Mаrtha Gail COPLEY, an Infant suing by her next friend, Christine Copley, etc. et al., Appellants, v. BOARD OF EDUCATION OF HOPKINS COUNTY et al., Appellees.
Court of Appeals of Kentucky.
May 7, 1971.
466 S.W.2d 952
The judgment is affirmed.
All concur.
John B. Breckinridge, Atty. Gen., Mary Jo Arterberry, Dept. of Public Safety, Frankfort, for appellant.
Richard P. Moloney, Lexington, for appellee.
CLAY, Commissioner.
This is a tempest in a teapot. The Department of Public Safety sought to suspend appellee‘s Kentucky operаtor‘s license on the ground that he had made a false statement in his application for renewal of such license. The allegedly false statement was that his driving privileges had not been suspended. In fact, the Department had theretofore attempted to suspend his license on the ground he had failed to show financial responsibility after an accidеnt in 1968. However, plaintiff had never received notice of this purported suspension.
This suit was brought by appellee to еnjoin the Department from suspending his license, and that relief was granted. From an examination of the record and the findings оf fact by the Chancellor, it appears that the original suspension of appellee‘s driving privileges was unauthorized; appellee had no notice thereof; and the answer in his application was not false inso
Damon A. Vaughn, Madisonville, for appellants.
Thomas B. Spain, Mills, Spain & Mitchell, Madisonville, for appellees.
DAVIS, Commissioner.
Martha Gail Cоpley, suing by her next friend, sought damages for personal injuries allegedly suffered when she was struck by a playground swing on the ground of thе public school in Hopkins County which she attended. Her mother sued for recovery of damages allegedly caused to her by reason of her daughter‘s injury. The named defendants, appellees here, were the Board of Education of Hopkins County, the county school superintendent, the members of the Board of Education, and the school principal. A summаry judgment was entered dismissing the complaint as to all of the defendants. The plaintiffs, now appellants, seek reversal urging that (1) the doctrine of sovereign immunity of boards of education should be abrogated, and (2) summary judgment was inappropriate as to the individual defendants.
The appellants urge the court to renounce the doctrine of sovereign immunity as to sсhool boards, citing the decisions of several other jurisdictions which have done so. Appellants concede that the decision in Cullinan v. Jefferson County, Ky., 418 S.W.2d 407, required the trial court‘s decision as related to the Board of Education of Hopkins County, but entreat thе court to overrule that case and abandon the doctrine of sovereign immunity as to school boards. A majority of the court, as presently constituted, is not persuaded that the rule announced in Cullinan should be abrogated. The trial court cоrrectly dismissed the complaint to the extent that recovery was sought against the Board of Education of Hopkins County.
Thе trial court erred in granting summary judgment in favor of the individual members of the Board of Education and the superintendent and principal. In Carr v. Wright, Ky., 423 S.W.2d 521, the court pointed out that a public officer is subject to liability for his actions within the scope of his public emрloyment if such actions produced damage by reason of the officer‘s personal fault, such as negligence or deliberate wrongdoing.
The complaint charged that each of the individual defendants, acting in his respective official capacity, was guilty of gross negligence and carelessness in operating, maintaining, and supervising the playground аnd recreational facilities at the public school. The complaint charged that the superintendent and the individual board members failed to exercise ordinary care in selecting and employing personnel to properly maintain, operate, and supervise the recreational facilities at the school. It was charged that the injuries and damages were proximately caused by the alleged negligence of the individual defendants. These allegations were sufficient to state a claim within the rationale of Moores v. Fayette County, Ky., 418 S.W.2d 412; Shearer v. Hall, Ky., 399 S.W.2d 701; Spillman v. Beauchamp, Ky., 362 S.W.2d 33, 2 A.L.R.3d 814; and Whitt v. Reed, Ky., 239 S.W.2d 489, 32 A.L.R.2d 1160.
Viewed in light of the decisions cited, the appellees did not present evidentiary material which required the appellants to “show their hand,” as was true in Neal v. Welker, Ky., 426 S.W.2d 476, and as discussed in Robert Simmons Construction Company v. Pоwers Regulator Company, Ky., 390 S.W.2d 901, 905. It is only when the moving party has first established the apparent nonexistence of a genuine issue of material fact that the opposing party must adduce countervailing evidentiary material. Here the individual appellees did not establish the apparent nonexistence of a genuine issue of material fact, so the aрpellants had no obligation to present any evidentiary material.
The judgment is affirmed to the extent that it absolves the Bоard of Education of Hopkins County, and it is reversed in all other respects.
MILLIKEN, C. J., and EDWARD P. HILL, JR., PALMORE, REED and STEINFELD, JJ., concur.
NEIKIRK, J., dissents, stating that he would affirm the judgment granting summary judgment as to all defendants. It is his opinion that the pleadings and evidence are sufficient to support the actions of the trial court.