Smiley v. Hart County Board of Education

JONES, Justice. William P. Smiley, Administrator of William Russell Smiley, sued Branstetter Hardware, Inc., on the theory of negligence for the wrongful death of his son, William Russell Smiley. On the night of November 14, 1969, William Russell Smiley attended a ball game at the Hart County High School. On the morning of November 15, 1969, his body was discovered at the bottom of an 8-foot excavation for a water storage tank on the grounds of the Hart County High School. The autopsy attributed the cause of death to exposure. The administrator alleged in his complaint that the excavation had been carelessly and negligently made and left unprotected and unguarded by Branstetter, its agents, servants and employees while acting in the course and scope of their employment. Branstetter filed a third-party complaint seeking to recover indemnity or contribution, against the Hart County Board of Education and against D. M. Belt, Carl J. Wilkerson, L. D. Branstetter, Jr., Obert Jaggers and H. W. Harlow as the duly elected and serving members of the Hart County Board of Education, “sued in their capacity as board members.” Smiley’s administrator filed an amended complaint against the Hart County Board of Education and against the individual members of the Hart County Board of Flducation, “in their capacity as board members,” and alleged that the individual board members negligently and carelessly permitted an excavation to remain unfilled upon their property. A summary judgment was entered dismissing the complaint as to the Hart County Board of Education and the members who composed the board. Smiley’s administrator and Branstetter seek reversal urging that, (1) the doctrine of sovereign immunity of boards of education should be abrogated, and (2) summary judgment was inappropriate as to the individual members of the Hart County Board of Education. Smiley’s administrator contends that his first amended complaint made the members of the Hart County Board of Education parties to the suit in their individual capacity. We need not consider this question. The trial court erred in refusing to permit Smiley to file a second amended complaint against the board members m their individual capacity. CR 15.03. A review of the second amended complaint alleges issues of negligence concerning the individual acts or failure to act of the individual board members. Copley v. Board of Education of Hopkins County, Ky., 466 S.W.2d 952 (1966). We are unimpressed with the arguments of both Smiley’s administrator and Branstetter that this court should renounce the doctrine of sovereign immunity as to school boards. Both appellants concede that this court has long recognized the doctrine of sovereign immunity in this respect. We are not persuaded that the rule announced in Copley should be abrogated. The trial court correctly granted summary judgment to the extent that recovery was [787] sought against the Board of Education of Hart County as a body politic. The trial court erred in refusing Smiley’s administrator permission to file the second amended complaint. CR 15.03 (our emphasis). The individual members of the Hart County Board of Education had the burden of establishing that there was no issue as to any material fact. They had the burden to prove they were entitled to judgment as a matter of law. They failed to meet that burden. New Amsterdam Casualty Co. v. Allen Company, Ky., 446 S.W.2d 278 (1969); 6 Moore’s Federal Practice, 2nd Ed. Sec. 56.17(42), p. 2583. The judgment is affirmed to the extent that it absolves the Board of Education of Hart County, and is reversed in all other respects. OSBORNE, C. J., and JONES, REED and STEPHENSON, JJ., concur. STEINFELD, J., dissented in part and filed a separate opinion.