Spearman Ex Rel. Spearman v. University City Public School District
617 S.W.2d 68
Mo.
1981
Check Treatment

*1 píete confidence that this Court will do all power

within its protect rights

indigent accused and implement pub- policy

lic set Chapter forth in RSMo

1978 Cum.Supp.1980, & that those ordered

to defend the indigent accused shall be fair-

ly compensated for expenses and serv-

ices.

For the present, preliminary rule in

prohibition is quashed, ordered

prejudice reapply extraordinary relief may appear

at time that it that the

indigent accused being denied a reasona-

ble defense and a fair trial.

All concur. SPEARMAN, Jr., minor, by

James his friend, Evelyn Spear

mother and next

man, Plaintiffs-Appellants,

UNIVERSITY CITY PUBLIC SCHOOL

DISTRICT, etc.,

Defendant-Respondent. SPEARMAN, Jr., minor, by

James friend, Evelyn Spear

mother and next

man, Plaintiffs-Appellants, HOSKINS, al.,

Adolph et

Defendants-Respondents. No. 62183. Bronson, Bronson, & St. Mark I. Newman Missouri, Supreme Court of Louis, plaintiffs-appellants. En Banc. Louis, James, for Universi- Donald L. St. June 1981. Dist. ty City Public School Louis, Plunkert, for Hos-

Thomas J. St. kins, et al.

DONNELLY, Judge. James August On minor, personal injury filed a Spearman, a Pub- University City suit

69 6, (hereinafter alleged injury January lie “school dis- tiff’s occurred School District 6, holding Strong v. the trict”). alleged January approve Plaintiff that on 1977. Missouri, of University 575 1977, Curators of the gym while in a class and participating wherein it is 812, (Mo.App.1978), S.W.2d 813 by owned the performing trampoline on stated: landed on the he fell and to make trampoline’s “Jones so conditioned as exposed springs. is not inapplicable to application prospective its to file an granted Plaintiff was leave doctrine who inci- by those blanketed the adding, party amended as defend- petition No distinction dentally carry insurance. Adolph ants education instructors physical agencies with is made in Jones as to those The and Edward Koschner. language The or without insurance. petition against amended the instructors sov- that the doctrine of explicit Jones is basically allegations consisted of the same to Au- ereign immunity is to effective as in the school original petition against the 1978, 15, provision is no gust and there district. be- protective simply its veil lifting 21,1977, On November the school district has insurance.” agency cause the filed a motion to dismiss on the that con agree plaintiff’s we with Nor do against by the action it was barred application prospective tention that Jones’ sovereign immunity. doctrine of This mo- guarantee equal protection violates the May tion was sustained trial court on by the Amendment to the United the Fourteenth 26, 1978. with the agree States Constitution. 18,1978, 23,1978, August On August Supreme Court expressed by view Hos- respectively, defendants Koschner and Community in Molitor v. Kaneland Illinois dismiss, (1) contending kins filed motions to 302, 11, Ill.2d District No. 18 Unit School plaintiff’s failed to state a petition denied, 362 (1959), 163 N.E.2d 89 cert. U.S. (2) against cause of action and the action (1960), 968, 955, 900 80 4 L.Ed.2d S.Ct. instructors was barred the doctrine to-wit: sovereign These motions immunity. power inherent as “It is within our sustained, were indication as to give a deci- of this State highest court ground, by which the trial court on Febru- applica- retrospective or prospective sion ary 1979. constitutional offending tion without appealed rulings Plaintiff the trial court’s Railway Co. principles. Great Northern to the Appeals, Co., Court Eastern Refining 287 U.S. v. Oil & Sunburst Upon plaintiff’s application following 360.” 