Snowden v. Kittitas County School District No. 401

231 P.2d 621, 38 Wash. 2d 691, 1951 Wash. LEXIS 475

• Court: Washington Supreme Court
• Decided: May 18, 1951
• Docket: 31413
• Status: Published

Opinions

Hamley, J.

Plaintiff, through his guardian ad litem, brought this suit to recover damages for personal injuries sustained when a baseball backstop fell on him while he was crossing a school playfield. The jury returned a verdict for the plaintiff in the sum of $5,898.40. Judgment was entered accordingly, and defendant has appealed.

The facts, in so far as they are pertinent to the issues discussed in this opinion, may be summarized as follows: The respondent, Donald Snowden, at the time of the.accident on March 7, 1947, was six years of age. He resided with his parents within the geographical limits of appellant school district. He attended the kindergarten class of the College elementary school. This is an elementary school operated and maintained pursuant to arrangements between the Central College of Education and appellant school district.

On the morning of the day in question, Donald’s mother had come to visit the school. At approximately 11:00 a. m., Donald was released from that day’s classes. Donald and his mother then left the school to go to their car which was parked across the street. Donald proceeded ahead of 'his mother directly toward the parked vehicle. His path to the vehicle led across the corner of a playfield which was used by the pupils of the school.

The sixth grade pupils had been playing baseball on the field during a recess period which had just ended. They had left standing on this corner of the field an old baseball backstop. The sixth grade boys had lifted it from the ground to an upright position to keep the balls from going past the catcher. The backstop was made of lumber and wire, and was approximately nine feet wide and seven feet high. The students had been warned not to use the backstop because it had not been repaired following the winter of disuse, and its supports were rotten and weak. The sixth grade teacher was not on the playground at the time the backstop was raised.

As Donald proceeded past the backstop, it suddenly collapsed and fell on him, causing serious injuries.

Appellant, by means of a demurrer, motion for nonsuit, motion for directed verdict, proposed peremptory instruction, and motion for judgment notwithstanding the verdict, asserted before the trial court that the action was barred by Rem. Rev. Stat., § 4706 [P.P.C. § 862-1]. The trial court’s actions in overruling the demurrer, rejecting the proposed instruction, and denying the motions, are assigned as error.

Rem. Rev. Stat., § 4706, relied upon by appellant, reads as follows:

“No action shall be brought or maintained against any school district or its officers for any noncontractual acts or omission of such district, its agents, officers or employees, relating to any park, playground, or field house, athletic apparatus or appliance, or manual training equipment, whether situated in or about any schoolhouse or elsewhere, owned, operated or maintained by such school district.”

It is a general common-law rule that a municipal corporation is not liable to answer for the personal torts of its officers, agents or employees, in the absence of a statute expressly declaring it so liable. Shimada v. Diking Dist. No. 12, 139 Wash. 168, 245 Pac. 916. This rule applies to school districts. Howard v. Tacoma School Dist. No. 10, 88 Wash. 167, 152 Pac. 1004, Ann. Cas. 1917D, 792; Bush v. Quinault School Dist. No. 97, 1 Wn. (2d) 28, 95 P. (2d) 33; Casper v. Longview School Dist. No. 122, 5 Wn. (2d) 403, 105 P. (2d) 503; Read v. School Dist. No. 211, 7 Wn. (2d) 502, 110 P. (2d) 179; Briscoe v. School Dist. No. 123, 32 Wn. (2d) 353, 201 P. (2d) 697.

In this state, the rule was abrogated with respect to school districts and certain other public corporations by the enactment in 1869 of Rem. Rev. Stat., § 951 [P.P.C. § 88-3]. Redfield v. School Dist. No. 3, 48 Wash. 85, 92 Pac. 770; Howard v. Tacoma School Dist. No. 10, supra; Stovall v. Toppenish School Dist. No. 49, 110 Wash. 97, 188 Pac. 12, 9 A. L. R. 908; Morris v. Union High School Dist. A, 160 Wash. 121, 294 Pac. 998; Briscoe v. School Dist. No. 123, supra. This statute, in turn, was, by necessary implication, amended by the enactment in 1917 of Rem. Rev. Stat., § 4706 (Laws of 1917, chapter 92, p. 332), quoted above. Swanson v. School Dist. No. 15, 109 Wash. 652, 187 Pac. 386; Stovall v. Toppenish School Dist. No. 49, supra; Read v. School Dist. No. 211, supra; Briscoe v. School Dist. No. 123, supra. The effect of Rem. Rev. Stat., § 4706, therefore, is to restore, in part, the common law immunity from tort liability, enjoyed by public school districts.

