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Bob Ferguson

AGO 1952 No. 330 - Jun 24 1952
Attorney General Smith Troy


School district not liable for injuries resulting from accident relating to any athletic apparatus or appliance (jumping hurdle).  Under facts as stated, Physical Education instructor having charge of supervision of injured student would not be personally liable for student's injuries, but would be liable for negligently failing to use reasonable care to prevent aggravation of injury.

This is a question of fact.

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                                                                   June 24, 1952

Honorable A. B. Comfort
State Representative
Twenty-sixth District
915 Pacific Avenue
Tacoma 2, Washington                                                                                                              Cite as:  AGO 51-53 No. 330

Dear Sir:

            We have your letter of May 19, 1952, in which you present a factual situation as follows:

            "* * * A small boy about the age of ten and a grade school student is directed by his Physical Education instructor to scale a series of four hurdles.  The boy informs the instructor that he can't, having tried previously, and the instructor over-rides [[overrides]]the protest and the student makes the attempt upon the order of the instructor.  The boy successfully clears two of the hurdles but misses on the third and breaks his leg, but the instructor does nothing for him at the end of the Physical Education period which coincides with the end of the school day.  The instructor allows the lad to hobble home with the help of a small brother.  The boy as a result has to spend the next six weeks with his leg in a cast.  * * *"

             [[Orig. Op. Page 2]]

            You request our opinion as follows:

            "* * * Is the School District liable for the negligence of the School Physical Education instructor for damages and also is the Physical Educational instructor personally liable for damages?"

            It is our conclusion that:

            Under the facts as stated, neither the school district nor the Physical Education instructor would be liable for the student's injuries.  However, if, in the incident involved, the Physical Education instructor failed to take reasonable action to prevent aggravation of the injury after the accident occurred, he would be subject to liability for any such aggravation.  This would be a question of fact.


            Contrary to the general common law rule, a school district is liable for the negligence of its agents or employees by virtue of the provisions of RCW 4.08.120, which was enacted in 1869 (Laws of 1869, § 602; Rem. Rev. Stat. § 951), and which reads:

            "An action may be maintained against a * * * school district * * * for an injury to the rights of the plaintiff arising from some act or omission of such public corporation."

            However, RCW 28.58.030 (§ 1, chapter 92, Laws of 1917; Rem. Rev. Stat. § 4706), provides:

            "No action shall be brought or maintained against any school district or its officers for any noncontractual act or omission of the 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 the school district."

             [[Orig. Op. Page 3]]

            The later 1917 act by necessary implication amends and modifies the provisions of RCW 4.08.120.  Bush v. Quinault School District No. 97, 1 Wn. (2d) 28, 95 P. (2d) 33;Snowden v. School District No. 401, 38 Wn. (2d) 691, 693, 231 P. (2d) 621.  As stated in theBush case, supra,

            "The words of the statute (Laws of 1917, chapter 92, Rem. Rev. Stat., § 4706) exonerating school districts from liability for torts of commission or omission relating to playground and athletic apparatus used in connection with the playground owned, operated or maintained by the school district, areall-embracing.  That statute exempts school districts from liability for any and all accidents which occur upon any athletic apparatus or appliance which is used in connection with any playground owned or maintained by the school district.  * * *" (Emphasis supplied.)

            In the case ofYarnell v. Marshall School District, 17 Wn. (2d) 284, 135 P. (2d) 317, in addition to allegations that the apparatus involved (a swing of excessive height) was a dangerous instrumentality, and that the defendant school district had been notified and warned by the principal of the school that it was obviously dangerous and should be removed, it was further alleged that the plan adopted by the school district which provided for the use of the swing "was so palpably and obviously dangerous and defective as to impress upon the mind of any reasonably prudent person that it was dangerous and unsafe, and that injury to a pupil of said school of the age of plaintiff by the use thereof would necessarily result."  The court nevertheless held that plaintiff had failed to state a cause of action, saying:

            "Section 4706 bars any action against a school district 'for any noncontractual acts or omission of such district . . . relating to any park, playground, or field house, athletic apparatus or appliance' owned, operated, or maintained by the school district.  The situation disclosed by appellant's complaint falls within the bar of the statute."

            TheSnowden case,supra, involved a defective baseball backstop.  It was held that the exemption from liability given school districts by the 1917 act (RCW 28.58.030), was applicable to a situation where a passerby who was not using the equipment was injured by the collapse of the athletic apparatus or appliance.

             [[Orig. Op. Page 4]]

            Our Supreme Court in that case reaffirmed its prior interpretations of the act under which school districts are given a very broad exemption from liability where the injury relates to any "athletic apparatus or appliance" owned or maintained by the school district.  It was there said:

            "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."

            The dissenting opinion of Judge Finley in the Snowden case gives a very comprehensive review of all the decisions of our Supreme Court involving the question of the liability of school districts for negligence under similar circumstances.

            In view of our Supreme Court's consistent interpretation of the provisions of RCW 28.58.030 as being "all-embracing" and as exempting school districts from liability "for any and all accidents," relating to any athletic apparatus or appliance owned or maintained by the school district, we are of the opinion that such exemption would apply to the factual situation presented by you in so far as the question of liability on the part of the school district is concerned.

            As to the second portion of your inquiry which involves the question of the personal liability of the Physical Education instructor, we believe that under the general rule, such instructor would be subject to liability on the same basis as the employee of any other employer.  See 43 Am.Jur. 223, Public Officers, § 466.  Under the facts stated, there is nothing to indicate negligence prior to the accident.  However, the statement of facts indicates a possible suggestion of negligence with respect to aggravation of the injury.

            We are of the opinion that the Physical Education instructor of the school district who had charge of the supervision of the student at the time of injury would be liable for negligently failing to use reasonable care, in the light of all the circumstances, to prevent the accident or the aggravation of the student's injury.  This is basically a question of fact.

             [[Orig. Op. Page 5]]

            We caution that it is obviously impossible to purport to pre‑judge [[prejudge]]any specific case of this type.  The expressions of opinion hereinabove presented, therefore, are not to be construed as an attempt to determine the merits of the particular incident involved.  In so far as the brief statement of facts will permit, we have merely used the factual situation presented by you for the purpose of applying what we believe to be the correct general principles of law.

Very truly yours,

Attorney General

Assistant Attorney General