# Govel v. Board of Education of City of Albany

> Appellate Division of the Supreme Court of the State of New York · May 3, 1944 · 267 A.D. 621

URL: https://www.frixlaw.com/law-library/cases/5377108

## Case

- **Full name:** Frank Govel, an Infant, by Nellie Govel, His Guardian ad Litem, Appellant-Respondent v. Board of Education of the City of Albany, J. Emmett Dowling, , Defendants Joseph Govel, Appellant-Respondent v. Board of Education of the City of Albany, J. Emmett Dowling
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** May 3, 1944
- **Citations:** 267 A.D. 621; 48 N.Y.S.2d 299; 1944 N.Y. App. Div. LEXIS 4789
- **Precedential status:** Published
- **Opinion:** Dissent by Scheyck
- **Judges:** Hill, Scheyck
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5377108

## Opinion text

Scheyck, J.
(dissenting in part). The infant plaintiff, Frank Govel, a young man eighteen years of .age, was involved *626 in two separate and distinct accidents, in each of which he sustained injuries. The first accident occurred March 5, 1942, in the gymnasium of the Albany High School and which has been referred to on this appeal as the gymnasium accident case; the second occurred on April 3, 1942, in the machine shop at the Philip Schuyler High School, referred to as the gun accident case.
The gymnasium accident occurred while plaintiff was a student in the senior class of the High School and a member of a class in physical instruction conducted in the gymnasium by the defendant J. Emmett Dowling, instructor in physical education.
The jury brought in verdicts in favor of the infant plaintiff and in favor of Joseph Grovel, his father, in each cause of action. In the gymnasium case the Trial Justice set aside the verdict as to the Board of Education on the ground that there was no proof that the defendant Board failed to provide competent teachers to supervise the gymnasium work, that no defect of structure or equipment was claimed and that the occurrence of the accident could not be attributed to the failure of the Board to adopt rules in respect of maintenance and operation of the gymnasium. However, he denied the motion of the individual defendant Dowling for a dismissal of the complaint. Defendant Dowling has been instructor of physical education at the Albany High School for twelve years and the record indicates that he has had over twenty years’ experience and possessed excellent qualifications. He was present in the gymnasium at the time the infant plaintiff was injured while performing'exercises from a spring board and over parallel bars. A factual case was presented as to • the liability of defendant Dowling, which presented a question for the jury, and the verdict not being against the weight of credible evidence, the motion of Dowling to dismiss the complaint as to him was properly denied. The negligence of a teacher, if any, may not be attributed to the Board of Education. The Board had chosen a competent physical instructor of long experience. Unless it may be found from the evidence that the Board failed to perform a statutory duty, a verdict against it may not be sustained under the doctrine of respondeat superior. I find nothing in the record that would- warrant a finding that the Board failed in its duty to establish rules and regulations necessary “ for the general management, operation, control, maintenance and discipline of the schools, and of all other educational, social or recreational activities and other interests *627 under its charge or direction ”, as required by the Education Law (§ 868, subd. 9) and the motion to dismiss as against the ' Board was properly granted.
In the gun accident case the evidence shows that the infant plaintiff had made written application for the Defense Training Program conducted in the workshop of the Philip Schuyler High School. He was not a pupil of that school, but was apparently desirous of learning general machine-shop work and joined the class which was conducted by the instructor, defendant Duffy. While working on a lathe machine in the south end of the shop he was injured by a .22 caliber bullet which had been discharged from a rifle which one Robert Taylor, another student, had brought to the workshop for repairs three or four days before the accident. It consisted only of the barrel and breech mechanism. He had completed the repair work and exhibited the finished job to the instructor, defendant Duffy, who examined it and found that the mechanism worked satisfactorily. There was no cartridge in the gun at that time and so far as defendant Duffy knew, there was no ammunition of any sort anywhere on the premises.
I find nothing in the record to impute negligence to the instructor, defendant Duffy, or any evidence which would warrant a finding of liability on the part of the Board of Education. These students, including the infant plaintiff, voluntarily joined this mechanical training class to fit themselves for work in war-plant industry. They were not immature children requiring playground supervision, but high school seniors, most of them of an age which made them liable to induction into military service. They sought an education in practical mechanics in a shop where, under the guidance of competent instructors, machines of various types were made available to them. All sorts of metal objects were repaired at this shop and it does not seem to me that negligence may be predicated on the granting of permission to repair this rifle. Certainly, the granting of such permission alone was not negligent, nor could the instructor be charged with the duty of inspecting every minute item of work that came into the shop. The instructor, defendant Duffy, had inspected the repairs of the mechanism of this rifle and found that the job had been satisfactorily completed. He could not anticipate that it would thereafter be loaded and discharged in the workshop. There is testimony that another student, a friend of the infant plaintiff, saw a bullet in the gun shortly before the shot was fired. The instructor, however, could not be called upon to keep *628 constant watch over this particular piece of mechanism at all times. Obviously, had this been a chemistry class, the instructor could not be charged with keeping an unremitting watch over the various acids and dangerous chemicals ordinarily found in a laboratory. This rifle in itself was not a dangerous instrument unless loaded. When this loading operation occurred does not appear but surely the instructor, defendant Duffy, could not anticipate that it would be loaded and fired in the workroom.
The orders and judgments dismissing the amended complaints as against the defendant Board of Education and the •defendant Duffy, and the order denying the motion of the defendant Dowling for dismissal of the complaints as to him should be affirmed.
Judgments and orders against defendant Dowling affirmed, with costs.
All concur.
Judgments and orders dismissing complaints as to the Board of Education in the Dowling cases affirmed, without costs.
All concur, except Hill, P. J.
Judgments and orders dismissing complaints against defendant Duffy reversed on the law and facts and verdicts reinstated, with costs.
Judgments and orders dismissing complaints as to the Board of Education with respect to the causes of action where Duffy is a defendant reversed on the law and facts and verdicts reinstated;
All concur, except Heffebnaw and Scheftck, JJ.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5377108. Public record. Not legal advice.