Banks v. Sellers
294 S.E.2d 862
Va.
1982
Check Treatment

*1 Richmond Lynette Banks, et al. B.

Joseph Sellers, et al. B.

September No. 791850. Record Russell, JJ., Poff, Cochran, Thompson, Stephenson, Present: Compton, Retired Justice. Harrison, *2 Moenssens, Susan G. Moenssens (Moenssens & brief), on for appellants. Jr., P.

Joseph Rapisarda, Assistant County Attorney (William Broaddus, Tokarz, G. County J.T. Attorney; Assistant County brief), on Attorney, appellees.

THOMPSON, J., delivered the opinion the Court.

In this the sole issue is appeal whether a im- plea is available munity to a division superintendent of schools and a in a principal negligence action.1 Banks, B. student, Lynette public high school was cut and student, Goode, stabbed by another Novita L. on school premises during school Sellers, hours. Banks alleges that B. Joseph Division Superintendent Schools, of Henrico County Public and Colin G. Steele, School, Principal Henrico High failed to negligently a safe provide environment for her.

I. Present State the Law. In recent we years, have considered several cases sov- involving ereign pleas, we think it immunity to review appropriate our briefly holdings in each. Board,

In Kellam v. School 202 Va. 117 S.E.2d 96 (1960), the sustained plaintiff injuries at a concert at a personal junior high school which the School Board had leased to a private to operator whom had plaintiff an admission paid charge. The plaintiff charged the School Board negligent to failing maintain common passageways in a safe condition. reasonably We held that the School Board was immune from for tortious liability since it was a injury governmental agency arm of the state and 21, 1975, therefore, This claim arose on November we are not concerned with the Act, Virginia 1982), Tort Claims (Supp. applies Code 8.01-195.1 to -195.8 which §§ 1, 1982, accruing July claims compensating on or after or the statute victims of crime. 1982) (Supp. apply occurring Code 19.2-368.1 to -368.18 which does not §§ crimes prior July of its duties peformance governmental capacity

acted law. imposed by Albrite, v. School Board and

In Crabbe while injury being sustained a hand student S.E.2d tool. The his teacher on the use of a student power instructed by because the negligent that the School Board was claimed and that the teacher was defective and improperly equipped, tool use of the defective tool and improp- negligent permitting holding the student in its use. Consistent with the instructing erly Kellam, School Board was performing gov- we held that the therefore, and, was immune and not liable for ernmental function as a result of the sustained injuries pupil personal that, However, of the despite the teacher. Board, teacher, im- in his individual was not capacity, unit and thus liable governmental mune as an employee negligence. for his own Harlan,

In Lawhorne v. *3 his a severe blow on head. receiving Lawhorne died 16 after days Administrator, the Assis- In action the Chief against a Administrator, of Vir- University and a intern surgical tant had mis- Lawhorne’s widow intern ginia alleged Hospital, and the Lawhorne’s diagnosed injury procedures employed by that, We held were and under inadequate improper. the Hospital which is an organ the doctrine of a sovereign immunity, hospital tort, in that an adminis- state is immune from actions and the discretion- who functions or exercises performs supervisory trator of his is also immune. scope within the ary judgment employment dis- intern since he exercised This was extended to the immunity as to who themselves judgment persons presented cretion and “In these duties performing room of the emergency hospital. the his either to judgment, in the exercise of best he was required, and admit them to the release the or to treat treat and patients 408, 200 S.E.2d at 572. 214 Va. at hospital.” 53, we Short v. 220 Va. 255 S.E.2d Griffitts, which granted immunity reversed a lower court decision coach, director, building baseball to a school’s athletic glass fell on broken while when a student and grounds supervisor relied on Crabbe and outdoor track. We running on the school’s defendants, did not that, as employees, individual since the Board, to the School afforded the enjoy governmental acts of responsible were their they simple ordinary negligence. Jane,

More in James v. recently, (1980), we were with issue a em- faced the whether physician, state ployed by agency hospital practicing operated by such be an should immune from an action for his agency, negli- i.e., for his to exercise gence, failure reasonable care attending There, we held: patient. A failure use such care in the is a patients treatment duty violation the and a patients departure from a condition of their who employment. A fails to use physician reasonable care in the of a acts own treatment at his patient risk, is not entitled to of sovereign invoke doctrine immunity. at S.E.2d at 114.

Further, James enumerated the factors to be considered in deciding where lines of immunity shall be drawn. They office; were (1) function of (2) the use of judgment discre- (a tion determinative); (3) consideration not necessarily de- gree control direction exercised state. at by the connection, 267 S.E.2d at 113. In this the United States Supreme Court said in Harlow v. 813-14 recently 457 U.S. Fitzgerald, (1982):

The resolution of immunity questions inherently requires evils balance between the inevitable in available alterna- tive. . .. cannot be that claims fre- seriously disputed [I]t against run as well quently innocent as guilty—at officials, cost not to the as a only defendant but to the society whole. These costs social include expenses litigation, *4 issues, the diversion of official from pressing public energy and the able deterrence of citizens from of acceptance public office. there is the that of will Finally, danger being fear sued resolute, the ardor of all but the most or the most “dampen unflinching discharge of irresponsible [public officials] their duties.” [Citation omitted.]

