Yarnell v. Marshall School District No. 343

¹ Reported in 135 P.2d 317. This action was instituted by C.O. Yarnell, the father of Mary Frances Yarnell, a minor seven years of age, both in his capacity as guardian ad litem of his daughter and on his own behalf, against Marshall school district No. 343, a municipal corporation, for the recovery, as guardian, of heavy damages for injuries suffered by the little girl, and, on his own behalf, for special damages in connection with the same matter.

In September, 1941, Mary enrolled as a student in the public school conducted by defendant. The complaint alleged that the school district had negligently adopted a dangerous appliance for the use of pupils attending its school in obtaining physical exercise, maintaining on the playground a swing approximately fifteen feet in height, to be used by the young pupils; that, by reason of its considerable height, the swing was dangerous, and that the defendant negligently failed to exercise proper supervision over pupils of tender years in the use of the swing; that Mary undertook to use the swing in the manner in which it was intended to be used, and, while swinging thereon to a considerable height, with another pupil, became frightened and fell from the swing, sustaining extremely painful, severe, and permanent injuries, for which judgment was sought. Special damages were asked by plaintiff on account of expenses incurred by reason of Mary's injuries, and for loss of services.

Defendant demurred to the complaint upon several statutory grounds, including the ground that the same failed to state facts sufficient to constitute a cause of action against the defendant, and, after argument, the trial court sustained this demurrer. It may be assumed that the demurrer was sustained upon the ground mentioned. Plaintiff elected to stand upon the complaint, refusing to plead further, and judgment of dismissal was entered, from which this appeal was prosecuted.

Error is assigned upon the entry of the order sustaining the demurrer, and upon the entry of judgment dismissing the action. [1] Rem. Rev. Stat., § 4706 [P.C. § 4897] (Laws 1917, chapter 92, § 1), reads as follows:

"No action shall be brought or maintained against any school district or its officers for any noncontractual acts or omission of such district, its agents, officers or employees, relating to any park, playground, or field house, athletic apparatus or appliance, or manual training equipment, whether situated in or about any schoolhouse or elsewhere, owned, operated or maintained by such school district."

The recent case of Casper v. Longview School Dist. No. 122,5 Wash. 2d 403, 105 P.2d 503, turned upon the statute above quoted, and our previous decisions in actions of a similar nature against school districts were discussed. The decision in the case of Bowman v. Union High School Dist. No. 1, 173 Wash. 299,22 P.2d 991, was overruled, and a judgment in favor of a father for damages on account of the death of his son, who died from injuries received in the course of the operation of manual training equipment in the Longview high school, was reversed, with directions to dismiss the action.

In the case of Swanson v. School Dist. No. 15, 109 Wash. 652,187 P. 386, an action against a school district for the recovery of damages suffered by a minor, who was seriously injured by a circular saw maintained and operated in the manual training department of the school, it was held that the action was barred by the section of the statute above quoted.

In the Bowman case, above referred to, a complaint filed on behalf of a student in the manual training department of a high school maintained by the defendant, in which it was alleged that the student was injured by a defective planer maintained by the defendant in its manual training department, was held good, and the judgment of the superior court dismissing the action, after sustaining a demurrer to the complaint, was reversed.

In the Casper case, supra, this court sitting En Banc unanimously held that the Bowman case was not only out of harmony with two other of our decisions, but was in direct conflict with the decision in the Swanson case, supra, theBowman case being accordingly overruled.

In the case of Stovall v. Toppenish School Dist. No. 49,110 Wash. 97, 188 P. 12, 9 A.L.R. 908, a judgment in favor of a minor student, on account of damages for personal injuries received while playing with a steel tank which had been left upon the school playground, was affirmed, it appearing that the tank was no part of the playground equipment, and that, for this reason, the school district was not exonerated from liability by § 4706, supra. The legislative intent to exonerate school districts from liability for accidents occurring in connection with the use of regular athletic apparatus on any playground was recognized.

In the recent case of Bush v. Quinault School Dist. No. 97,1 Wash. 2d 28, 95 P.2d 33, a judgment in favor of a minor against the school district, for injuries suffered by the minor as the result of alleged negligent maintenance of playground apparatus and of improper supervision of school children using such apparatus, was reversed, with instructions to dismiss the action. In the course of the opinion, we said:

"The words of the statute (Laws of 1917, chapter 92, Rem. Rev. Stat., § 4706) exonerating school districts from liability for torts of commission or omission relating to playground and athletic apparatus used in connection with the playground owned, operated or maintained by the school district, are all-embracing. That statute exempts school districts from liability for any and all accidents which occur upon any athletic apparatus or appliance which is used in connection with any playground owned or maintained by the school district. Bailey v. School Dist. No. 49, supra, [108 Wash. 612,185 P. 810]; Stovall v. Toppenish School Dist. No. 49, supra, [110 Wash. 97, 188 P. 12]; Juntila v. Everett School Dist. No.24, supra, [178 Wash. 637, 35 P.2d 78]."

In the Casper case, the opinion in the Bush case was cited with approval.

