(dissenting). Since the issue upon which the majority rests its reversal of the trial court is a narrow legal one, I restrain from supplementing the facts as they are viewed and commented upon by my brethren.1 The only issue *23of real moment in which we are in apparent disagreement is whether the immunity then provided by N. J. S. A. 18A :20-35 was available to defendant Board.
As narrow as this issue appears, and as succinctly as it may be stated, it requires a search for legislative intent. So I am of the judgment that the bland statement by the majority, “The test under the statute is not what negligence caused the injury but whether the injury arose from the use of the property,” at worst oversimplifies the problem and begs the issue, and at best represents a satisfaction, which I do not share, that the word “use” is the alpha and the omega of that which the legislature intended. This court has already said, with respect to the statute, “It is not entirely clear what the Legislature meant by ‘injury from the use’ of a public building.” Estelle v. Bd. of Ed., Red Bank, 26 N. J. Super. 9 (App. Div. 1953), modified on other grounds 14 N. J. 256 (1954). I have no doubt at all that were the Board intentionally and maliciously to hurt someone on its property with something like a bear trap, or to induce a known nonswimmer to jump into a ten-foot deep swimming pool during a school class, we would be quick to declare that it was not the intent of the legislature to immunize against responsibility for such activity, even though the premises, were being “used” by the injured persons.
A search for legislative intent often reasonably starts with an attempt to divine what situation the legislature meant *24to remedy, what evil to overcome. Brewer v. Porch, 53 N. J. 167, 174 (1969). Accordingly, I believe that legislative intent in the enactment of the statute with which we are concerned cannot be intelligently considered without some regard for the duty or duties of the Board. The exculpatory statute would be unnecessary were there not a duty for the breach of which an action might be maintainable absent the statute. There is a presumption against useless legislation. Magierowski v. Buckley, 39 N. J. Super. 534, 554 (App. Div. 1956).
Exploration of Board involvement from the standpoint of its duty to those who come upon its property suggests to me that with regard to the parking lot, the Board’s duty (irrespective of statute, for the moment) cannot be unified or consolidated into one standard for all. Absent the statute, liability would unquestionably exist for damage suffered by those who were invited, came upon the parking lot to park, and were injured from negligence in the construction or maintenance of the parking lot. Bates v. Valley Fair Enterprises, Inc., 86 N. J. Super. 1, 6 App. Div. 1964). I agree entirely with the majority that the statute was intended to protect the Board from liability thus imposed.
The duty owed to students by the Board is a different duty (leaving aside the parking of cars by students, a situation in no way involved here). It is “well-recognized in our State and elsewhere” that a Board owes at least the duty to “exercise reasonable supervisory care for the safety of students.” Titus v. Lindberg, 49 N. J. 66, 73 (1967), and that it is accountable for injuries resulting from failure properly to discharge that duty. Ibid. Performance of this duty — said to include, as well, the duty “to take reasonable precautions for [the student’s] safety and well-being” — is to be measured by “ordinary principles of negligence.” Jackson v. Hankinson and Bd. of Ed. of New Shrewsbury, 51 N. J. 230, 234, 235 (1968). I believe this duty to embrace as well as obligation to provide a safe place to learn, and the employment of the care of the reasonable and prudent person in this regard. Certainly if a shopkeeper owes the duty to keep the premises *25to which his customers come reasonably safe for their purposes (Wollerman v. Grand Union Stores, Inc., 47 N. J. 426 (1966); Krackomberger v. Vornado, Inc., 119 N. J. Super. 380 (App. Div. 1972)), a school board might be expected to do the same for the students who, for the most part, have no choice as to whether they attend school or not. As noted in Jackson, supra, “the relationship between the child and the school authorities is not a voluntary one but is compelled by law.” (51 N. J. at 235.) That in such circumstances the “supervisory” duty of the Board extends at least to the perimeters here suggested seems to me beyond any question. Cf. Titus, supra.
The question is not whether such a duty exists. We know that such a duty exists because of the respectable precedent cited (although there ma,y still be open ends with regard to the boundaries of the duty). The question really is whether the statute limits or immunizes against liability for breach of this duty in the same manner that we agree it minimizes against liability when the public grounds, buildings or structures are being used in the manner and for the purpose for which they were designed.