With this we turn consideration the dif- background, now a of ferent offices. Division Superintendent.

II. in Acts 1869- genesis had its system school public The present pertinent part: c. which provided by shall be administered system school 2. The free public education, a su- authorities, board of wit: a following instruction, of county superintendents of public perintendent schools, school trustees. district of schools county superintendent

14. The duties each follows, shall be as viz: occa- suitable all upon the school system

First—To explain of education sions, and desire an appreciation and to promote in his power. means all by proper among people and school all the schools visit and examine Seventh—To into to inquire as often as practicable, under his care districts of study the course management, to their relating all matters therein, and disci- their text books instruction and mode of sites, schoolhouses, out-buildings, of the the condition pline, concerns the into whatever general, appendages, schools under his free public usefulness perfection of the and official papers to examine the records supervision; districts, school trustees with and counsel the to advise duties, to call especial and teachers in relation to regula- laws or or violations of neglect attention to any thereto; .... pertaining tions 1869-70, c. 259 at 406-07.

Acts court said: Miller, (1886), this In Pendleton county superintendents office of It is palpable office, is a constitutional free schools public lodged by office is expressly from that of removal education, and upon for cause constitution with the board incumbents, to confirmation subject notice to the senate. continued county superintendent

This method of selection Educa- State Board of 1928. revision until the constitutional

173 Carwile, 663, 669, Va. tion v. 194 S.E. 856-57 we said:

Our Constitution revised 1928. In revision the Governor, the State board vested appoint section 130. Power to division sub- appoint superintendents, Senate, it, to confirmation from and ject by taken lieu thereof it was to the required certify several local a list of eligibles, schools boards reasonable “having aca- demic and business and qualifications,” from that list super- board, intendents were to be selected the local section Present constitutional and have not statutory provisions materially Const., See this. art. VIII. changed statutes, Our analysis provisions, constitutional precedents convinces us that a superintendent division is a supervi official who sory exercises powers involving a considerable degree case, judgment discretion.2 Under the circumstances of this we hold that the division is entitled to superintendent immunity. High Principals.

III. When the duties of the division and the superintendent is, school are it is principal compared, apparent principal school, for his Al- essentially counterpart superintendent.3 restricted, though fundamental is diminished and authority the function is very similar. The still principal performs large number and managerial discretional functions in the school and, therefore, is entitled to immunity. the same

The judgment the lower will be court

Affirmed. following general superintendent: The code sections outline duties of division -70, 1982), (1980 Supp. Code 22.1-58 to -277 Code §§ 22.1-293 §§ 22.1-295, (1980). Code -297 §§ present relating (1980 Supp. principals The statutes are Code 22.1-293 § 1982) (1980). and Code 22.1-277 §

COMPTON, J., concurs in result.

COCHRAN, J., dissenting. *6 Lawhorne v. in

The the is that majority expressed rationale of Harlan, (1973), agents that em- 200 S.E.2d 569 of immune from liabil- personal an immune are ployees employer in duties for negligence performance discretionary for the of ity Lawhorne, 214 Va. at my As I stated in dissent employer. 408-09, 572-73, could not be recon- 200 S.E.2d at this rationale v. Board and Al- ciled with the views in Crabbe School expressed brite, (1968), 209 S.E.2d where a Va. 639 held not from for liability negli- teacher was entitled to immunity saw. a instructing student the use a gence v. in Short We returned to the sound of Crabbe principles Grif- we held that an 255 S.E.2d where fins, coach, director, buildings a athletic and a supervisor sover- successfully plead school could not grounds public high they that eign judgment alleged where the motion It that alleged had failed to their duties. was negligently perform student, he glass when fell on broken plaintiff, injured the defendants had failed to establish on school and that property, and in- to the to procedures property safely, supervise maintain to warn of inspect struct custodial to the personnel, premises, dangerous the We the case to fac- permit condition. remanded maintenance, and in- tual determination whether the supervision, defen- among of the school’s athletic were spection facilities breached any dants’ had responsibilities, they negligently whether breach, any, owed such if duty plaintiff, whether cause of the proximate plaintiff's injury. Jane,

In James Virginia at the Med- faculty University that full-time members as a defense to sovereign immunity ical could not plead action, administrators and medical malpractice although hospital to do so in Lawhorne. intern had been surgical permitted It marked demise fond that James my hope rationale, how case shows holding present Lawhorne but majority opinion, The ill-founded was that distressingly hope. James, and bar with bench which cannot be reconciled with leaves advocate ad- I again, no to follow. Once pattern consistent rule stands, and em- agents Crabbe that herence the rule for which anof immune ployees suit for employer subject are of their with performance duties. accord our decision in Short, I would reverse the trial court’s ruling sustained the pleas immunity interposed by the school officials and remand the case for a on the merits hearing as these employees. STEPHENSON, JJ.,

POFF and join in dissent.