In the case at bar, appellant argues that, upon the allegations of the complaint, it appears that respondent district adopted a dangerous program for the use of pupils, including Mary Yarnell, in obtaining physical exercise, and maintained as a part of that program the swing above described, which appellant alleges was an extremely dangerous appliance and instrumentality to be used by Mary and other pupils in attendance on the school; that the swing was dangerous if used by young children, because of its extreme height; and that respondent was also negligent in failing to adopt and enforce rules or regulations preventing the use of the swing by young children, and negligently failed to exercise proper supervision over the use of the swing by the smaller children. In this connection, appellant also alleges that respondent had been notified by the principal in charge of the school that the swing was a dangerous instrumentality for the use of pupils of tender age, and should be removed from the playground.

Appellant argues that our previous decisions are not here controlling, because the complaint alleges that respondent, in equipping the play field, included with other appliances for the use of the children the swing above described, which, it is argued, was so manifestly dangerous if used by children of tender years as to require that respondent be held liable because it adopted a plan which was "so palpably and obviously dangerous and defective as to impress upon the mind of any reasonably prudent person that such a plan would necessarily result in injury."

Appellant refers to Rem. Rev. Stat., § 950 [P.C. § 8393], which provides that certain public corporations, including school districts, may maintain actions in their corporate character, and § 951 [P.C. § 8394], which reads as follows:

"An action may be maintained against a county, or other of the public corporations mentioned or described in the preceding section, either upon a contract made by such county or other public corporation in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation."

These sections were enacted by the legislature in 1869, and were considered by this court in the case of Redfield v. SchoolDist. No. 3, 48 Wash. 85, 92 P. 770, in which it was held that a complaint which alleged that a pupil who was injured in a school building by the overturning of a bucket of scalding water, stated a cause of action.

Appellant also cites the case of Howard v. Tacoma School Dist.No. 10, 88 Wash. 167, 152 P. 1004, Ann. Cas. 1917D, 792, in which a judgment for the recovery of damages in favor of a pupil six years of age, who was injured by falling from a ladder in the school basement, the ladder being a part of the equipment provided for use by the students in physical exercises, was affirmed. This court held that, while the district in maintaining the school building was acting in a governmental capacity, and for that reason not liable at common law, the school district could be held liable under § 951, supra.

Appellant argues that, while § 4706, supra, was enacted to revive the defense of governmental function, in so far as the operation and maintenance by school districts of playground apparatus and manual training equipment are concerned, appellant's cause of action exists independently of §§ 950, 951, and is not barred by § 4706.

The case is before us upon a judgment of dismissal upon sustaining a demurrer, all well pleaded facts in appellant's complaint standing admitted.

Appellant relies upon certain language of the supreme court of Oklahoma, in the case of Lewis v. Tulsa, 179 Okla. 176,64 P.2d 675. This was an action against the city for the recovery of damages sought by the plaintiff, who was injured by reason of an alleged defect in the city sidewalk. The trial court sustained a demurrer to the complaint, and the judgment of dismissal was affirmed on appeal. In discussing the question of liability on the part of a municipality, the court called attention to the fact that it has been held

"That when the plan adopted creates a condition so manifestly dangerous that no reasonably prudent man would sanction its existence, the municipality may be held responsible for resulting injuries."

The court observed that this principle is a limitation upon the general rule, and concluded that a municipality should not be held

". . . responsible for errors in judgment in the adoption of a plan for public improvements such as a sidewalk, and liability cannot attach by reason of a defect inherent in the plan adopted, unless the condition created by the adoption of such plan and the construction of the improvement in accordance therewith is so palpably and manifestly dangerous that all reasonable men must agree that it was unsafe, in which case the liability attaches by reason of failure to correct rather than by reason of the adoption of the plan."

As the defect consisted of a perpendicular drop in the sidewalk, fourteen inches in height, at an unlighted place, it would seem that the supreme court, in affirming the judgment of dismissal went a long way towards limiting the principle which it suggested should be applied in certain cases.

In the case of LaFayette v. Clark, 76 Ind. App. 565,132 N.E. 651, the appellate court of Indiana observed that

"It is well settled that, while a municipal corporation is not liable for mere errors of judgment in adopting a plan for the improvement of a street, it may be liable where a defective plan is adopted, resulting from negligence in making the selection, rather than from error in judgment."

This case also involved an action against the city for damages resulting from a defect in its streets.

The opinion of the court of appeals of Kentucky, in the case ofProvidence v. Hunter, 231 Ky. 72, 21 S.W.2d 135, is to the same effect.

These cases are not controlling here.

The case at bar is controlled by § 4706, supra. The language of the statute is plain, and the legislative intent is clear. In the case of Bailey v. School Dist. No. 49, 108 Wash. 612,185 P. 810, the section was held to be retroactive and to constitute a defense against an action against a school district for injuries to a student suffered in using playground apparatus, although the action was commenced before the law became effective.

Section 4706 bars any action against a school district "for any noncontractual acts or omission of such district . . . relating to any park, playground, or field house, athletic apparatus or appliance" owned, operated, or maintained by the school district. The situation disclosed by appellant's complaint falls within the bar of the statute.

The judgment appealed from is affirmed.

SIMPSON, C.J., BLAKE, and ROBINSON, JJ., concur.