John Tardiff has appealed from a summary judgment dismissing his action (by guardian ad litem) against the school district for injuries sustained in falling from a cargo net.
On May 27, 1963, the 7-year-old appellant was injured when he fell from a rope cargo net hung in the gymnasium of the respondent school district. The cargo net has been used in the school since 1961 as part of the physical education training program, in the same manner as a climbing rope, climbing ladder, climbing pole, horizontal ladder and climbing tree.
The complaint alleged negligence (a) in failing to provide reasonable protection over appellant's person, (b) in failing to properly supervise the activities conducted by the school, and (c) in advancing and putting into effect a plan, the reasonable and foreseeable consequence of which was to cause injury to the minor appellant.
The trial court granted the school district's motion for summary judgment on the ground that it was immune, the cargo net being an athletic apparatus within RCW 28.58.030.
1. Does RCW 4.92.090 repeal by implication the school immunity provided in RCW 28.58.030?
2. Is complete within itself;
The 1963 Act, amending the 1961 Act, eliminated the proviso entirely. In addition, the 1963 Act is an entirely new and comprehensive act. It consists of 12 sections concerning actions against the state, including presentation, filing, settlement, and payment of claims and judgments against the state and its agencies and departments of state government whose operations and activities give rise to liability and a lawful charge against moneys appropriated or available to such agencies and departments. RCW 4.92.010 et seq. Nowhere does there appear any intent to make this comprehensive act applicable to school districts. There is no provision therein whereby RCW 28.58.030 might be repealed, by an express statement or by necessary implication.
In further support of his contention, appellant cited Swanson v. School Dist. No. 15, 109 Wn. 652, 187 Pac. 386 (1920), where RCW 28.58.030 was held impliedly to repeal another statute allowing suit against the school district. The Swanson decision, at 658, concluded, "Here the act, in effect, takes from the operation of the prior law the liability of school districts in certain particulars." Consequently, the Swanson case is not apposite here.
The appellant also cited Kelso v. Tacoma, 63 Wn.2d 913, 390 P.2d 2 (1964). His argument was that this case applied
Further, the 1963 Act is a comprehensive one of 12 sections pertaining primarily to claims and action against the state itself, and its agencies and departments. Nothing is stated therein which might have any bearing upon the statute establishing immunity of school districts. It is significant to observe that the 1963 legislature also enacted chapter 67 amending RCW 28.58.045; chapter 41, amending RCW 28.58.070; and chapter 104, amending RCW 28.58.100. All relate to school districts. Yet, nothing is stated in any of them affecting RCW 28.58.030 in any manner. If the legislature had intended to repeal RCW 28.58.030 by enacting RCW 4.92.090, a more effective method would have been by an express provision so to do in any of the above sections affecting school districts. This was not done.
The rationale and reasonable conclusion, accordingly, is that the legislature did not intend to repeal RCW 28.58.030 by implication.
Appellant also argued that, in order for the net to be an athletic apparatus within the purview of the statute, it must have been manufactured for the purpose for which it was being used. For this proposition, he cited the cases of Stovall v. Toppenish School Dist. No. 49, 110 Wn. 97, 188
3. Appellant's last contention was whether RCW 28.58.030 was applicable to the alleged negligence.
In order for RCW 28.58.030 to be applicable, the negligence of respondent must be in relation to the cargo net or athletic apparatus. But where "the alleged acts of negligence
In Rodriguez, while performing tumbling exercises upon a tumbling mat under the direction of a teacher, the claimant child was injured. The child alleged negligence "in directing her to do the exercises when they knew that she could not perform them, in failing to exercise proper supervision, in refusing to heed her protestations, and in failing to properly instruct her in the exercises." The court assumed that the tumbling mat was an athletic apparatus and said, at 48, "the minor plaintiff does not rest her claim for relief on alleged negligence in relation to a tumbling mat, but on negligent supervision of exercises which she was required to perform."
In the case at bar, the complaint alleged negligence (a) in failing to provide reasonable protection over appellant's person, (b) in failing to properly supervise the activities conducted by the school, and (c) in advancing and putting into effect a plan, the reasonable and foreseeable consequence of which was to cause injury to the minor appellant. These are the same allegations, in essence, of the complaint in the Rodriguez case, supra. Under the holding of the Hughes case, supra, if there is a genuine issue of any material fact, a summary judgment cannot be granted. There was such a genuine issue of a material fact here. It was error for the trial court to grant the motion for a summary judgment.
The judgment is reversed and the case remanded for further proceedings. The costs will abide the final determination of the action.
ROSELLINI, C.J., HILL, OTT, and HALE, JJ., concur.
"Considering the rule relative to legislative intent, we find that, in the 1953 session of the legislature, two bills were introduced relating to the subject of governmental immunity, namely, House Bills Nos. 124 and 555....
"This act [No. 124], which would have specifically repealed Laws of 1917, chapter 92 (RCW 28.58.030), died in committee. House Bill No. 555, which did not repeal RCW 28.58.030, became Laws of 1953, chapter 118 (RCW 4.08.110, 4.08.120). From the foregoing, it is apparent to us that the legislature considered ... (RCW 28.58.030), at the time it passed ... (RCW 4.08.110, 4.08.120), and did not intend to repeal the former either expressly or by implication."