Hunter v. BD. OF EDUC., MONT. CNTY. , 292 Md. 481 ( 1982 )

Digges, J.,

delivered the opinion of the Court.

Davidson, J., concurs in part and dissents in part, and filed an opinion at page 491 infra, concurring in part and dissenting in part.

This case primarily presents the troubling but nevertheless important question, which has not been previously addressed by this Court, of whether an action can be successfully asserted against a school board and various individual employees for improperly evaluating, placing or teaching a student. The Circuit Court for Montgomery County (Shearin, J.) and the Court of Special Appeals ¹ concluded that an educational negligence action could not be maintained. We agree with this determination and will affirm that portion of the judgment, but will reverse with respect to petitioners’ allegations concerning the commission of an intentional tort by certain individual employees of the board.

As this case is before us on appeal from an order sustaining a demurrer without leave to amend, in accord with familiar principles, we take as true all well pleaded material facts as well as all inferences reasonably based upon them.² The Hunters filed this six count declaration on behalf of their child, Ross, naming as defendants the Montgomery County School Board as a corporate body, the principal of Hungerford Elementary School where young Hunter received his primary education, a board employee who engaged in diagnostic testing of the student in second grade, and the boy’s sixth grade teacher at Hungerford. The action was instituted in October, 1977, shortly after Ross’ sixteenth birthday. As best we can gather from the declaration, the parents (petitioners here) complain that the school system negligently evaluated the child’s learning abilities and caused him to repeat first grade materials while being physically placed in the second grade. It is alleged that this misplacement, which continued at least through grade school, generally caused the student to feel "embarrassment,” to develop "learning deficiencies,” and to experience "depletion of ego strength.” The petitioners further claim that the individual educators, acting intentionally and maliciously, furnished false information to them concerning the student’s learning disability, altered school records to cover up their actions, and demeaned the child.

It is clear, however, that the gravamen of petitioners’ claim in this case sounds in negligence, asserting damages for the alleged failure of the school system to properly educate young Hunter, and we first focus our attention on this aspect of it. In so doing, we note that these so-called "educational malpractice” claims have been unanimously rejected by those few jurisdictions considering the topic. See D.S.W. v. Fairbanks No. Star Bor. Sch. Dist., 628 P.2d 554 (Alaska 1981); Smith v. Alameda Cty. Soc. Serv. Agency, 90 Cal.App.3d 929, 153 Cal. Rptr. 712 (1979); Peter W. v. San Francisco Unified School District, 60 Cal.App.3d 814, 131 Cal. Rptr. 854 (1976); Hoffman v. Board of Ed. of City of N.Y., 49 N.Y.2d 121, 424 N.Y.S.2d 376, 400 N.E.2d 317 (1979); Donohue v. Copiague Union Free School Dist., 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352 (1979). These decisions generally hold that a cause of action seeking damages for acts of negligence in the educational process is precluded by considerations of public policy, among them being the absence of a workable rule of care against which the defendant’s conduct may be measured, the inherent uncertainty in determining the cause and nature of any damages, and the extreme burden which would be imposed on the already strained resources of the public school system to say nothing of those of the judiciary. Thus, in Peter W., supra, where a high school graduate sought recovery in tort for a claimed inadequate education, the California court, viewing the problem as whether an actionable duty of care existed, noted that the "wrongful conduct and injuries allegedly involved in educational malfeasance” were neither comprehensible nor assessable within the judicial framework and explained as follows:

Unlike the activity of the highway or the marketplace, classroom methodology affords no readily acceptable standards of care, or cause, or injury. The science of pedagogy itself is fraught with different and conflicting theories of how or what a child should be taught, and any layman might — and commonly does — have his own emphatic views on the subject. The "injury” claimed here is plaintiffs inability to read and write. Substantial professional authority attests that the achievement of literacy in the schools, or its failure, is influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized but not identified.

We find in this situation no conceivable "workability of a rule of care” against which defendants’ alleged conduct may be measured ... no reasonable "degree of certainty that ... plaintiff suffered injury” within the meaning of the law of negligence...., and no such perceptible "connection between the defendant’s conduct and the injury suffered,” as alleged, which would establish a causal link between them within the same meaning. [60 Cal.App.3d at 824-25, 131 Cal. Reptr. at 860-61 (citations omitted).]

