Vendrell v. School Dist. No. 26C Malheur County

Decision Date01 March 1961
Citation360 P.2d 282,226 Or. 263
PartiesLouis VENDRELL, Appellant, v. SCHOOL DISTRICT NO. 26C MALHEUR COUNTY, Henry H. Hartley, J. L. Herriman, C. W. Bucher, Henry Zobell, John Schenk, Sid Flanagan and Richard Wilson, Respondents.
CourtOregon Supreme Court

Wendell Gronso, Burns, argued the cause for appellant. On the brief were Cramer & Gronso, Burns.

James A. Cox, Ontario, argued the cause for respondents. With him on the brief were Yturri & O'Kief, Ontario.


O'CONNELL, Justice.

This is an action to recover damages for personal injuries suffered by plaintiff during the course of a football game between Nyssa high school and the Vale high school, in which plaintiff was a participant as a member of the Nyssa high school team. The action is brought against the school district as a corporate entity, the individual members of the board of directors of the district in their official capacity as board members, the superintendent of schools, and the principal of Nyssa high school. The coach of the Nyssa football team was not made a party defendant.

Plaintiff was 15 years of age at the time of his injury. He brings this action in his own name after reaching the age of majority. Defendants demurred to plaintiff's complaint. The demurrer was sustained and plaintiff, declining to plead further, appealed.

Plaintiff's injury occurred when he was tackled by two members of the Vale team. Among other injuries, he suffered a broken neck which resulted in paraplegia. The complaint, after alleging that the defendants were negligent in certain particulars, recited that the defendant school district had in force a policy of liability insurance covering defendants' liability for the injury to plaintiff. The policy referred to was purchased pursuant to the authority granted in ORS 332.180, which reads as follows:

'332.180 Liability insurance; medical and hospital benefits insurance. Any district school board may enter into contracts of insurance for liability covering all activities engaged in by the district, for medical and hospital benefits for students engaging in athletic contests and for public liability and property damage covering motor vehicles operated by the district, and may pay the necessary premiums thereon. Failure to procure such insurance shall in no case be construed as negligence or lack of diligence on the part of the district school board or the members thereof.'

The only issue argued below and presented in the briefs and argument on appeal is whether ORS 332.180 is to be interpreted as impliedly providing for the waiver of the sovereign immuniy of a school district to the extent of the coverage of the insurance policy purchased by the district. However, the resolution of the question of the corporate school district's immunity does not dispose of the question of the liability of the individual members of the school board, the superintendent and the principal, all of whom are named as defendants. We must, therefore, examine the complaint to determine whether it states a cause of action against any or all of these other defendants as well as against the defendant district.

The general demurrer tests the complaint as to whether it states facts sufficient to describe a duty on the part of these individual defendants. The pertinent parts of the complaint purporting to state the facts upon which the duties of these defendants are predicated read as follows:


'That * * * Plaintiff was 15 years of age and was attending the aforementioned school as a Freshman * * *.


'That * * * Plaintiff was sent by the Defendants to play in a football game where the team of the above named Defendant school was playing the football team of the Vale High School at Vale, Malheur County, Oregon and that at said time and place, the Plaintiff was an inexperienced football player and weighed approximately 140 pounds and he was not physically coordinated and that the football team of the Vale High School consisted of very large boys and a highly experienced and rough team, all of which the Defendants, and each of them, well knew, or should have known.


'That when the Plaintiff had played a very short time in said game, he was tackled hard by two Vale boys and suffered grievous and serious injuries which are in part as follows: [reciting the injuries] * * *.


'That the injuries heretofore mentioned which were received by the Plaintiff were directly and proximately caused by the negligence of the Defendants, and each of them, and that the Defendants, and each of them, were negligent in that they caused an inexperienced football team, namely the football team of the Defendant School District to play a team far superior; they allowed the Plaintiff, who was an inexperienced Freshman to participate in said game, that they allowed the Plaintiff to participate in a varsity football game without proper or sufficient instruction; that they did so without the consent or knowledge of the Plaintiff's parents.'

