Dobbins v. Board of Education of Henry Hudson Regional High School

Per Curiam. On November 3, 1967 Charlene Dobbins (Charlene), a 16-year-old junior at Henry Hudson Regional High School, was injured when she fell during gym class. The class commenced indoors with physical fitness tests and concluded its last several minutes outdoors under the supervision of its teacher, defendant Betty Kimber (Kimber). Miss Kimber instructed the class, in groups of five to eight, to run on a macadam driveway around a grass island located in a parking lot. There was conflict in the testimony as to whether the activity was actually a race and whether Kimber was timing the girls with a stopwatch. The length of time to run the course was estimated to b^ from a minute to a minute and a half. Charlene, in one of the last groups to run the designated course, testified that she slipped on loose gravel or pebbles at a point where the macadam declined. She fell to the pavement and sustained serious injuries to her knee. The complaint was in four counts. The first and third counts sought judgments in favor of the infant plaintiff. The second and fourth counts sought judgment in favor of her mother, who sued per quod. The target of the first count was the Board of Education of Henry Hudson Regional High School (Board). It was contended in this count that the Board was negligent in that it and its agents, servants and employees * * * so carelessly and negligently conducted said gymnastic activities that they called upon and directed the infant plaintiff herein to do and perform certain activities in an area poorly constructed for the intended use and carelessly and negligently failed to properly [17] supervise and control said activities and further failed to provide a safe place for participation in gymnastic activities by students and were negligent in such other and further respects as shall be shown at the time of trial. The third count sought a judgment against Kimber, the gym teacher, on the grounds of negligence wherein it was contended that she * * * so carelessly and negligently conducted said gymnastic activities that she called and directed infant plaintiff herein to exercise in an area poorly constructed for the intended use and carelessly and negligently failed to properly supervise and control said activities and further failed to provide a safe place for participation in gymnastic activities by students and was negligent in such other and further respects as shall be shown at the time of trial. We note that the Superintendent of Schools (who was acting as Principal at the school) was not joined as a defendant. In response to special interrogatories, the six man jury brought in a unanimous verdict against the Board, a verdict of no cause for action in favor of Kimber by a vote of 5 to 1, and a damage verdict of $25,000 against the Board by a vote of 5 to l.1 Defendant Board appeals from the judgment entered against it. Plaintiffs do not appeal from the judgment in favor of defendant Kimber. The trial court, on its own motion, removed the question of contributory negligence from the jury’s consideration. The validity of that action is one of the issues before us. But the [18] crucial question springs from the court’s denial of defendant Board’s motion for dismissal of the complaint on the ground that N. J. S. A. 18A:20-35 barred recovery against it. That statute (in effect at the time of the accident and since repealed) read as follows: Liability for injury to person from, use of public grounds and buildings. No school district shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding. It is incontrovertible that the injury to the infant plaintiff arose from the use of the school grounds. Indeed, in their brief, plaintiffs concede that if their claim is bottomed on a defect in design, construction, or maintenance of school property, the immunity statute applies. However, they assert that, when their claim “makes reference” to an “activity” being conducted on the property, the immunity statute is not a bar, citing Estelle v. Bd. of Ed., Red Bank, 26 N. J. Super. 9 (App. Div. 1953), modified on other grounds 14 N. J. 256 (1954). In that case the Appellate Division explored the question as to what the Legislature meant by the statutory language “injury from the use” of school property. The court cited several cases where the statute was applied so as to bar a claim. Falcone v. Bd. Education, Newark, 17 N. J. Misc. 75, 4 A. 2d 687 (C. P. 1939) (school girl hurt by a falling partition in washroom); Kane v. Board of Education of Montclair, 20 N. J. Misc. 7, 23 A. 2d 277 (Sup. Ct. 1941) (plaintiff fell down stairs which the Board had negligently failed to light); and see Thompson v. Bd. of Ed., Millville, 20 N. J. Super. 419 (App. Div. 1952), aff’d 11 N. J. 207 (1953) (plaintiff slipped on highly polished high school floor). See also Terranella v. Union Bldg, and Construction Co., 3 N. J. 443, 447 (1950) (child killed while playing with heavy concrete pipes on public playground). .And see application of the companion statute (N. J. S. A. 40:9-2) which granted-immunity to counties and municipalities for [19] injuries “from the use” of public lands and buildings: Fahey v. City of Jersey City, 52 N. J. 103 (1968) (falls in playground areas of public parks); Schwartz v. Stockton, 32 N. J. 141 (1960) (fall in borough hall); Zapf v. Bd. of Chosen Freeholders, Middlesex County, 87 N. J. Super. 426 (App. Div.), certif. den. 45 N. J. 586 (1965) (fall on wet floor in courthouse); Doerr v. Newark, 128 N. J. L. 491 (Sup. Ct. 1942) (fall in City Hall as a result of negligent maintenance of the premises). In Estelle, the court said: When does the injury result from the use of the building? Where the alleged cause of injury was negligence in waxing the floor or failure to light the stairway or keep the washroom partition in good repair, the statute was deemed a protection. Let us say that the injury springs from the use, if it is caused by any defect in the design, construction, or maintenance of the structure, but not if it arises from activities carried on there ■ — ■ the x-ray operations. This is a very tentative classification, but it suffices for the present case. [Emphasis added], While plaintiffs here disavow any claim that they charged defective maintenance of the parking lot, nevertheless the fact is that the injuries to the infant plaintiff, if her allegations are true, were caused by a defect in the maintenance of the parking lot. The statute therefore bars recovery against the board. However, plaintiffs, citing Titus v. Lindberg, 49 N. J. 66 (1967), assert that the Board was liable for failure to properly supervise the area. But such lack of proper supervision was rested in the alleged default by defendant Kimber, the