Although the just-articulated policy considerations alone sufficed to negate a legal duty of care in Peter W., the court aptly identified additional, practical consequences of imposing such a duty upon the persons and agencies who administer our public educational system:

Few of our institutions, if any, have aroused the controversies, or incurred the public dissatisfaction, which have attended the operation of the public schools during the last few decades. Rightly or wrongly, but widely, they are charged with outright failure in the achievement of their educational objectives; according to some critics, they bear responsibility for many of the social and moral problems of our society at large. Their public plight in these respects is attested in the daily media, in bitter governing board elections, in wholesale rejections of school bond proposals, and in survey upon survey. To hold them to an actionable "duty of care,” in the discharge of their academic functions, would expose them to the tort claims — real or imagined — of disaffected students and parents in countless numbers. They are already beset by social and financial problems which have gone to major litigations, but for which no permanent solution has yet appeared. . . . The ultimate consequences, in terms of public time and money, would burden them — and society — beyond calculation. [60 Cal.App.3d at 825, 131 Cal. Reptr. at 861 (citation omitted).]

In Donohue v. Copiague Union Free School Dist., supra, the New York Court of Appeals addressed the identical proposition as that presented in Peter W., but viewed the issue as presenting solely a question of public policy:

The fact that a complaint alleging "educational malpractice” might on the pleadings state a cause of action within traditional notions of tort law does not, however, require that it be sustained. The heart of the matter is whether, assuming that such a cause of action may be stated, the courts should, as a matter of public policy, entertain such claims. We believe they should not. [391 N.E.2d at 1354.]

The New York court concluded that the action should not be permitted because to do so would "constitute blatant interference with the responsibility for the administration of the public school system lodged by [State] Constitution and statute in school administrative agencies.” 391 N.E.2d at 1354.

Two subsequent cases, presenting somewhat more appealing circumstances, provided the respective New York and California courts the opportunity to revisit and strengthen the Donohue and Peter W. decisions. In Hoffman v. Board of Ed. of City of N. Y., 49 N.Y.2d 121, 424 N.Y.S.2d 376, 400 N.E.2d 317 (1979), the plaintiff, who was of normal intelligence, was negligently placed in special classes for the mentally retarded where he remained for over ten years. The New York Court of Appeals reversed the Appellate Division, which had allowed recovery, and declared that "[t]he policy considerations which prompted our decision in Donohue apply with equal force to 'educational malpractice’ actions based upon allegations of educational misfeasance and nonfeasance.” 400 N.E.2d at 320.³ Likewise, in Smith v. Alameda Cty. Soc. Serv. Agency, 90 Cal.App.3d 929, 153 Cal. Reptr. 712 (1979), the plaintiff alleged that the school district negligently placed him in classes for the mentally handicapped under circumstances where the district either knew or should have known that he was not retarded. Declaring that the duty sought to be imposed in Smith was basically "indistinguishable from the one argued for in Peter W.,” the court held that no cause of action was stated against the school district. 153 Cal. Reptr. at 719. See also D.S.W. v. Fairbanks No. Star Bor. Sch. Dist, 628 P.2d 554 (Alaska 1981) (following the California and New York decisions, the court held that there exists no cause of action for negligent failure to diagnose dyslexia and termination of remedial classes).

We find ourselves in substantial agreement with the reasoning employed by the courts in Peter W. and Donohue, for an award of money damages, in our view, represents a singularly inappropriate remedy for asserted errors in the educational process.⁴ The misgivings expressed in these cases concerning the establishment of legal cause and the inherent immeasurability of damages that is involved in such educational negligence actions against the school systems are indeed well founded. Moreover, to allow petitioners’ asserted negligence claims to proceed would in effect position the courts of this State as overseers of both the day-to-day operation of our educational process as well as the formulation of its governing policies. This responsibility we are loath to impose on our courts. Such matters have been properly entrusted by the General Assembly to the State Department of Education and the local school boards who are invested with authority over them. See Md. Code (1978 & 1981 Cum. Supp.), §§ 2-106, 2-205, 2-303, 4-101, 4-107, 4-110, 4-204 and 4-304 of the Educational Article which broadly delineates the supervisory responsibility of the State Department of Education, the local school boards, and their respective superintendents. In this regard, we have stated in another context, that "the totality of the various statutory provisions concerning the State Board [of Education] 'quite plainly ... invests the ... Board with the last word on any matter concerning educational policy or the administration of the system of public education.’ ” Resetar v. State Bd. of Education, 284 Md. 537, 556, 399 A.2d 225, 235 (1979).

