Swartley v. Seattle School Dist. No. 1

• Decision Date: 22 December 1966
• Docket Number: No. 38361,38361
• Citation: 421 P.2d 1009,70 Wn.2d 17
• Court: Washington Supreme Court
• Parties: Walter E. SWARTLEY, Respondent, v. SEATTLE SCHOOL DISTRICT NO. 1, Appellant.

Page 17

70 Wn.2d 17

421 P.2d 1009

Walter E. SWARTLEY, Respondent, v. SEATTLE SCHOOL DISTRICT NO. 1, Appellant.

No. 38361.

Supreme Court of Washington, Department 1.

Dec. 22, 1966.

Charles O. Carroll, Pros. Atty., James E. Kennedy, Deputy Pros. Atty., J. Stephen Funk, Sp. Deputy Pros. Atty., Seattle, for appellant.

Evans, McLaren, Lane, Powell & Moss, William J. Walsh, Jr., Richard F. Allen, Seattle, for respondent.

LANGENBACH, Judge. ^*

This is an action for the wrongful death of a minor school child. The appeal is upon the sole issue of liability.

On December 12, 1962, the boy, aged 12 years and 5 months, and a seventh grader, was working on a project in the manual training class in a junior high school in Seattle. Adjacent to the manual training room was a storeroom in which wood materials for student projects were kept. In it 20 to 24 sheets of plywood were stacked vertically--leaning against a wall for support. They were leaning at an angle estimated from 1 1/2 to 7 1/2 degrees out of plumb toward the wall. These sheets were 4 by 8 feet in size and from 1/4 to 3/4 of an inch in thickness and varied from 40 to 60 pounds in weight.

At the beginning of the fall school term, the manual training class had been instructed about a rule pertaining to this wood storage room. No student was to enter the room alone or without the teacher's permission. Appellant contended this was a safety rule. The respondent, however, asserted this rule was merely so the teacher might prevent an improper depletion of the wood supply.

On the day in question, the boy informed the teacher about his project and paid $1 for materials. He did not ask for any lumber. The teacher had unlocked the woodroom doors that morning. But, without any express permission and without notice to anyone, the boy went into this storage room. For what purpose is not known. A short time later he was discovered therein pinned between a pile of approximately 12 sheets of plywood and the storage racks. One board was pressed down across his throat, causing strangulation. In some manner, these boards had been pulled over or had fallen over, pinning him in that position. He was dead upon removal from the storeroom.

There was testimony that two other boys who also knew of these restrictions had gone into the woodroom without permission to get scraps of lumber. The appellant's director of industrial arts testified that racks for vertical storage of plywood sheets were in use in the other junior high schools, but lack of proper space prevented their installation in this school. The method of storage used there had been considered safe under the immediate supervision of the manual training teacher.

There were eight assignments of error: The trial court erred (1) in failing to grant appellant's motion for a directed verdict; (2) in overruling its objection concerning the manner of storage of plywood at other schools; (3) in overruling its objection to a question ruled as eliciting an expert's opinion; (4) in giving instruction No. 10A; (5) in giving instruction No. 13; (6) in refusing to give its instruction No. 3; (7) in refusing to grant a motion for a new trial; and (8) in refusing to grant a motion for judgment notwithstanding the verdict.

Assignments of error 1, 6, 7 and 8 were argued together. Appellant earnestly contended that the boy was guilty of contributory negligence as a matter of law and appellant had acted according to its standard of care. Consequently, it was asserted the motion for a directed verdict or for judgment notwithstanding the verdict should have been granted. Appellant relied on the facts that the boy was the only actor present when the accident occurred; he was in the woodroom in violation of a safety rule without permission, or knowledge of anyone, and there was no proof that any similar accident had ever happened before.

The case of Briscoe v. School District No. 123, 32 Wash.2d 353, 362, 201 P.2d 697, 701 (1949), laid down the following rules:

(W)hen a pupil attends a public school, he or she is subject to the rules and discipline of the school, and the protective custody of the teachers is substituted for that of the parent.

The extent of the duty thus imposed upon the respondent school district, in relation to its supervision of the pupils within its custody, is that it is required to exercise such care as an ordinarily reasonable and prudent person would exercise under the same or similar circumstances.

School facilities are provided for the use of large numbers of children. It is the duty of the school district to use reasonable care in order that the school premises and facilities be safe for the use of these children. (Citing cases.) Kidwell v. School District No. 300, 53 Wash.2d 672, 674, 335 P.2d 805, 807 (1959).

The teacher in charge of the boy at the time of this tragedy testified that, under the conditions and circumstances present when the children were admonished not to enter the storeroom alone or without the teacher's permission and presence, the storeroom placement of the plywood was considered safe. The overall supervisor of industrial arts, however, testified that where such a storeroom was accessible to junior high school students, such conditions were not safe. There was evidence that the other junior high schools used racks on which plywood was stored in a vertical position.

As to the deceased being in the storeroom in violation of the rule prohibiting the students' access to such a room without the teacher's permission, the testimony supported either that this was a safety rule or a rule to prevent the improper depletion of the wood supply. The rule is found in a standard book for teachers, but in a section other than the safety rule section.

In the light of all the facts and circumstances, whether this was a safe manner of storage of plywood and whether the deceased was guilty of contributory negligence, became questions of fact for the jury. Thus, the court could not rule on it as a matter of law. Wold v. Jones, 60 Wash.2d 327, 373 P.2d 805 (1962). These assignments of error lack merit.

Appellant urged error in the trial court's failure to give its proposed instruction No. 3:

A knowing violation of a safety rule by a student in a manual training class is negligence. Violation of the rule is not negligence if the teacher acquiesces in a habitual violation of the rule, but he need only enforce the rule reasonably.

The court, however, gave instruction No. 15B, as follows:

A knowing violation of a safety rule by a student in a manual training class may in itself be negligence, and a teacher of such student is only required to use due and reasonable care and diligence, under all of the facts and circumstances, in the supervision and enforcement of such a safety rule.

A critical comparison of the given and refused instructions will reveal no essential difference in the content and effect of such instructions. The appellant's contention is adequately answered in the given instruction.

Assignment of error No. 2 concerned the trial court's overruling of appellant's objection to testimony as to the method of storing plywood at the 14 other junior high schools in the district. 'Although, where negligence is in issue, the usual conduct or general custom of others under similar circumstances is relevant and admissible, such custom may not be established by...