Fritz, Lynch and Trautwein. Fritz, J.A.D. (dissenting).
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 be 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
The third count sought a judgment against Kimber, the gym teacher, on the grounds of negligence wherein it was contended that she
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 1.*fn1 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
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 That statute (in effect at the time of the accident and since repealed) read as follows: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
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 proof*fn2 -- that the ...