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Hare v. Pennell

Decided: October 28, 1955.

ARTHUR F. HARE, A MINOR, BY HIS FATHER AND GUARDIAN AD LITEM, ARTHUR HARE, AND ARTHUR HARE, IN HIS OWN RIGHT, PLAINTIFFS-APPELLANTS,
v.
JEAN PENNELL AND BOARD OF EDUCATION OF THE TOWNSHIP OF PENNSAUKEN, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

This action arises from an injury suffered by plaintiff infant on March 24, 1953 in the pre-primer class of the Delair Public School of Pennsauken Township when a classmate struck him in the left eye with a pair of scissors. Defendant Jean Pennell was the teacher in charge of the class. The infant, by his father and guardian ad litem Arthur Hare, and the father in his own right, sued the Board of Education of the Township of Pennsauken and Miss Pennell, jointly, severally and in the alternative.

The complaint was in eight counts. The first and fourth alleged active wrongdoing by defendant board of education; the second and fifth were based on the negligence of the teacher, and the third and sixth sought judgment against both the board and teacher, jointly. The infant plaintiff sought compensatory damages for his eye injury, and the father damages for medical expenses, past and future, and loss of services. In counts seven and eight plaintiffs sought recovery against the board of education by virtue of L. 1938, c. 311 (N.J.S.A. 18:5-50.4), which requires boards of education to save harmless teachers and certain other employees from financial loss arising out of any claim, demand,

suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to any person within or without a school building, provided such teacher or employee was at the time of the accident or injury acting in the discharge of his duties within the scope of his employment.

It may be noted that Arthur Hare, the father, was not appointed guardian ad litem for his son until the second day of the trial. This should have been done at the very start of the suit. R.R. 4:30-2.

The defendant board of education moved for summary judgment in its favor. The motion was argued at the pretrial conference; however, the pretrial order makes no mention of it. On that date counsel for plaintiffs consented to the dismissal of the counts of the complaint alleging active wrongdoing against the defendant board. After hearing argument the trial court dismissed these counts without prejudice, and further ordered that the seventh and eighth counts alleging the right of indemnification be stricken from the complaint. However, no formal order to this effect was signed by the trial judge until March 31, 1955, after this appeal had been taken. In accordance with R.R. 1:2-8(h), counsel for plaintiffs wrote the trial judge informing him of their intention to appeal from his dismissal of the board of education, so that he could file a written statement of his reasons, if he so desired. The trial judge took no action in this regard.

The trial resulted in a verdict of no cause for action, rendered by an 11-member jury because of the illness of one of the jurors at the time the court sent the case to the jury. Plaintiffs appeal from the final judgment entered on the verdict in favor of defendant teacher, and also appeal from the order dismissing the complaint against defendant board. We shall first consider the latter aspect of the appeal.

L. 1938, c. 311 (N.J.S.A. 18:5-50.4) was copied from section 569-a of the New York Education Law of 1910 (now section 3023; 16 McKinney's Consolidated Laws of

New York, c. 16, Education Law, Part 2, section 3023). It has been held that the New York statute does not create a new cause of action against a board of education in favor of an injured person. Massimilian v. Board of Education, etc., Niagara Falls , 261 App. Div. 428, 25 N.Y.S. 2 d 978 (App. Div. 1941). Our courts have also held that our statute was not intended to give a new right of action to an injured party against a school board. Tripus v. Peterson , 11 N.J. Super. 282 (Cty. Ct. 1950); cf. Thompson v. Board of Education, City of Millville , 20 N.J. Super. 419 (App. Div. 1952), affirmed 11 N.J. 207 (1953), where the court considered R.S. 18:5-30 granting school districts immunity from liability for personal injuries resulting from the use of any public grounds, buildings or structures, and pointed out that this act and N.J.S.A. 18:5-50.4 are to be read together and given effect, each within its own sphere.

Plaintiffs' contention that R.R. 4:31-2, relating to joinder of remedies, and R.R. 4:14-1, dealing with third-party practice, permits joinder of the school board as an original defendant, is without merit. R.R. 4:31-2 obviously refers to multiple remedies available to a particular plaintiff, and permits the joinder of claims to encourage adjudication of an entire controversy in a single action. That rule never contemplated that a plaintiff might assert in a single cause of action not only his own claims but the claims of others as well. The benefits of the "save harmless" statute, N.J.S.A. 18:5-50.4, are reserved to teachers and members of the supervisory and administrative staffs of boards of education. Adequate provision is made for the assertion of claims by such individuals against boards of education under the rules governing third-party practice, R.R. 4:14-1 et seq. However, the filing of a third-party complaint is a permissive matter under the language of the rule. There is nothing in the rule ...


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