Molinari v. City of Boston , 333 Mass. 394 ( 1955 )

333 Mass. 394 (1955) 130 N.E.2d 925

MARIE MOLINARI & another
vs.
CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

November 8, 1955. December 30, 1955.

Present: QUA, C.J., RONAN, WILKINS, WILLIAMS, & WHITTEMORE, JJ.

Charles F. Nayor, for the plaintiffs.

Arthur G. Coffey, Assistant Corporation Counsel, for the defendant.

WILLIAMS, J.

The plaintiffs appeal from an order of the Superior Court sustaining the defendant's demurrer to their amended declaration. In count 1 it is alleged that the plaintiff Marie Molinari on January 25, 1954, while a pupil in attendance at the Christopher Gibson School, a public school of the defendant, was "wilfully and recklessly ordered and compelled by an agent and/or employee of the defendant to assume and occupy a position of danger to her health and safety; to wit, a position in ... [the] classroom close to an exposed, extremely hot and dangerous steam radiator and/or pipes, which ... were so constructed, maintained and/or operated by the defendant, its agents, servants and/or employees as to be and constitute a nuisance to the plaintiff in her person and property in the position which the plaintiff was required and compelled to assume and occupy in said classroom; and that as a result thereof, the plaintiff was caused to sustain ... injuries and damage to her person and property...."

In count 2 the plaintiff Mary Molinari, mother of Marie, alleges consequential damage.

The defendant avers as ground for demurrer that the declaration sets forth no legal cause of action.

The duty to provide and maintain schoolhouses properly furnished for the accommodation of children entitled to attend the public schools is imposed by general law upon all towns and cities in the Commonwealth. G.L. (Ter. Ed.) c. 71, § 1, as amended; § 68, as appearing in St. 1934, c. 97, § 1. Hill v. Boston, 122 Mass. 344. Unless the municipality otherwise directs, the general charge of the schoolhouses is vested in the school committee, §§ 37 and 68, which shall "keep them in good order, and shall, at the expense of the town [or city] ... provide fuel and all other things necessary for the comfort of the pupils" (§ 68). See Ring v. Woburn, 311 Mass. 679; Hayes v. Brockton, 313 Mass. 641.

The committee is a board of public officers whose duties are prescribed by statute, and in the execution of its duties the members act not as agents of the municipality but as public officers. McKenna v. Kimball, 145 Mass. 555. Warburton v. Quincy, 309 Mass. 111, 114. Its powers include the employment not only of teachers but also of janitors and custodians, Ring v. Woburn, supra, at page 687, and the absolute right to fix their salaries. Watt v. Chelmsford, 323 Mass. 697, 700. Ring v. Woburn, supra. No other officer has authority over the maintenance of schoolhouses. McKenna v. Kimball, supra.

It is settled that the municipality is not liable for the torts of public officers or for those of their agents and servants acting in the discharge of the public duties imposed upon them. Reitano v. Haverhill, 309 Mass. 118, 122. This principle applies to the "negligent or tortious acts" of those charged with the conduct of the public schools or with the construction and maintenance of schoolhouses. Bolster v. Lawrence, 225 Mass. 387, 389. See Bigelow v. Randolph, 14 Gray, 541; Hill v. Boston, 122 Mass. 344; Sullivan v. Boston, 126 Mass. 540, 542; Howard v. Worcester, 153 Mass. 426; Kelley v. Boston, 186 Mass. 165. It is therefore plain that the plaintiffs are not entitled to recover damages from the city. Whether the agent or employee to whom the declaration refers was a teacher or custodian of the schoolhouse and whether the act of such agent or employee was reckless or wilful (Buttrick v. Lowell, 1 Allen, 172), the city is not liable for the injury to the pupil.

The plaintiffs gain no advantage by asserting the existence of a nuisance. See Whalen v. Worcester Electric Light Co. 307 Mass. 169, 175; Samuel v. White Fuel Corp. 332 Mass. 264, 267. The case does not come within that somewhat restricted class illustrated by Towner v. Melrose, 305 Mass. 165, where a private nuisance may be created by a municipality in the performance of public work by permitting such use of its land as to damage the property of another outside the limits of the work; in which circumstances the use for the benefit of the public is no justification. The alleged injury to the minor plaintiff resulted from the improper construction or maintenance of the heating system in a building which the school committee was bound to provide in the performance of its public duties.

Order sustaining demurrer affirmed.