The opinion
LEVENTHAL, Circuit Judge
(dissenting) :
In my opinion the ruling of the court reflects a narrow view of scope of liability of the District of Columbia in tort that is contrary to sound doctrine, and is an unwarranted shrinking from the liberating approach set forth in Elgin v. District of Columbia, 119 U.S.App.D.C. 116 , 337 F.2d 152 (1964).
The majority opinion, which assert-edly rests not on governmental immunity, but on the ground that there was no evidence of negligence, concludes that the problem is essentially that of “governmental operations involving the safety or well-being of numbers of people” and refers to a number of pre- Elgin rulings.
Plaintiff’s case, as I see it once the immunity question is ignored, may stand firmly on the point that if this were an action against a private school his evidence suffices to go to the jury. Taking it, as we must, most favorably to plaintiff, it showed that he was in a vocational instruction room where he was required to be, his teacher was not present at the start of the class, and he was struck by a piece of movable type thrown by another boy. The teacher and school were on notice that in their rough-housing the boys do throw type and had done so in the past. One student testified when Mr. Weir arrived after Ronald’s injury he tried to find out if anybody was throwing type. Indeed the principal’s own testimony reflected this notice, by reference to the regulation that instructed the boys not to throw type. It is a jury question whether this kind of formal instruction is enough to show due care and negative liability.
It seems to me the absence of teacher at the start of class, with a room involving this hazard, made a prima facie case, subject to explanation by the principal or other officer of the school that its agent was unavailable at that time due to overriding school needs.
The majority opinion says the teacher was absent because he had been assigned to hall duty or cafeteria duty. This was a permissible but not a necessary inference. The school did not meet the burden of showing where its agent was. The principal, on questioning by counsel for the District, was unable to say what duty he had assigned in the preceding period to the teacher.
One student testified the teacher had hall duty that day. On that premise *1154 there is evidence that would uphold a finding of negligence in the teacher’s failure to fulfill this duty on the day of the injury. The principal testified that the school wanted each teacher in close touch with his room, and hence he was required to be in his class, or if on hall duty, to be “by his class, or on duty outside of his class by the time the class arrived.”
Furthermore, even if the school had showed the teacher was on cafeteria duty, that factor, though certainly relevant as to liability, would not in my view suffice to take the case from the jury. For the question would remain why the teacher was not on time at the start of the class, following the lunch period. There was evidence that he arrived 10 minutes after Ronald was hit, and hence 12 minutes after the class began. If there was a good reason in school business, involving an exercise of discretion by policy officials, why the teacher was elsewhere, it was the school’s burden to show where its agent was and what he had been doing.
Finally, even if the teacher was assigned to a duty that would require him to be late for his shop class, I must say that I do not see why such a confession- and-avoidance would take away from the jury the possibility of finding negligence in the absence of an explanation why attractive printing type could not have been closed up in some way. This was not an ordinary classroom, but a shop of sorts with mobile paraphernalia and attractive and throwable material. Taking into account the notice that the obviously dangerous type throwing had occurred before, a juror, exercising his common sense experience with school situations and limitations, could find that a reasonably prudent teacher or administrator would lock up the type, the classroom, or a least provide substitute supervision such as an upperclass student, to lessen the degree of a known danger when the teacher was unable to be present.
Though the decision is cast in terms of insufficiency of evidence of negligence, I feel that it essentially reflects a special protection accorded the defendant because it is a government agency whose employees were on public business. I respectfully dissent from the opinion of the court.