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Judy Seal v. Carlsbad Independent School District9/7/1993
This is a wrongful death action brought by Judy Seal as personal representative of the estate of her deceased son, Kevin. Seal appeals from a summary judgment holding that the operation of a swimming pool is an inherently dangerous activity giving rise to strict liability, from which a school district and its employees enjoy statutory sovereign immunity under Section 41-4-4(A) of the Tort Claims Act, NMSA 1978, §§ 41-4-1 to -27 (Repl.Pamp.1989). See also (school districts immune under Tort Claims Act from strict liability for inherently dangerous activity). Holding that operation of a swimming pool is not an inherently dangerous activity and that neither of the alternative holdings of the trial court is dispositive, we reverse.
Facts. Kevin Seal was a physically and mentally disabled eighteen-year-old member of a Boy Scout troop for the handicapped. He could not swim and had a history of multiple seizure disorder. In 1988, Kevin went swimming with his troop as part of an aquatic camp that was planned, provided, and supervised by the Boy Scouts of America. The camp was held at the Carlsbad Natatorium, which is owned and operated by the Carlsbad Independent School District. While participating in the program, Kevin drowned, unnoticed by the Scout staff.
Proceedings below. The trial court granted immunity from liability to the school district and its employees on two theories. The first was that the operation of a swimming area is an inherently dangerous activity under the definition in Saiz and, therefore, any duty to provide adequate safety measures is nondelegable. This results in a strict liability claim for which there is no waiver of immunity under the Tort Claims Act. Alternatively, the court ruled that if operation of a natatorium is not an inherently dangerous activity and the duty is delegable, either the duty was delegated to and accepted by the Boy Scouts as an independent contractor or the
Scouts were an agent of the school district and no claim against the school district would have survived an earlier settlement that Seal made with the Scouts. In arriving at the independent contractor alternative, the trial court found as undisputed the facts that an agreement was reached between the school district and the Scouts that the school district would not have the responsibility of furnishing lifeguards and that the responsibility would be assumed solely by the Scouts. The trial court determined that even if Martin Fleming, a seventeen-year-old Scout who entered into the agreement on behalf of the Scouts, did not have actual authority to contract for the organization, either he had apparent authority or the transaction was ratified by Sheldon Johnson (the district executive for the Boy Scouts) on the first day of the aquatic camp. The court also found undisputed that the Scouts took responsibility for furnishing the lifeguards and did furnish them.
Alternative holdings not a final Disposition of issues of primary negligence. We agree that the school district has no liability for the negligent acts of an independent contractor. See §§ 41-4-3(E) & -4(D)(1) (governmental entities only liable for torts of public employees, excluding independent contractors). We also agree that when a public employee (agent) for whom an entity is vicariously liable settles a claim, the entity's liability is satisfied by the settlement. See . However, neither of these principles relieves the school district from any liability it may have as a consequence of its direct negligence. See id. Summary judgment on either of the alternative holdings was not dispositive.
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