# Sheley v. Board of Public Education

> Court of Appeals of Georgia · June 19, 1974 · 132 Ga. App. 314

URL: https://www.frixlaw.com/law-library/cases/9570805

## Case

- **Full name:** Sheley v. Board of Public Education for the City of Savannah and the County of Chatham
- **Court:** Court of Appeals of Georgia
- **Decided:** June 19, 1974
- **Citations:** 132 Ga. App. 314; 208 S.E.2d 126; 1974 Ga. App. LEXIS 1681
- **Precedential status:** Published
- **Opinion:** Dissent by Evans
- **Judges:** Bell, Clark, Deen, Eberhardt, Evans, Pannell, Quillian, Stolz, Webb
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Evans, Judge,
dissenting.
On March 7, 1973, John J. Sheley, III, aged eight years, was in attendance as a pupil at the Thunderbolt Elementary School in Chatham County, Georgia. There was a septic tank located on the grounds of said school, from which the cover had been removed, and had been allowed to remain off for an undisclosed period of time. A considerable quantity of water was inside the septic tank, and the situation thus created was alleged to be an attractive nuisance to children of tender years. On the above date, John J. Sheley, III, fell into the septic tank and was drowned. Mrs. Alice E. Sheley, mother of the minor child, brought the present action against the Board of Public Education for the City of Savannah and County of Chatham, as defendant, praying a recovery for the wrongful homicide of her child; and alleging that death was proximately caused by negligence of defendant in negligently maintaining an attractive nuisance on the school grounds. Her complaint further alleged that defendant, through its agents, servants and employees, knew of the aforementioned dangerous condition and their failure to take any corrective action amounts to wilful and wanton negligence.
Defendant filed a motion to dismiss the complaint because of its failure to state a claim upon which relief can be granted, and because "an action of this nature cannot be legally maintained against defendant, a political subdivision under the laws of Georgia.” The lower court sustained defendant’s motion to dismiss, and the plaintiff appeals. The majority affirms on the theory that it was not an attractive nuisance and school funds could not be paid out for damages. I dissent.
1. It has been held many times that a parent may recover damages for death inflicted upon a minor child as a result of negligence in leaving unguarded an attractive nuisance. See Ferguson v. Columbus & Rome R., 77 Ga. 102 ; Mills v. Central of Ga. R. Co., 140 Ga. 181 ( 78 SE 816 ); Wallace v. Matthewson, 143 Ga. 236 ( 84 SE 450 ); Atlantic C. L. R. Co. v. O’Neal, 180 Ga. 153 ( 178 *323 SE 451 ).
2. It has been held that a school board is such an entity that may sue and be sued. Roberts v. Baker, 57 Ga. App. 733 ( 196 SE 104 ).
3. That brings us face-to-face with the real issue here, which is as to whether a school board may be sued in tort because of the death of a child of tender years, occurring as a result of negligence in maintaining an "attractive nuisance.” In Hale v. Davies, 86 Ga. App. 126 ( 70 SE2d 923 ), a suit by a high school football player, because of injuries received while playing football, was brought to this court. This court held, among other things, that the young man assumed the risk of being injured by electing to engage in this sport; further that the physical education and training of school children is a governmental function and that "authorities in charge of public schools enjoy immunity from tort liability for personal injuries or death sustained by pupils or other persons in connection therewith, in the absence of a legislative enactment to the contrary, at least where only negligence was involved. ”(Emphasis supplied.) We pause here to point out that in the case now under consideration the complaint alleged wilful and wanton negligence, in that the servants and agents of defendant knew of the dangerous condition and failed to take corrective action. This allegation therefore differentiates the two cases considerably. And one final recital in the Hale case, supra, is most important, to wit: "It is conceded by the plaintiff that he could not have maintained an action against the school as such.” No such concession as that is made in the present case, and indeed, this allegation was enough to warrant dismissal of the Hale case, without regard to any other factor that may have militated against the plaintiff therein.
