Opinion
No. 74-1031
Decided December 24, 1975.
Negligence — Public school teachers — Tort liability — Welding teacher.
APPEAL from the Court of Appeals for Putnam County.
This cause originated with the filing of a complaint by appellees, MacArthur and Jackie Salyers, in the Court of Common Pleas of Putnam County. The complaint, in pertinent part, alleges that:
"1. At all times mentioned herein defendant, David Burkhart, was employed by defendant, Board of Education, Continental Local School District of Continental, and was acting within the scope of his employment.
"2. On or about November 11, 1971, on the premises of Continental High School in Continental, Ohio, defendant, David Burkhart, was conducting an adult education course on welding. Plaintiff, MacArthur Salyers, was a member of the class of defendant, David Burkhart, and on that date the defendants negligently permitted this plaintiff to weld when the premises and/or equipment were unsafe and an explosion occurred injuring plaintiff. Defendants failed to warn plaintiff of the dangerous conditions that existed."
Both appellant and the board filed motions to dismiss on the ground the complaint failed to state a claim upon which relief could be granted. The trial court sustained the motions, and found the board to be immune from tort liability while engaged in the performance of a governmental function. It held further that Burkhart did not act maliciously or deliberately, and was not liable in tort when acting within the scope of his employment involving the exercise of judgment and discretion.
The Court of Appeals affirmed the dismissal of the complaint filed against the board. However, it reversed the dismissal of the complaint against Burkhart, stating:
"We conclude that there is no Ohio authority which authoritatively extends the cloak of governmental immunity to a teacher, and that the general rule provides that teachers are individually liable for their own torts.
"The complaint in the present case, therefore, does not on its face affirmatively establish that no set of facts warranting recovery can be ultimately established by the evidence."
The cause against Burkhart was remanded to the Court of Common Pleas for further proceedings and is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Weaner, Hutchinson, Zimmerman Bacon and Mr. John W. Weaner, for appellees.
Messrs. Schroeder Schroeder, Mr. George E. Schroeder, Messrs. Williams, Deeg, Ketcham, Booker Obetz and Mr. James D. Booker, for appellant.
The motion to certify the record in this cause was allowed because of the breadth of the holding in the Court of Appeals and the importance of the proposition of law enunciated.
Although this court agrees that the question of tort liability of teachers acting within the scope of their daily teaching responsibilities is one which should be authoritatively answered, the facts of the instant case are inappropriate to support the announcement of a rule of broad and general application.
Hence, solely under the circumstances at bar and the allegations of the complaint herein, a majority of the court agrees that the judgment of the Court of Appeals should be, and hereby is, affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, STERN, W. BROWN and P. BROWN, JJ., concur.
CORRIGAN and CELEBREZZE, JJ., dissent.