For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis and Schettino. For affirmance as to Smith and reversal as to Board of Education -- Justices Hall and Haneman. The opinion of the court was delivered by Jacobs, J.
The Appellate Division affirmed a judgment for the plaintiffs against all three defendants, Lindberg, Smith and the Board of Education. We granted certification on the application of Smith and the Board of Education.
On October 25, 1963 the plaintiff Robert A. Titus, who was then nine years old and a student at the Fairview School in Middletown Township, rode off from home on his bicycle to school. He arrived at the school grounds at about 8:05 A.M., entered along the bus driveway, and headed for the bicycle rack on the west side of the school building. As he came around a corner of the building, he was struck by a paper clip
which the defendant Richard Lindberg, then thirteen years old, had shot from an elastic band. Robert was seriously injured.
Lindberg was not then a student at Fairview but attended the Thompson School which was some distance away. Fairview had been designated by the school system's transportation coordinator as the pickup site for three schools including Thompson, and Lindberg was one of many students who customarily boarded school buses there. Up to two years earlier, Lindberg had attended Fairview and its records described him as "very rough" and a "bully." On the morning of the incident he arrived early at Fairview, fooled around with an elastic band for a while, and struck a student in the back with a paper clip about 5 minutes before he shot the one which injured Robert.
Though the school doors at Fairview did not officially open until 8:15 A.M., it was customary for quite a few Fairview students to start arriving on the school grounds at about 8 A.M. Some would arrive on their bicycles, as did Robert, and others would arrive on foot. Oftentimes the students played the game of "keep away" before the school bell rang. An early arrival would obtain a ball from a classroom and a team of students would try to keep it away from a second team. The first bell rang at 8:15 A.M., the students were supposed to be in their seats by 8:30 A.M. when the late bell rang, and classes began at 8:35 A.M.
The defendant Smith had been principal of Fairview since 1960. He testified that he "did the supervising of the arrival of the children" and that, although he had known of prior pranks and deportment problems connected with Lindberg, he was not aware of any earlier incidents involving conduct such as his shooting of paper clips. Smith's practice was to arrive at the school grounds at 8 A.M. and he had instructed his teachers to arrive at that time and prepare for and be in their classes at 8:15 A.M. so that they could maintain order as the students filed in. On his arrival at 8 A.M. he would supervise deliveries by the milk truck and would watch out
for the safety of children in the immediate area. He would then walk from the east side of the school to the west side where the buses began to arrive at 8:15 A.M. Sometimes he would walk through a corridor within the building and at other times he would walk along the outside of the building. At the time of the incident, he was walking inside the building. As he passed one of the windows of the building, he looked out and saw a group gathered around the stricken Robert. He went to the scene to administer assistance.
There were 560 students at Fairview and approximately 70 or 80 additional students arrived at the school grounds to board the buses. There were, in addition to administrative and part-time personnel, 19 full-time classroom teachers on the Fairview staff but none of them had been assigned any responsibilities in connection with the supervision of students before their entry into the classrooms. Smith testified that he made the rules governing the conduct of students on the school grounds and that he was charged with that responsibility. Although he stated that he told the students that school arrival time was from 8:15 A.M. to 8:30 A.M., he acknowledged his awareness that students began arriving at 8 A.M. and stated flatly that he maintained "supervision outside the building on the grounds between eight and 8:30."
The complaint, which was filed in the Law Division by Robert through his father Calvin as guardian ad litem and by his father individually, contained several counts. They charged the defendant Lindberg with having negligently shot the paper clip which injured Robert, the defendant Smith with having negligently failed to exercise supervision with the resulting injury, and the defendant Board of Education with having "actively and affirmatively failed to provide the necessary safeguards." After a full trial, the jury returned a verdict for the plaintiffs in the aggregate sum of $41,000 against all three defendants. A motion for new trial was denied by the ...