This immunity has been applied, and school districts have been exonerated from liability, in four cases involving school athletic activities, which have reached this court since enactment of Rem. Rev. Stat., § 4706. See Foley v. Pierce County School Dist. No. 10, 102 Wash. 50, 172 Pac. 819 (swimming pool); Bailey v. School Dist. No. 49, 108 Wash. 612, 185 Pac. 810 (swings); Bush v. Quinault School Dist. No. 97, supra (exercise bars); and Yarnell v. Marshall School Dist. No. 343, 17 Wn. (2d) 284, 135 P. (2d) 317 (swing).

Respondent advances two reasons why Rem. Rev. Stat., § 4706, should not be considered as barring recovery in the instant case. The first of these is that the baseball backstop which caused respondent’s injuries is not an “athletic apparatus” or “appliance,” within the meaning of that statute. Respondent argues that the backstop had the function of protecting passersby from injury from the ball in play, the same as a screen in front of a baseball pavilion. Respondent points out that the backstop is not something used to exercise upon, such as a swing, a slide, or a chinning bar. Juntila v. Everett School Dist. No. 24, 178 Wash. 637, 35 P. (2d) 78, and Briscoe v. School Dist. No. 123, supra, are cited in support of respondent’s contention.

In the Juntila case, a student was injured when a guard rail gave way while he was sitting in school bleachers watching a football game. This court held that a bleacher seat is not an athletic apparatus or appliance, saying:

“Athletic apparatus, appliances and manual training equipment are all things pertaining to the activities of those engaged in physical training or exercise, and they can have no reference to seats provided for mere spectators who assemble to view the activities upon the athletic field.” (p. 641.)

The Briscoe case involved a school boy who was injured on the school grounds while playing “keep-away” with a football. In holding that a football is not an athletic apparatus or appliance, we said:

“In making a determination of this question, we note, first, that in a broad, general sense, a football might be considered to be an athletic apparatus or appliance. When, however, the relation of the words used, as to each other, and the text of the statute as a whole are carefully studied, we think that the most reasonable interpretation of what the legislature intended by the words ‘athletic apparatus or appliance’ is that it had reference to some sort of more or less permanently located equipment, such as swings, slides, traveling rings, teeter boards, chinning bars, etc., and not something as highly mobile as a football. The words ‘situated,’ ‘operated,’ and ‘maintained,’ as they are used in the statute in reference to ‘athletic apparatus or appliance,’ lend credence to this interpretation, for it is certainly incorrect to refer to a football as being ‘situated in or about any schoolhouse or elsewhere, owned, operated or maintained by such school district.’ ” (p. 365.)

In our view, neither of these cases supports respondent’s position. The baseball backstop here in question may have incidentally served to protect some passersby from injury. The principal purpose of this device, however, was to serve as a convenience to the boys who were playing baseball, so that they would not have to run after the ball in case it was missed by the catcher or fouled by the batter. One of the boys who helped raise this backstop on the day in question testified that this was done “because the balls kept going past the catcher.”

The backstop, unlike the bleacher seats, was not wholly for the use of spectators or anyone other than the players. It was equipment “pertaining to the activities of those engaged in physical training or exercise,” as those words are used in the Juntila case. It was “more or less permanently located equipment,” to apply the expression used.in the Briscoe case, and was certainly not “highly mobile” as the football was there held to be.

Examples of the kind of equipment which are included within the term “athletic apparatus and appliance,” are listed in the Briscoe opinion. These are swings, slides, traveling rings, teeter boards and chinning bars. It happens that each of these is used by climbing on, sitting on, or grasping the equipment. No significance is to be attached to this, however, since no question was there presented as to whether the equipment had to be of a kind which is used in this direct manner. A football is also grasped, yet the court held this not to be an athletic apparatus or appliance. The examples listed in the Briscoe case were given only for the purpose of drawing a distinction between athletic equipment which is “more or less permanently located” and that which is “highly mobile.” The court there made clear, by using the words “such as,” that the examples given were not intended to be all-inclusive.

There are expressions in two of our decisions to the effect that the purpose of Rem. Rev. Stat., § 4706, was to exonerate school districts from liability for an accident which occurs upon any athletic apparatus or appliance. See Stovall v. Toppenish School Dist. No. 49, supra; Bush v. Quinault School Dist. No. 97, supra. The expression in the Stovall case is quoted in the recent Briscoe case in support of the court’s view that the term “athletic apparatus and appliance” refers to equipment which is more or less permanently located.