Nothing in the statute so suggests.
The proposition that this dissent contrives judicial legislation is only meritorious to those willing to accept the expansive definition of “use” forwarded by the majority, who give lip service to Estelle, supra, but disregard its crystal clear caveat as to the meaning of that word. Judicial legislation can as readily be charged to the majority in its apparent willingness to confer immunity any time an accident occurs upon public property. Were I to accept the position of the majority, related in terms of a gymnasium accident in a parking lot, I could not conceive of an accident occurring on public grounds that did not in some manner entail their “use.”
I dissent because I am certain that the legislature did not intend such a far reach. Had they intended to confer immunity to the Board in all cases involving activities in or upon public grounds, buildings or structures simply because *26of the locale of the occurrence, I think they would have said so more clearly. This is the sense of Estelle where the nature of the activity and its relationship to the purpose of the public structure is determinative. It is to be seen that in only one'of the cases cited in Estelle and set forth by the majority and in none of the other “companion statute” cases cited by the majority was there evidence that the facility was being used for a purpose other than that for which it was primarily designed. The sole exception is in Falcone v. Board of Education, 17 N. J. Misc. 75, 4 A. 2d 687 (Com. Pl. 1939), a case which preceded Estelle by fourteen years, was not reviewed on appeal, and which, most significantly, involved voluntary activities by the injured party which were not required either by another party or in order to use the facility. I am persuaded that reliance by the majority upon the fact that “the injuries to the infant plaintiff * * * were caused by a defect in the maintenance of the parking lot” is insufficient to avoid the holding of Estelle, where the causative factor in terms of locale yielded to the nature of the activity.
Esoteric, and concededly primarily semantic arguments could be fabricated to support the position. Eor instance, it could be argued that the injury here does not result from the “use” of the premises, but rather from the failure of the Board to insist upon the use of a different and safe place. No statute immunizes from this breach of duty. But I think this would be recourse to sophistry. The precise question is: Did N. J. S. A. 18A:30-35 provide immunity from liability for the Board’s breach of its duty to provide a safe place to learn? I would answer this in the negative.
Such a disposition, while derived wholly from legislative intent, is also consistent with a trend, based on sound social policy, acknowledged in Jackson, supra, 51 N. J. at 235, where the following appears:
* * * And although there has thus far been no express and complete disavowal of active wrongdoing terminology, there has been a shift towards frank recognition that municipal entities, along with all others, should justly be held accountable for injuries resulting *27from their tortions acts and omissions under ordinary principles of negligence, except, as a matter of policy, in situations involving so-called discretionary determinations and the like, recently dealt with in Amelchenko v. Freehold Borough, 42 N. J. 541, pp. 549-550 (1964), Hoy v. Capelli, 48 N. J. 81, 87-91 (1966) and Visidor Corp. v. Borough of Cliffside Park, 48 N. J. 214, pp. 220-221 (1966), cert. denied, 386 U. S. 972, 87 S. Ct. 1166, 18 L. Ed. 2d 132 (1967). See B. W. King, Inc. v. Town of West New York, 49 N. J. 318, pp. 324-325 (1967); Coleman v. Edison Tp., 95 N. J. Super. 600, 605 (App. Div. 1967).
I turn to whether the pleadings and proof in the case were sufficient to sustain a verdict against the Board upon the rule of law I support, and whether the charge of the court was competent to instruct the jury in this regard.
At the outset, I would obviate any suggestion that inculpation of the Board is a verdict inconsistent with exculpation of the teacher. The jury may well have believed that in the situation wdiere they could have found on the evidence that the superintendent knew of the practice of using the parking lot as a gymnasium or athletic field, his silence in circumstances known to both him and the teacher was tantamount to an instruction to continue this long time practice, and that the teacher, therefore, conformed to the standard of reasonable and prudent conduct.