Our conclusion on this point, however, does not imply that parents who feel aggrieved by an action of public educators affecting their child are without recourse. For example: (1) the General Assembly has provided a comprehensive scheme for reviewing a placement decision of a handicapped child including an appeal to the circuit court, Md. Code (1978, 1981 Cum. Supp.) § 8-415 of the Education Article; (2) both parent and child have the right to review educational records and, if appropriate, insist that the documents be amended, COMAR 13A.08.02.01 et seq.; (3) section 4-205(c) (3) of the Education Article commands that each county superintendent, "without charge to the parties concerned. . . shall decide all controversies that involve: (i) [t]he rules and regulations of the county board; and (ii) [t]he proper administration of the county public school system,” with the decision being appealable to the county board and then to the state board of education, § 4-205 (c) (4), and further, if appropriate, to the courts through the administrative procedure act, Md. Code (1957, 1978 Repl. Vol. & 1981 Cum. Supp.), Art. 41, §§ 255, 256; and (4) county boards of education are required to establish "at least one” citizen committee "to advise the board and to facilitate its activities and programs in the public schools,” and similar committees may be established for an individual school. § 4-111. Thus, it is preferable, in the legislature’s view, to settle disputes concerning classification and placement of students and the like by resorting to these and similar informal measures than through the post hoc remedy of a civil action. With this we have no quarrel, for, as aptly noted by the Alaska Supreme Court in this regard, "[p]rompt administrative and judicial review may correct erroneous action in time so that any educational shortcomings suffered by a student may be corrected. Money damages, on the other hand, are a poor, and only tenuously related, substitute for a proper education.” D.S.W. v. Fairbanks No. Star Bor. Sch. Dist., supra, 628 P.2d at 557. Consequently, we will affirm the judgment of the Court of Special Appeals concerning the dismissal of counts I, III, IV, V and VI of petitioners’ amended declaration.⁵ This leaves the claim set forth in count II to which we now address our attention.

Count II represents the parents’ somewhat amorphous claim that the respondents intentionally and maliciously acted to injure their child. Research reveals that none of the prior cases discussing educational malpractice have squarely confronted the question of whether public educators may be held responsible for their intentional torts arising in the educational context.⁶ In declining to entertain the educational negligence and breach of contract actions, we in no way intend to shield individual educators from liability for their intentional torts. It is our view that where an individual engaged in the educational process is shown to have wilfully and maliciously injured a child entrusted to his educational care, such outrageous conduct greatly outweighs any public policy considerations which would otherwise preclude liability so as to authorize recovery.⁷ It may well be true that a claimant will usually face a formidable burden in attempting to produce adequate evidence to establish the intent requirement of the tort, but that factor alone cannot prevent a plaintiff from instituting the action.⁸ Thus, the petitioners are entitled to make such an attempt here.

Judgment of the Court of Special Appeals affirmed in part and reversed in part and case remanded to that Court for the entry of a judgment in accordance with this opinion.

Costs to be divided equally between the parties.

1 . Hunter v. Bd. of Ed. of Montgomery County, 47 Md. App. 709, 425 A.2d 681 (1981).

2 . See Hoffman v. Key Fed. Sav. & Loan, 286 Md. 28, 33-34, 416 A.2d 1265, 1268 (1979); Arnold v. Carafides, 282 Md. 375, 382, 384 A.2d 729, 733 (1978).

3 . The intermediate New York court characterized the school board’s failure to detect the placement error through retesting as an "affirmative act” of negligence, which was actionable, and distinguished it from an educational malpractice action based upon negligent failure to instruct properly a student. 64 A.D.2d 369, 410 N.Y.S.2d 99, 109 (1978).

4 . We do not pass here on the question of whether this case indicates a bar to an action against other professionals, normally subject to suit, merely because they are employed by the educational system. As this is not an issue presented by the allegations here, we leave its resolution to an appropriate case.

