Larson Ex Rel. Larson v. Independent School District No. 314, Braham

OTIS, Justice

(dissenting).

In order to assess the conduct of Jack Peterson, it must be kept in mind that he was principal of the entire school, not just of the physical education department. He was required to supervise the development, planning, and administration of the school curriculum, to supervise and evaluate all of the teachers, and generally to maintain conditions conducive to the safety and welfare of all of the students throughout the school day.

The record indicates that Peterson acted responsibly during the transition from Em-bretson to Lundquist. Both of those teachers were qualified and certified as competent to plan and teach a physical education curriculum. On the other hand, Peterson was not. He required Lundquist to meet with Embretson before Lundquist took over the class and had him report back regarding their discussions. Peterson’s performance as a general school administrator is not challenged. He gave both Embretson and Lundquist the Board of Education physical education guide book. He left the details to the experts — the teachers, as an efficient administrator should.

Peterson required and received weekly lesson plans from all of his teachers, including Lundquist. Both before and after the accident, he periodically observed Lund-quist’s physical education classes.

It is unclear to me what more a principal can be expected to do, particularly when he is. not trained or experienced in every course taught in school. If plaintiff had proved that Peterson had some expertise in physical education techniques and that he had notice that his teacher was not conducting tumbling exercises safely, it may well be a jury could find him negligent for not correcting the situation. Such is not the case, however.

Several courts which have considered this issue have refused to hold a school principal liable. In Luce v. Board of Education of Johnson City, 2 A.D.2d 502, 157 N.Y.S.2d 123 (1956) the principal was not liable for negligent supervision when an elementary child was injured during a physical education class. The court said:

“ * * * Her duties, too, were administrative, supervisory, and general in nature. She was responsible for the assignment of class rooms, for discipline in the school, and administrative supervision over the teachers in the school. It does not appear that she had any authority, let alone duty, to personally supervise or to direct the nature of activities or limit the participation of any pupil in a physical education class. The physical education department was a separate arm of the Board of Education, operating in all of *125the schools. Mrs. Denton, the physical education teacher in immediate charge here, was an agent of the physical education department. It is a matter of common knowledge that in modern times the educational and competency requirements of such a teacher are high. Of necessity the detailed activities of each class and of each student therein must be left to such supervising teacher. As observed in Thompson v. Board of Education, 280 N.Y. 92, 96, 19 N.E.2d 796, 797: ‘Appellant [a principal] could not personally attend to each class at the same time, nor was any such duty imposed upon him.’ * * * It does not appear that the principal had the power or authority to direct the detailed conduct of a physical education class, or to substitute her judgment for that of [the teacher].” Id. at 506,157 N.Y.S.2d at 127.

The Luce case was followed and quoted with approval by the Oregon Supreme Court in Vendrell v. School District No. 26C Malheur County, 226 Or. 263, 360 P.2d 282 (1961). In that case a student was injured while playing football. The court held that the principal had no duty to supervise “the detailed activities involved in the conduct of the athletic program.” Id. at 270, 360 P.2d at 286. Two recent Kentucky cases have also refused to hold the principal liable without a clearer showing of a breach of duty. Wesley v. Page, 514 S.W.2d 697 (Ky. 1974); Cox v. Barnes, 469 S.W.2d 61 (Ky. 1971).

The impact and effect of the majority’s decision may shift much of the responsibility for the safety and welfare of the students from the personnel best suited to handle such problems to an administrator who is not an expert in every area of teaching and cannot be in all places at all times. It would compel principals out of an abundance of caution to impose restrictions and restraints on subordinate teachers which might very well be inappropriate and wholly inconsistent with sound teaching practices. Except in the rare case where the principal is negligent in selecting a teacher or fails to respond to actual notice of a potential hazard I would limit the liability of the principal and impose it where it belongs — on the negligent teacher and on the school board which is vicariously responsible under principles of respondeat superi- or.