Montana Attorney General Opinion 16-370

Opinion No. 370. Schools-School Districts, Liability in Tort-Trustees, Individual Liability in Tort. HELD: 1. A school district, or its directing board, as such, is not liable to persons injured by its nonfeasance, nor is it liable for injuries or loss re- sulting from its negligence, as for a failure properly to construct a school building or to keep it in repair, or to maintain the school premises or equipment in a proper and safe condi- tion, except where liability is im- posed by statute. 2. Members of the board of trus- tees of a school district are not per- sonally liable for the negligence of the board as such, but they are per- sonally liable for their own negli- gence or tort in the performance of duties to be performed by themselves, or for that of an agent or employee of the district when acting directly under their supervision or by their direction. November 19, 1936. Mr. Chris W. Demel County Attorney Billings, Montana You have requested my opmlOn on the following questions which are sub- mitted to you by the clerk of a school district: "Are the trustees of a school dis- trict liable individually for damages sustained by either students of any of the schools in attendance at such OPINIONS OF THE ATTORNEY GENERAL 363 schools, or by others not in attend- ance, such as adults? Is the school district, itself, liable?" Your questions are general and hy- pothetical. Our answers must neces- sarily be general. Attorney General Rankin, in 1923, held that the trustees of a school dis- trict are not individually liable for in- juries to pupils enroute to school in a school bus, unless the board, while convened as such, had notice of a de- fect in the mode of conveyance, which should have been remedied in the ex- ercise of reasonable care and dili- gence (10 Opinions of Attorney Gen- eral, 83). Attorney General Foot, in 1928, held that school districts are not liable for injuries resulting to school children while being trans- ported in school busses (12 Opinions of Attorney General, 236). In 1929, Attorney General Foot affirmed both opinions without expressly referring to or citing them (13 Opinions of At- torney General, 168). A school district, or its directing board, as such, is not liable to per- sons injured by its nonfeasance, nor is it liable for injuries or loss result- ing from its negligence as for failure properly to construct a school build- ing or to keep it in repair, or to maintain the school premises or equipment in a proper and safe condi- tion, except where liability is im- posed by statute. (56 C. J. 528; 24 R. C. L. 604; Perkins v. Trask et aI, 95 Mont. 1, 23 Pac. (2d) 982.) There is no such statutory liability in Mon- tana. Section 1022, R. C. M. 1935, which provides that a school district may sue and be sued, does not have the effect of imposing liability in tort. (Perkins v. Trask et aI., supra; 56 C. J. 530.) Members of the board of trustees of a school district are not personally liable for the negligence of the board as such (56 C. J. 348; 24 R. C. L. 606; Perkins v. Trask et aI., supra), but they are personally liable for their own negligence or tort in the performance of duties to be per- formed by themselves, or for that of an agent or employee of the district, when acting directly urider their su- pervision or by their direction. (56 C. J. 348; 24 R. C. L. 606.) Some doubt, apparently, is cast upon the rules stated above by the case of Johnson v. City of Billings, et al. (101 Mont. 462, 54 Pac. (2d) 579.) That case, however, is readily distinguished from the authorities above cited. Suit was brought by the plaintiff for damages occasioned by a collision with a gravel truck on the highway. The highway was be- ing repaired as part of a drainage ditch project being carried on by the county and city jointly. Negligence was not disputed. The court held the city and county liable with the truck driver over the objection that cities and counties are not liable in tort. The court expressly held (and it went no further) that the repair of the highway was a part of the construc- tion and completion of the drain ditch and that the city and county were acting in their private, proprie- tary capacity as distinguished from public or governmental capacity (p. 479,480). A school district is merely a politi- cal subdivision of the state, created for the convenient dispatch of public business (State ex reI. Redman v. Meyers, 65 Mont. 124, at 127). The education of the children of a state is a function of the state and a school ?istrict has ~s its purpose the aiding in the exerClse of that function' all its functions are of a public nature. (56 C. J. 177, 169, 193; Perkins v. Trask et aI., 95 Mont. 1; Section 1 Article XI, Montana Constitution.) , It is assumed that the questions propounded by you relate to activities of the board of trustees as such, and to the use of the school properties for legitimate school purposes. That be- ing true, it is clear that any liability on the part of the district or on the part of the trustees individually must be bas.ed upon nonfeasance or negli- gence in the performan~e of public or governmental functions. The decision in the Johnson case, relating as it does to liability based upon proprie- tary functions, has no persuasive weight here. Mr. Just.ice Matthews, speaking for the court in the Johnson case, vigor- ously criticized the rule that counties are not liable in tort when acting in their governmental capacity, but re- served the question since it was not before the court (p. 472). Since the 364 OPINIONS OF THE ATTORNEY GENERAL court expressly reserved the question as it relates to counties, and since the court did not consider, and did not have under consideration, the rule an- nounced in the case of Perkins v. Trask, supra, we are bound by the decision in Perkins v. Trask, and must apply the rules stated above. Those rules were approved by former at- torneys general in the opinions cited, and are the rules in the overwhelm- ing majority of jurisdictions. It cannot, however, be too force- fully impressed upon school trustees that they owe a great moral and pub- lic duty to use every effort to remove or improve any existing conditions which might cause damage or injury to pupils and teachers and to other persons legitimately using school properties. They owe this duty to the state, which is vitally concerned witli the education and welfare of its youth; they owe it to the teachers and pupils who must use the school prop- erties, they owe it to the parents of the pupils, and, for a more seTfish reason, they owe it to themselves be- cause, as was pointed out above, they are not exempt from individual, per- sonalliability where they are charged with a duty, either personally or through an agent or employee re- sponsible to them. The existence of the latter liability can be determined only under the facts of each particu- lar case.