We recognize generally that in many states the doctrine of governmental immunity is undergoing a change, and that governments and governmental entities are not being allowed to plead governmental immunity and thereby escape liability for injury or death to members of the public as formerly.
For authorities from other jurisdictions holding school boards are not entitled to escape liability for torts *324 under governmental immunity theory, see 33 ALR3d 703; 57 AmJur2d 51, Municipal, School and State Tort Liability § 38 et seq.; 47 AmJur. 334 et seq., Schools, §§ 56-59.; Arizona—Morris v. Ortiz, 103 Ariz. 119 ( 437 P2d 652 ) (1968); Vreeland v. State Board of Regents, 9 Ariz. 61 ( 449 P2d 78 ) (1969); Illinois—Molitor v. Kaneland Community Unit Dist., 18Ill2d 11 ( 163 NE2d 89 , 86 ALR2d 469), cert. den. 362 U. S. 968 (80 SC 955, 4 LE2d 900) (1959); Bergman v. Board of Education, 30 Ill. App. 2d 65 ( 173 NE2d 565 ) (1961); Ludwig v. Board of Education, 35 Ill. App. 2d 401 ( 183 NE2d 32 ) (1962); Minnesota—Spanel v. Mounds View School Dist., 264 Minn. 279 ( 118 NW2d 795 ) (1962); Nebraska—Johnson v. Municipal University of Omaha, 184 Neb. 512 ( 169 NW2d 286 ); Nevada—Walsh v. Clark County School Dist., 82 Nev. 414 ( 419 P2d 774 ) (1966); New Jersey—Jackson v. Hankinson, 51 N. J. 230 ( 238 A2d 685 ) (1968).
But of greater concern to us, of course, is the situation as it obtains in Georgia. In 1968 the case of Phillips v. Town of Fort Oglethorpe, 118 Ga. App. 62 ( 162 SE2d 771 ), came to this court for decision. Plaintiff had sued the owner and driver of an automobile, and the Town of Fort Oglethorpe, as joint defendants, because of personal injuries received in an automobile collision at an intersection, it being alleged that a traffic light was showing green in all four directions at the same time, as a result of a malfunction, and had caused six collisions on the same day. The trial court sustained the general demurrer filed by the municipality and dismissed the suit. This court reversed, in a five to four decision, holding that the Town of Fort Oglethorpe was under a duty, imposed by Code § 69-303, to keep the streets in a reasonably safe condition; that such was a ministerial or corporate function and a violation of which, resulting in injury to plaintiff, was actionable. Certiorari was granted and the case was decided by the Supreme Court of Georgia, Town of Fort Oglethorpe v. Phillips, 224 Ga. 834 ( 165 SE2d 141 ). In a full-bench decision, the Court of Appeals was affirmed, but upon a different theory than was given by our court. Instead of placing its decision upon the failure to properly keep its streets in safe condition, as required by Code § 69-303, the Supreme *325 Court, in a very comprehensive decision, held first that the Town of Fort Oglethorpe was engaged in a governmental function in operation and maintenance of the traffic light and was not liable for negligent performance thereof, and same is not such a case as is contemplated by Code § 69-303. But then the Supreme Court went on to hold that plaintiffs alleged facts were sufficient to state a cause of action based on nuisance against the municipality’s general demurrer; and that a municipality, like any other individual or private corporation, may be liable for damages caused to a third party from operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or ministerial function; and that a municipality cannot, under the guise of performing a governmental function, create a nuisance dangerous to life or health. The decision ends with this pertinent language: "Accordingly, the particular allegations of the instant petition set forth a cause of action for the operation and maintenance of a nuisance.”
If a municipality cannot plead governmental immunity against the maintenance of a nuisance, neither can a school board. We are bound by the decisions of the Supreme Court of Georgia. See: Cargile v. State, 194 Ga. 20 (1) ( 20 SE2d 416 ). To say that the school board cannot be sued simply because the tax money provided for its maintenance can be used only for schools and for no other purpose than for schools is simply another way of hiding behind governmental immunity which is no longer controlling in nuisance cases as so stated by the Supreme Court.
I am authorized to state that Judges Deen and Quillian concur in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9570805. Public record. Not legal advice.