Ward v. School Dist. No. 18 of Tillamook County

• Decision Date: 02 November 1937
• Citation: 157 Or. 500,73 P.2d 379
• Parties: WARD v. SCHOOL DIST. NO. 18 OF TILLAMOOK COUNTY et al.
• Court: Oregon Supreme Court

73 P.2d 379

157 Or. 500

WARD v. SCHOOL DIST. NO. 18 OF TILLAMOOK COUNTY et al.

Supreme Court of Oregon

November 2, 1937

Department 1.

Appeal from Circuit Court, Tillamook County; R. Frank Peters, Judge.

An action by Alice Ward, guardian of her minor son aged seven years, against defendant School District No. 18 of Tillamook County, Or., and others, for damages because of a fractured leg caused by said minor falling from the attic through the ceiling of an anteroom in a schoolhouse upon a table installed there for 4-H Club work. From a judgment in favor of plaintiff named defendant appeals.

Reversed and remanded, with directions.

H. T. Botts, of Tillamook, for appellant.

George P. Winslow, of Tillamook, for respondent.

KELLY Justice.

On the 18th day of February, 1936, during the noon recess, five boys and three girls, all of whom were pupils in attendance at the school of defendant school district, were playing hide-and-seek. Four of the boys, in order to hide from the other children, climbed upon a table, from there into a closet, the door to which was some five feet from the floor and from there into the attic above an anteroom in the schoolhouse of defendant school district. The group seeking to find those in hiding consisted of three girls and plaintiff's ward. In his pursuit of the other boys plaintiff's ward likewise climbed upon the table, then into the closet, and then into the attic. As he attempted to walk upon the ceiling joists, he fell through the ceiling which was constructed of light material known as plasterboard. He fell upon the table from which he had climbed into the closet and sustained a fracture of his right femur.

The table was placed in the anteroom to accommodate 4-H Club members, and, when not in use, was placed near and below the door to the closet, thus enabling the children to climb into the closet by making use of a cleat upon the wall intervening between the top of the table and the closet door.

In support of the judgment, plaintiff contends that the proximate cause of the injuries to plaintiff's ward was negligence of the school district in performing a ministerial and corporate or proprietary function, as distinguished from a governmental function; and that the school district created and maintained a dangerous nuisance upon its property.

We are unable to agree with plaintiff upon either of these propositions.

We think that at all the times mentioned the defendant school district, in its relation to plaintiff's ward, acted in its governmental capacity. He was a pupil in the school, upon the school premises under the control and supervision of the teacher.

"The general rule in this country is that a school district, municipal corporation, or school board is not, in the absence of a statute imposing it, subject to liability for injuries to pupils of public schools suffered in connection with their attendance thereat, since such district, corporation, or board, in maintaining schools, acts as an agent of the state, and performs a purely public or governmental duty, imposed upon it by law for the benefit of the public, and for the performance of which it receives no profit or advantage." Annotation to Stovall v. Toppenish School District No. 49, 9 A.L.R. 911. See, also 14 A.L.R. 1392; 21 A.L.R. 1328; 24 A.L.R. 1070; 56 A.L.R. 164; and 66 A.L.R. 1282.

In construing the statute upon the subject (section 5-502, Oregon Code 1930), of actions against public corporations for injuries, Oregon has adopted this general rule by numerous decisions. Antin v. Union High School Dist. No. 2 of Clatsop County, 130 Or. 461, 280 P. 664, 66 A.L.R. 1271, and authorities there cited; Rankin v. School Dist. No. 9, 143 Or. 449, 23 P.2d 132, and authorities there cited.

Plaintiff urges that the school district did not act in a governmental capacity in permitting the 4-H Club organization to hold its classes in the school building.

In this connection, we think that the statute is pertinent which provides: "The school board of any school district may cooperate with the state board for vocational...