5 . Although the declaration contains six counts, there are, in essence, only three theories presented — negligence, breach of contract, and intentional infliction of injury. Count II presents petitioners’ intentional tort claims and count V incorporates prior allegations and asserts breach of an "implied contract.” Counts I, III, and VI expressly state negligence claims against the Board or the individual respondents, while count IV alleges breach of a statutory duty to "provide the minor plaintiff with quality education.” The same considerations which act to preclude a damage claim founded on common law for educational negligence will likewise preclude a claim based upon the various educational statutes. Statutory claims similar to that presented here in count IV were rejected in D.S.W. v. Fairbanks No. Star Bor. Sch. Dist., 628 P.2d 554, 556 (Alaska 1981); Peter W. v. San Francisco Unified School District, 60 Cal.App.3d 814, 826-27, 131 Cal. Reptr. 854, 862 (1976), and Donohue v. Copiague Union Free School Dist., 64 A.D.2d 29, 407 N.Y.S.2d 874, 880-81, aff'd 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352 (1979). With respect to the contract claim asserted in count V, what we have said in this opinion concerning the uncertainty of damages, the difficulty in determining legal cause, and the public policy factors precluding negligence claims remains true whether the allegations state breach of contract or tort and we discuss it no further. Smith v. Alameda Cty. Soc. Serv. Agency, 90 Cal.App.3d 929, 943, 153 Cal. Reptr. 712, 719 (1979). The remaining claim, count II, we discuss in the text infra.

6 . In Peter W., the California court dismissed plaintiffs’ claim of intentional misrepresentation for lack of specificity after plaintiffs failed to amend their complaint. In Donohue and Hoffman, however, the New York Court of Appeals did imply in dicta that liability might exist for those charged with educational responsibility where their actions constituted "gross violations of defined public policy.” Hoffman v. Board of Ed. of City of N.Y., 49 N.Y.2d 121, 424 N.Y.S.2d 376, 400 N.E.2d 317, 320 (1979); Donohue v. Copiague Union Free School Dist., 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352, 1354 (1979).

7 . This is not the first time that this Court has recognized suits based on malicious or outrageous conduct in areas where public policy generally precludes liability. See Lusby v. Lusby, 283 Md. 334, 352, 390 A.2d 77, 85-86 (1978) (interspousal immunity not applied to intentional and outrageous acts); Mahnke v. Moore, 197 Md. 61, 68, 77 A.2d 923, 926 (1951) (parent-child immunity abrogated for malicious and wanton wrongs).

8 . We note that petitioners do not allege that any individual members of the school board acted intentionally and maliciously toward young Hunter. Under the doctrine of respondeat superior, the Board can only be held liable for the intentional torts of its employees committed while acting within the scope of their employment. Lepore v. Gulf Oil Corp., 237 Md. 591, 595, 207 A.2d 451, 453 (1965); Tea Company v. Roch, 160 Md. 189, 192, 153 A. 22, 23 (1931); Western Union Tel. Co. v. Rasche, 130 Md. 126, 130, 99 A. 991, 993 (1917); Consolidated Ry. Co. v. Pierce, 89 Md. 495, 502, 43 A. 940, 941-42 (1899). An intentional tort is within the scope of employment where it is carried out in furtherance of the master’s business or is intended in part for the master’s benefit. Lepore v. Gulf Oil Corp., supra, 237 Md. at 595, 207 A.2d at 453; Tea Company v. Roch, supra, 160 Md. at 192, 153 A. at 23; Evans v. Davidson, 53 Md. 245, 249 (1880). See also 2 F. Harper & F. James, The Law of Torts, § 26.9 at 1391 (1956); W. Prosser, Law of Torts § 70 at 464 (4th ed. 1971); 1 Restatement (Second) Agency, § 235, comment a, at 520 (1958); accord Park Transfer Co. v. Lumbermens Mut. Casualty Co., 142 F.2d 100 (1944); Averill v. Luttrell, 44 Tenn.App. 56, 311 S.W.2d 812, 814 (1957); Cary v. Hotel Rueger, 195 Va. 980, 81 S.E.2d 421, 424 (1954); Brazier v. Betts, 8 Wash.2d 549, 113 P.2d 34, 39 (1941); Linden v. City Car. Co., 239 Wis. 236, 300 N.W. 925, 926 (1941). Where, as here, it is alleged that the individual educators have wilfully and maliciously acted to injure a student enrolled in a public school, such actions can never be considered to have been done in furtherance of the beneficent purposes of the educational system. Since such alleged intentional torts constitute an abandonment of employment, the Board is absolved of liability for these purported acts of its individual employees. Consequently, we are not called upon here to consider whether or to what extent the board has another defense available to it under the doctrine of governmental immunity. See, however, Md. Code (1978 & 1981 Cum. Supp.), § 4-105 of the Education Article which waives governmental immunity to a limited extent.