Although, strictly speaking, paragraph VIII of the complaint does not allege that the defendants were negligent in the particulars recited therein, we shall regard it, together with the allegations in paragraph X, as an attempt to describe the defendants' duties to the plaintiff. We shall first consider the sufficiency of the complaint to state a cause of action against the individual defendants, i. e., the chairman and members of the board, the superintendent of the district, and the principal of the district. Since the coach is not a party we are not presented with the question of his liability. However, we shall later consider alleged omissions on the part of the coach in dealing with the question of the district's possible vicarious liability.

First it may be noted that the individual members of the district school board, the district superintendent, and the district principal do not stand in the relation of master and servant with persons subordinate to themselves; consequently the doctrine of respondeat superior cannot operate to impose vicarious liability upon these persons for the negligence of their subordinates. The principle is clearly stated as follows in Antin v. Union High School Dist. No. 2, 1929, 130 Or. 461, 472, 280 P. 664, 667, 66 A.L.R. 1271:

'* * * The relation of master and servant, or of principal and agent, does not exist in such cases, and hence the doctrine of respondeat superior does not apply between the directors and such persons.

'In Colby v. City of Portland, 85 Or. 359, 166 Pac. 537, 542, this court, speaking through Mr. Chief Justice McBride, said:

"It is the universal rule that a public officer is not personally liable for the negligence of an inferior officer unless he, having the power of selection, has failed to use ordinary care in the selection.'

'School directors are entitled to all of the immunities of public agents who are charged with a duty which, from its nature, cannot be exercised without availing themselves of the services of others, and the doctrine of respondeat superior does not apply in such cases [citing cases].'

The court further elucidates the principle by quoting from Robertson v. Sichel, 1888, 127 U.S. 507, 8 S.Ct. 1286, 1290, 32 L.Ed. 203 as follows:

"A public officer or agent is not responsible for the misfeasances or positive wrongs, or for the nonfeasances or negligences or omissions of duty, of the subagents or servants, or other persons properly employed by or under him, in the discharge of his official duties." 130 Or. at page 473, 280 P. at page 667.

The direct, as distinguished from the vicarious, liability of these individual defendants rests upon other considerations. A public officer may be held personally liable for certain acts performed in his official capacity. However, because of his status as a public officer he is, under certain circumstances, absolved from liability for acts performed by him in carrying out his official duties. Jennings, Tort Liability of Administrative Officers, 21 Minn.L.Rev. 263 (1937).

The line between liability and immunity in the case of public officers has been drawn upon the basis of distinctions which are not entirely satisfactory. Ham v. County of Los Angeles, 1920, 46 Cal.App. 148, 162, 189 P. 462; 3 Davis, Administrative Law (1958) §§ 26.01-26.07; 2 Harper & James, Torts (1956) § 29.10; Prosser, Torts (2nd Ed. 1955) 780-784; Jennings, op. cit. supra, pp. 297-301. However, it is not necessary in the present case to concern ourselves with the validity of these distinctions or the various circumstances under which a public officer should be liable for his negligent conduct.

In the case at bar the complaint does not describe any duty of the members of the school district board, or of the district superintendent, or of the district principal. Considering first the duty of the members (including the chairman) of the board, we can say as a matter of law that they are not charged with the responsibility of supervising the detailed activities involved in the conduct of the athletic program at Nyssa high school.

A similar question of liability was presented in Luce v Board of Education of Village of Johnson City, 1956, 2 A.D.2d 502, 157 N.Y.S.2d 123, 126. There an action was brought against the school board, the principal and the teacher to recover damages for an injury to a pupil sustained while participating in a physical education class. The court said:

'* * * It is urged that the Board is liable for its own negligence in failing to adopt necessary rules for the governing of its gymnasium classes, its principals and teachers, and rules relating to the limitation of activity by children with physical defects. Section 1709, subdivision 2, of the Education Law gives the Board the power and imposes the duty, 'To establish such rules and regulations concerning...

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