53 77 L.Ed. S.Ct. opinion by an the Eastern District affirm- Abernathy 97. also 163 N.E.2d at actions, ing granted the trial court’s we 599, 606 446 S.W.2d Mary’s, Sisters of St. pursuant transfer of the case to this Court Parkway (Mo.banc 1969); Christophel to Rule 83.03 and it as if it were now decide (Mo.App. V, an 10. original appeal. Mo.Const. art. § 1980). respect ruling The trial court’s the trial court argues Plaintiff dismiss is motion to the school district’s district’s mo sustaining erred the school affirmed. dismiss, the sover contending tion to not bar his eign immunity doctrine should trial court argues that the Plaintiff next had liabili against action because the school district in- dismissing petition erred in Court, insurance. This in Jones v. State As stated structors Hoskins (Mo. Commission, Highway earlier, in these grounds asserted (1) 1977), abrogated banc of sover were that the doctrine motion to dismiss fendants’ to claims a cause eign immunity prospectively as did not state plaintiff’s petition defendants; (2) arising (except on after August against or action in- for Jones and those certain cases decided of action cause of sover- the doctrine Jones). plain- the same date as In this structors is barred eign immunity. The court trial merely sus- performing a governmental function, tained the motions to dismiss without com- but because we do not know what ment as to the ground ruling specific duties and responsibilities was based. were, individual defendants we cannot satisfactorily resolve question of their question whether the doctrine of sov- *3 possible immunity from the face of ereign the immunity afforded school districts * * * petition. also extends to can say with reasona teachers has been addressed ble in confidence that infrequently gener we know of no Missouri. issues were not reached the instructor for the reason that the aver- ments Court gal conclusions. affirmed the dismissal of the wrestling class. tor 2, 408 an action “(1) that officer clothed with discretionary powers Smith v. Consolidated School District No. for specifically personal by superintendent, [the instructor] the instructor were mere le- 50 a student Id. at 56. (Mo. In that noted that injuries sustained in a banc against by and an instruc- 1966), was action However, the this Court following a decision: a school involved against ‘public the A.L.R.2d Tort Liability of Rev. S.E.2d Northumberland (1965); 552 348-349 124 Vt. Koustenis, liability for their negligent acts. Downs mar school teachers al principle of law v. Conway [1] [2] 723, 639, 445, Crabbe v. [5] [6] 1163, 739-742 260 Md. (1970); School 641 207 A.2d (E.D.Ark.1971); 1186-1189 [3] Co., Dist., Teachers, County 98, (1959) Eastman v. which clothes (1968); 271 A.2d 146, 209 Va. 328 immunity (1953); Proehl, * * * * School 148-149 [4-7] F.Supp. 338, 12 Vand.L. Annot., Duncan v. 547, Williams, 356, Bd. of gram It from 550- 164 32 is nevertheless our opinion tentative that and at all engaged times wholly per- in the scope of an individual instructor’s forming governmental function and injury duty particular to avoid any to thus not negligence’; (2) liable for acts of controlling student the conduct of the that is plain- not liable to [the instructor] narrow, very others is particularly tiff for in alleged negligent acts of omission nonfeasance; view of constituting constitutional restrictions (3) and now upon laid in relationship disciplining of loco teachers parentis existed Owen, between plaintiff their students. Baker v. 395 [the instructor] he 294, was accordingly (M.D.N.C. not liable to 302-303 F.Supp. [8-10] for an aff’d, unintentional 1975), 907, 210, tort.” 423 U.S. 96 S.Ct. 46 (1975). L.Ed.2d 137 the defend However Id. at 55. issues Because these were not ants’ first two special collective defenses addressed, help Smith is of no in resolving might characterized, properly be whether the similar issues involved in this case. as ‘affirmative’ special defenses or trav The next case which addressed the issue erses, we believe the merits of those de of schoolteacher immunity is Kersey v. Har- only upon fenses can resolved properly bin, where, 531 (Mo.App.1975), S.W.2d 76 as * * * reception species proof. of some Smith, physical in education instructors they were sued for “Defendants’ assertion that negligence in stood super- vision of a to wrestling parentis class. The loco the decedent and are defendant instructors in Kersey proffered therefore immune only the same from suit has su- “defenses”, three quoted supra, perficial as were to it. ingenuity commend submitted by the defendant instructor place notion that a teacher stands defenses, Smith. With respect to these parent to legal is a fiction intended Southern District of the Court of Appeals privilege scribe and limit the teacher’s stated: discipline parentis the child. If the loco special defenses are still very ab- doctrine stands the wake Baker

