Wood v. Board of Ed. of Danville

• Decision Date: 17 March 1967
• Citation: 412 S.W.2d 877
• Parties: Paul K. WOOD et al., Appellants, v. BOARD OF EDUCATION OF DANVILLE, Kentucky et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 877

412 S.W.2d 877

Paul K. WOOD et al., Appellants, v. BOARD OF EDUCATION OF DANVILLE, Kentucky et al., Appellees.

Court of Appeals of Kentucky.

March 17, 1967.

James F. Clay, James F. Clay, Jr., Danville, for appellants.

Nelson D. Rodes, Jr., Pierce Lively, Danville, for Board of Education of Danville.

L. T. Grant, Lexington, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for Charles Renfro and others, members of and comprising the Board of Education of Danville.

Robert Matthews, Atty. Gen., Joyce Ferris Nedde, Asst. Atty. Gen., Frankfort, for Commonwealth, Dept. of Education, and Kentucky State Board of Education, amici curiae.

MONTGOMERY, Judge.

Paul K. Wood, suing individually and as the father and next friend of Kenneth Wood, an infant, and Joanne Wood, Kenneth's mother, sought to recover damages for personal injuries to Kenneth. A claim was filed with the Board of Claims against the Board of Education of Danville, Kentucky, and the Commonwealth of Kentucky. The order of the Board of Claims dismissing the claim was sustained by the Boyle Circuit Court. Wood also sued the Board of Education of Danville, Kentucky, the members of the board individually, Chester Caddas, and Neal Clem. The actions were consolidated. Paul K. Wood et al., appeal from an order of dismissal of both actions as to all parties except Caddas and Clem. From the record no disposition of the action as to Caddas and Clem has been made. See CR 54.02(1).

In the original complaint it is alleged that Kenneth Wood, a student in the Danville Independent School District, suffered personal injuries while under the supervision of Chester Caddas, as 'the agent, servant and employee of the Board of Education of Danville, Kentucky.' It is variously alleged that the injuries were the result of the negligence or willful conduct of Caddas, as agent, or by the willful conduct of Clem, on his own behalf or as agent for Caddas. The facts are very sparingly stated in the pleadings.

The action was properly dismissed as to the Board of Education of Danville, Kentucky, on the ground that the board of education was entitled to the defense of sovereign immunity. Cullinan v. Jefferson County, Ky., this day decided.

By an amended complaint it is sought to hold liable individually the members of the board on the theory that they employed Caddas and that he was their agent. A board of education is a body politic. KRS 160.160. Caddas was employed by the board and was not an employee of the individuals comprising the board.

The rule has been stated thus:

'The doctrine of respondent superior is not applicable so as to render members of a school board personally liable for injuries caused by the negligence of employees, such employees being the servants of the school district or of the board, rather than of the individual members of the board.' See Annotation, 32 A.I.R.2d 1163.

In a similar case, Vendrell v. School District No. 26C, 226 Or. 263, 360 P.2d 282, the Oregon Supreme Court recently said:

'First it may be noted that the individual members of the school district 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.'

See also Smith v. Consolidated School District No. 2 Mo., 408 S.W.2d 50, wherein the school superintendent and physical education instructor were held not liable for injuries alleged to have been sustained by a student while engaged in wrestling as a part of the physical education curriculum.

This is in accord with Whitt v. Reed, Ky., 239 S.W.2d 489, and Moores v. Fayette County, Ky., this day decided. It is pointed out therein that the members of a fiscal court or a board of education are liable individually if they had been negligent in the first instance in the employment of the subordinates. There is no such allegation in appellants' pleadings. The alternate charge of liability in the original complaint is one of willful conduct of Caddas, the subordinate, and of Clem. It is not alleged that Clem was an employee of the board, and certainly the individual board members would not be liable for willful conduct of a subordinate unless they knew of his propensity for such willful conduct when they employed him, thus rendering them negligent.

By their amended complaint appellants also seek to charge the members of the board individually on the theory that they were compelled by KRS 159.010 to place their child in attendance at the school and thus 'in the care, control and custody' of the board members and 'their agents, servants and employees.' For the reasons already noted...