80.

The Briscoe case involved a school boy who was injured on the school grounds while playing 'keep-away' with a football. In holding that a football is not an athletic apparatus or appliance, we said: 'In making a determination of this question, we note, first, that in a broad, general sense, a football might be considered to be an athletic apparatus or appliance. When, however, the relation of the words used, as to each other, and the text of the statute as a whole are carefully studied, we think that the most reasonable interpretation of what the legislature intended by the words, 'athletic apparatus or appliance' is that it had reference to some sort of more or less permanently located equipment, such as swings, slides, traveling rings, teeter boards, chinning bars, etc., and not something as highly mobile as a football. The words, 'situated,' 'operated,' and 'maintained,' as they are used in the statute in reference to 'athletic apparatus or appliance,' lend credence to this interpretation, for it is certainly incorrect to refer to a football as being 'situated in or about any schoolhouse or elsewhere, owned, operated or maintained by such school district." 32 Wash.2d at page 365, 201 P.2d at page 703.

In our view, neither of these cases supports respondent's position. The baseball backstop here in question may have incidentially served to protect some passersby from injury. The principal purpose of this device, however, was to serve as a convenience to the boys who were playing baseball, so that they would not have to run after the ball in case it was missed by the catcher or fouled by the batter. One of the boys who helped raise this backstop on the day in question testified that this was done 'because the balls kept going past the catcher.'

The backstop, unlike the bleacher seats, was not wholly for the use of spectators or anyone other than the players. It was equipment 'pertaining to the activities of those engaged in physical training or exercise,' as those words are used in the Juntila case. It was 'more or less permanently located equipment,' to apply the expression used in the Briscoe case, and was certainly not 'highly mobile' as the football was there held to be.

Examples of the kind of equipment which are included within the term 'athletic apparatus or appliance,' are listed in the Briscoe opinion. These are swings, slides, traveling rings, teeter boards and chinning bars. It happens that each of these is used by climbing on, sitting on, or grasping the equipment. No significance is to be attached to this, however, since no question was there presented as to whether the equipment had to be of a kind which is used in this direct manner. A football is also grasped, yet the court held this not to be an athletic apparatus or appliance. The examples listed in the Briscoe case were given only for the purpose of drawing a distinction between athletic equipment which is 'more or less permanently located' and that which is 'highly mobile.' The court there made clear, by using the words 'such as,' that the examples given were not intended to be all-inclusive.

There are expressions in two of our decisions to the effect that the purpose of Rem.Rev.Stat. § 4706, was to exonerate school districts from liability for an accident which occurs...