“[T]hese stractly Owen, thought v. supra, stated. The first two are essen- it has never been tially claims of immunity negligence. based on the the teacher his excuse assertion particular v. Dist. County Chilton Cook

71 459, 207, dispelled, degree, by majority No. 26 325 to some Tp., Ill.App.3d Maine 666, (1975); Ingraham Wright, N.E.2d 669-671 Gaincott 430 U.S. holding in 229, Davis, 281 Mich. N.W.2d L.Ed.2d 97 S.Ct. Proehl, (1937); op.cit. at 726-729.

[4, no have found we will reiterate that 5] fully accomplished law, we authority, “We realize have rule no line of dispose little this other than to opinion with immu- of the clothes defendants reiterate, appeal, parties of the but to acts. negligent nity from abstractions, rather have tendered us Dist. v. Consolidated School What Smith propositions than concrete to be decided 1966), (Mo. banc No. * * * * specific Consequently, facts held, convinced, we is actually are now only we have stated tentative conclusions scope supervisory applicable as to the law. We believe the obligation very narrow. Defendants' sustained, properly motion to dismiss was supervise ordinary to exercise care *4 * * * * may because plaintiffs but we believe were insurers They not children petition per- able to amend their within safety.” of students’ claim, missible limits to state a we think added). (emphasis at 748-49 so, they permitted should be do if they to cite Hoskins and Koschner Defendants so are advised.” (Mo. McNary, Coleman v. 549 S.W.2d added). Id. at 81-82 (emphasis sovereign “that App.1977), which held remand, Kersey again After once case (St. subdivision political of a immunity reached the Kersey Southern District. agents when Louis to County) extended Harbin, (Mo.App.1979). 591 S.W.2d 745 Al- capaci they representative in their are sued though from backing holding off its initial point. is not in ties.” The case Coleman that an action a a teacher was Hoskins alleges that pleading Plaintiff’s action, Appeals “disfavored” the Court them, were act and “and each Koschner fast to immunity held its view that no * * *." ing individually extended to teachers: expressed view agree with the “In to arguing that their motions dis- supra, Kersey, in by the Southern granted, miss should have been clothes school authority line of no fendants contend that as officers of the for liability from immunity with teachers they are with a clothed Inju acts. 3B Personal negligent their species of cannot be immunity and held (1980): 1.01 except ry § liable of an Educational Institutions commission inten- Amendment explanation it was based ‘disfavored causes’ was [9,10] (M.D.N.C.1975), school student’s interest in strongly suggested that an instructor could admonish could ing, regardless tional in view of our er dealt Baker v. of a S.Ct. subject do tort. statute, directly little Owen, is called for. 46 L.Ed.2d 137 protection. else how counsel for upon but prior 395 F.Supp. reject Eighth unruly implied opinion, this aff’d 423 U.S. unfortunate, and Fourteenth implications of Our constitutionali- bodily security students, argument, The decision prior analogy a word of 302-303 appel- public hear- Bak- but but but to tion is immune from trine of from ply employees, on the when mental function. state, district corporation and “1.01(l)(a) “(g) Generally, “(h) [******] to an torts consequences — —Teachers acting county, is considered respondeat of its —As a agency in its in or town or agents, tort. * are is, of their official general discharging a the Board of ground that * * superior does generally liable therefore, * * * an liability for servants, and/or quasi-municipal capacity, agency rule a school wrongful the doc- immune govern- not Educa- of the or for torts and ap- acts, injuring e. a student g., may lants have read decision. The tortious uncertainty corporal punishment, has administering created Baker been when judgment have statutes jurisdictions

but some au- is reversed and remanded thorizing indemnify the school to teachers as to defendants from when liability for civil misconduct

said misconduct is connected with SEILER, RENDLEN, WELLIVER, places damages work. This the cost and HIGGINS, JJ., concur. MORGAN and taxpayers. of such lawsuits on the Some impose upon duty courts teachers the BARDGETT, J., part concurs in C. and use persons ordinary the same care as separate opinion filed. part dissents prudence. charged are with the They Justice, BARDGETT, concurring in Chief same as a caring for students part dissenting part. person ordinary prudence would use under the same circumstances. Other opinion part I concur in that of the jurisdictions require teachers exercise judgment of dis- reverses ánd remands a standard of care with their students as Hoskins and Kos- missal as to Defendants parent ordinary prudence would a portion of the chner and dissent as to comparable (Emphasis circumstances.” as to the opinion that affirms the dismissal added). University Public City Therefore, if the trial court sustained the Highway I agree that Jones State solely defendants’ to dismiss motions the Commission, (Mo.banc 1977), were that defendant instructors application does not have retroactive *5 sovereign immunity, clothed with the trial ques- same. The should not be accorded the court erred. liability purchase tion whether However, sus where a trial court ought to be districts insurance generally tains a motion to dismiss and to sue permission construed as a waiver or ground alleged there is meritorious constitute allegedly for those matters that sustention, the motion justify resulting injury to a negligent conduct ruling must be affirmed. Anderson v. Bis before. How- has been considered student coe, (Mo.App.1947). ever, in this appears because the issue reason, For this we must determine wheth me to I it inappropriate feel not er the trial dismissal of the action court’s as stated in the simply my position reiterate Hoskins and Koschner against defendants dissent in Kuhn v. Ladue School should have been on the basis of sustained 1979). I (Mo.banc believe 589 S.W.2d 281 plaintiff’s the other asserted —that public funds for expenditure prior petition failed to state a cause of action. insurance tort purchase that, recognize teacher-pupil public given in the recognized and the should degree some relationship, to exercise allow- expenditure the full benefit of the complexities care exists but that not This would ing proceed. the action to imperative it relationship make in excess of judgment a verdict or permit permitted standards be to evolve as differ- but would policy, limits stated in the ent Drowatzky, fact situations arise. See insured, the students and permit Firing Negligence Physical On the Line: policy full benefit of the public to have the Education, (1977); 6 J. of Law & Educ. public funds. purchased which was Annot., Liability Personal of Public School Therefore, dissent in part I concur Officers, or Employees Teachers or Other in this case. principal opinion in the part Negligence, 32 A.L.R.2d 1163 situation, unique In this rather we believe given opportuni- should be another

ty to state a of action cause Universi- judgment is affirmed as to Public City