The Stovall case involved an accident in which a school boy fell from a large steel tank which had been disconnected from the school’s water system and was about to be carted away. The court held that the tank could not be considered an athletic apparatus or appliance, since it was not play equipment intended to be used in connection with any park, playground or field house. In the Bush case, Rem. Rev. Stat., § 4706, was applied to exonerate the school district from liability for injuries sustained when a child fell from exercise bars.

In neither of these cases was the court required to make any distinction between equipment with which the player necessarily comes in contact (such as swings, slides and exercise bars) and equipment which is used in the game but is not necessarily handled by the players (such as tennis nets, basketball baskets, hockey goals, football goal posts and baseball backstops). In the Bush case, this court characterized the exemption provision of Rem. Rev. Stat., § 4706, as “all-embracing.”

The word “apparatus” means a collection or set of materials, implements, or utensils, for a given work, experimental or operative. First State Bank of Perkins v. Pulliam, 112 Okl. 22, 239 Pac. 595; Salinas v. Pacific Tel. & Tel Co., 72 Cal. App. (2d) 494, 164 P. (2d) 905; Webster’s New International Dictionary (2d ed.) “apparatus.”

The word “appliance” is very broad and includes anything applied or used as a means to an end. Cook v. Big Muddy-Carterville Mining Co., 249 Ill. 41, 94 N. E. 90; Honaker v. Board of Education, 42 W. Va. 170, 24 S. E. 544, 32 L. R. A. 413, 57 Am. St. 847; Roberts v. Los Angeles, 7 Cal. (2d) 477, 61 P. (2d) 323; Palmer v. Great Northern Ry. Co., 119 Mont. 68, 170 P. (2d) 768; Webster’s New International Dictionary (2d ed.) “appliance.”

The baseball backstop in question was used by the players for their convenience in playing the game. It was designed for that purpose. Neither the language of the statute, nor any perceivable legislative objective, nor any of our past decisions, reviewed above, leads us to believe that there is any significance in the distinction respondent makes between this equipment and the kind of athletic equipment which school children use by climbing, swinging or sliding. In our view, this baseball backstop is a playground athletic apparatus or appliance within the meaning of Rem. Rev. Stat., § 4706.

Respondent also argues that, assuming the backstop to be an athletic apparatus or appliance, the statute is not applicable in the instant case, because the injury did not occur upon the equipment and in its use by the student.

The Stovall case, supra, is cited in support of this contention. In that case the student was injured while playing upon a steel tank which had not been designed for play purposes. No issue was there presented as to whether the statute applies in the case of injuries sustained by a passerby due to some defect in the apparatus or appliance. The court was concerned with the wholly different question of whether an apparatus or appliance not designed for play purposes, but being actually used for that purpose, falls within the purview of Rem. Rev. Stat., § 4706. In our opinion, the Stovall case lends no support to respondent’s position.

The statute exonerates school districts with respect to

“ . . . any noncontractual acts or omission of such district, its agents, officers or employees, relating to any park, playground, or field house, athletic apparatus or appliance . . . ” (Italics ours.)

“Relating to” means in respect to; in reference to; in regard to. Commonwealth v. Mathues, 210 Pa. 372, 59 Atl. 961; In re Water Supply in City of New York, 109 N.Y.S. 652; Webster’s New International Dictionary (2d ed.) “relate.”

Had it not been for the backstop there would have been no accident. Every allegation of negligence and all the testimony in support of such allegations directly or indirectly pertained, or had reference, to the condition or use of the backstop. It is therefore plain to us that the “noncontractual acts or omissions” complained of here were all acts or omissions “relating to” the backstop.

There is nothing whatever in the language of the statute indicative of the more restricted scope which respondent urges. In order for us to give the statute the meaning contended for by respondent, we would have to read into the statute the italicized words indicated below:

“ . . . relating to injuries sustained by a person while engaged in using any park, playground, or field house, athletic apparatus or appliance . . . ”

We are of the view that Rem. Rev. Stat., § 4706, is applicable in a case such as this, where the injury, caused by the collapse of an athletic apparatus or appliance, is sustained by a passerby who was making no use of the equipment.

In view of the conclusion reached on this branch of the case, it is unnecessary to consider appellant’s other assignments of error.

The judgment is reversed and the cause remanded with instruction to the trial court to dismiss the action.

Beals, Robinson, Mallery, Hill, and Donworth, JJ., concur.