As a matter of fact, the case was submitted to the jury only on theories of independent negligence, rather than vicarious liability, for as the majority points out, respondeat superior was not even charged. In passing, I observe that this omission saves concern as to whether the verdict might be susceptible to a claim of inconsistency based on an inability to determine whether it was properly predicated on independent negligence of the Board or improperly predicated upon vicarious liability for the teacher’s actions under the doctrine of respondeat superior. Cf. Anderson v. Modica, 4 N. J. 383, 393-395 (1950). A theory of vicarious liability was not available to the jury.
Both the pleadings and the pretrial contentions embodied in the pretrial order raised the issue of the Board’s inde*28pendent negligence in its “failing to provide a safe place for participation in gymnastic activities” (the complaint) and “failing to provide a proper place for physical education” (the pretrial order).
I am satisfied that, the duty being that set forth above and no statutory bar to liability existing for reasons I have already detailed, the verdict has support in the credible evidence in the whole record (State v. Johnson, 42 N. J. 146 (1964), no manifest miscarriage of justice appears (Dolson v. Anastasia, 55 N. J. 2 (1969)), and we should be careful not to substitute our judgment for that of the jury (Wytupeck v. Camden, 25 N. J. 450, 466 (1957)).
The evidence below, if credited, proved (a) the existence of a hazard to running activities which should have been apparent to the reasonably prudent educator, or layman for that matter: the constant presence of a substantial amount of loose gravel on a slightly inclined macadam parking lot; (b) knowledge on the part of the school superintendent — the administrative head at the school ■ — ■ of that hazard and of the fact that “the girls” (students) would be required to run in that area during the ordinary course of instruction in their gym classes. I have no difficulty ascribing agency between the superintendent and the defendant board, nor in imputing the superintendent’s knowledge to the Board. Providing only that this evidence reached the jury accompanied by careful instructions, I am well satisfied that the pleadings and proof were adequate to sustain the verdict.
In submitting the case to the jury, the judge charged, entirely properly, I think, and compatibly with the theory of the trial, that:
* * * It is the duty of the Board of Education to exercise such care for the safeguarding of its students while in attendance upon the school property or classes during regular school hours from injuries that were reasonably foreseeable as would have been exercised by the reasonably prudent person under the proven circumstances.
Now, in order for you to charge the Board of Education, of course, with negligence in this case, it will be necessary that knowledge by the Board of Education of the use of this driveway and parking lot *29by the class and the existing conditions be established by the preponderance, or such circumstances be shown by such proof that in the exercise of reasonable care would have caused it to be aware of the said use or such as would have caused a reasonably prudent person to have been aware of such use. *' * *
I conclude that a duty existed, there was proof of its breach, the duty was adequately described to the jury in the charge, and the burden of proof was correctly assigned. It follows that the verdict is, in my opinion, sound.
However, it is also clear to me that, in view of the nature of the hazard —■ the very fact which implicates the Board — it was error to remove the issue of plaintiff’s contributory negligence. The jury should have been required to decide whether plaintiff’s conduct, in the face of this fairly obvious and apparent danger, was that of a reasonable and prudent person similarly circumstanced.
Accordingly, I would reverse and remand for a new trial. At first constrained to vote for a new trial only on the issue of the infant plaintiff’s contributory negligence, I am now satisfied that in all fairness to both parties the Board’s negligence and the infant plaintiff’s negligence should be ad-measured in the same trial and on the same testimony. Therefore I would vacate the judgment entered. No appeal having been taken by plaintiff against the dismissal of the teacher’s action, I would limit the new trial to plaintiff’s asserted cause of action against the Board.
I cannot resist, however, a comment with respect to the majority's [third] second footnote, and the phrase to which it is attached. Were *23I sitting as a fact finder, my view of the photographs said in testimony to represent the situation as of the day of the accident, coupled wtih the testimony, would leave me inescapably convinced that: (a) the parking lot was at no place level; (b) it was generously covered with an inordinate amount of gravel; and most significantly (e) that the superintendent, whose office which he visited daily was in the school building serviced by the parking lot, could not possibly have been unaware of the hazardous condition of the parking lot in terms of a place for girls running. If a reasonable inference from direct proof makes evidence competent in the sense that word is used by the majority, then we also disagree in this respect. But no matter; as the majority notes, it would have come to the same conclusion in any event.