Thompson v. Board of Educ., City of Millville

• Decision Date: 02 February 1951
• Docket Number: No. 189--L--50,189--L--50
• Citation: 12 N.J.Super. 92,79 A.2d 100
• Parties: THOMPSON et ux. v. BOARD OF EDUCATION, CITY OF MILLVILLE.
• Court: New Jersey County Court

Page 92

12 N.J.Super. 92

79 A.2d 100

THOMPSON et ux. v. BOARD OF EDUCATION, CITY OF MILLVILLE.

No. 189--L--50.

Cumberland County Court Law Division, New Jersey.

Feb. 2, 1951.

Nathaniel Rogovoy, Millville, for plaintiffs.

Greenblatt & Greenblatt, Vineland, for defendant.

HORUVITZ, J.C.C.

This is a motion for judgment on pleadings, pursuant to the Rule 3:12--3.

The complaint is in two counts by husband and wife. In the first count, the female plaintiff seeks a recovery for personal injuries, alleging that on the afternoon of September 8, 1950 after school hours she went to the high school building in Millville, New Jersey, for the purpose of attending a majorette or baton twirling contest in which her student daughter was a participant. It is on this score that her status as an invitee is claimed. That as she was walking through the main entrance hall she sustained a fall on a floor that was improperly waxed or oiled, for which a recovery against the defendant is sought.

In the second count, the husband sues Per quod.

The negligence charge is twofold. First, the customary blanket allegation of failure to use due care, and second, the specific complaint that the defendant '* * * allowed the floor in the main entrance and hall to be improperly oiled or waxed thereby causing great and unsafe quantities of oil or wax to remain on said floor so as to make unsafe the use of the plaintiff, Ruth M. Thompson, of the premises she was required to use in pursuance of her said invitation.'

The complaint further alleges that the defendant sponsors a high school football team which engages in games with other schools, and for the viewing of which an admission fee was charged to spectators. That in connection with such athletic contests, a band is also sponsored which numbers among its personnel majorettes selected from the student body, and that both, I.e. the band and the majorettes, participate before the games, during the halves and after the game, all to add color to the festivities.

Thus, it is sought to make baton twirling an integral part of a scholastic football game and place one who views preliminary contests for the selection of majorettes in the same category as one who attends a football game via an admission fee. Let this unique theory be accepted for the purpose of arriving at a conclusion of the legal principles involved.

The query that presents itself to this court for solution is this: 'Is an athletic contest, or any activity related thereto, conducted on school premises for monetary gain by a Board of Education, a proprietary or governmental function?'

To arrive at a determination of this inquiry, there seem to be two underlying tests:

(1) Is monetary gain sought?

(2) Is it a function that can be performed by an individual?

As to the first query, it is the opinion of this court that the only monetary gain sought is the self-perpetuation of the activity engaged in by the student body, nemely, football; therefore, it could not fall into the class of a profit-making enter-prise. McQuillan, Municipal Corporations, vol. 18, sec. 53.29.

As to the second query, it is obvious that inter-scholastic athletic activities do not fall into the same category as a water works or a municipal electric plant. As a general proposition 'a municipality is ordinarily not liable for negligence or other wrongful acts of school officials or for injuries arising in connection with its ownership of school buildings.' McQuillan,...