teacher in whose trust the students were placed. And she was found to be free of negligence by the jury. Therefore, no negligence, through her, can be imputed to defend Board. There is some suggestion in the record ■ — ■ though no competent proof2 — that the Supe,rintendent of Schools [20] was negligent in failing to reasonably safeguard the students in the use of the driveway and that his negligence is imputable to the defendant Board. There is no evidence that the Superintendent directed that the running be done on the driveway or that he knew that there was gravel on it which rendered it unsafe. Even if that were not so, in our view, the immunity statute would still bar recovery against the Board. The test under the statute is not what negligence caused the injury but whether the injury arose from the use of the property. That is what the statute says. Thus the cases of Titus v. Lindberg, supra, and Jackson v. Hankinson and Bd. of Ed. of New Shrewsbury, 51 N. J. 230 (1968), are inapposite here. There the injuries did not arise from the use of school property. By no stretching of language or logic can it be said that the injuries caused by negligently tossed paper clips arose “from the use” of the school property. In neither case was the immunity statute mentioned or implicated. But even if we divert our attention from the statute to alleged negligent supervision of the Superintendent, his duty or any violation thereof would be no different from that of the teacher who conducted the running exercises in the driveway. Since the jury found the teacher free from negligence it would be inconsistent to impute liability to the Board for the Superintendent’s similar actions or failure to act. Further, any negligence of the Superintendent could only be imputed to the Board on principles of respondeat superior. That doctrine was not charged by the trial judge and there was no request that it be charged. Therefore liability of the Board cannot be predicated upon a theory that was not in the case. We understand the dissent to interpret the immunity statute as applying only when the school property involved is being put to its “ordinary” use and that it does not apply, [21] as the dissent says, when it is “being used for a purpose other than that for which it was primarily designed.” This stress on the “ordinary” use of the school premises is not, in our judgment, a valid construction of the statute. It is not justified by the statutory language. Indeed one would ¡have to insert the word “ordinary” as modifying “use” to warrant such interpretation. We have no more right to make such insertion than the court had the right to insert the word “public” as modifying “use” in Schwartz v. Stockton, supra, 32 N. J. at 153. To so construe the statute as meaning “ordinary” use amounts to judicial legislation, a function forbidden to us, as clearly set forth specifically as to this very statute in Thompson v. Board of Ed., Millville, supra. As in Thompson, we consider the words of the statute to bo free of ambiguity or obscurity, clear and understandable, with the evident purpose of non-liability on the part of the Boards of Education under these circumstances. 20 N. J. Super. at 431. Nor do we hold, as the dissent suggests, that we are willing to “confer immunity any time an accident occurs upon public property.” Needless to say in both Titus and Jackson, the accidents occurred “upon” public property but, as we have said above, in neither case is the immunity statute implicated, because the accidents did not occur “from the use” of the property. The dissent would likewise analogize the Board’s duty to that of a shopkeeper to his customers to keep his premises reasonably safe for their purposes. It argues that if a shopkeeper owes such a duty to his customers a school board should have no less a duty. True, it may have been the part of wisdom to so provide. Indeed in applying its wisdom the Legislature later repealed the statute (L. 1972, c. 45, § 59:12 — 2), but at the time of this accident it was in effect. As was said by the Supreme Court, speaking through Justice Hall in Schwartz v. Stockton, supra, concerning the im [22] munity statute then applicable to counties and municipalities, N. J. S. A. 40:9-2: It must be recognized, however, that here we are concerned with an explicit legislative declaration of public policy and not with a common-law principle. Our duty, therefore, in determining applicability in a particular situation, is to give effect to the statutory command to the full extent of the lawmakers’ intent as we ascertain it, regardless of any view of the social desirability of the legislation. [32 N. J. at 148], So, too, here. It is not for us to consider the statute as repealed before the Legislature took that action, nor is it within our power to hold it inapplicable when it was in fact in force. As said in Fahey v. City of Jersey City, supra: To deny recompense to children injured on municipal playgrounds by reason of the nature or condition of the grounds may be a harsh result, but the result is dictated by R. S. 40:9-2. The amelioration of this situation must therefore come from the legislative branch. [52 N. J. at 109]. Eor the foregoing reasons we reverse the judgment in favor of the plaintiff and direct that judgment be entered in favor of defendant Board of Education. Because of what we have said above it is unnecessarj’ to consider defendant Board’s further contention on appeal to the effect that the trial court erred in striking the defense of contributory negligence. Nevertheless, because of the possibility of further review, we state that we agree with the Board’s contention. There was sufficient evidence to submit the issue of contributory negligence on the part of this 16 year old plaintiff to the jury. Footnotes [1] Curiously, the order for judgment entered on March 29, 1973, the day after an order denying a new trial was signed, “[ojrdered and adjudged that judgment be entered in favor of the plaintiffs, Charlene Dobbins, an infant by her Guardian ad Ditem, Pauline Dobbins Whitney and Pauline Dobbins Whitney, individually, in the amount of Twenty-five Thousand Dollars ($25,000) plus interest and costs.” We make no comment other than to observe this apparent irregularity and departure from that which was contended for in the complaint, i. e., compensatory damages for the infant and medical expense damages and loss of services for the parent, individually. [2] The only testimony in this respect was by defendant Kimber that the Superintendent knew that the girls would run from time to time [20] in the parking lot area, that he had walked there, and that he “knew what the area looked like.” The latter was really an incompetent conclusion of the witness, if related to the gravel on the parking lot.