Request By:
Mr. Earl Shaw, Superintendent
Garrard County Schools
101 Richmond Street
Lancaster, Kentucky 40444
Opinion
Opinion By: Robert F. Stephens, Attorney General; Robert L. Chenoweth, Assistant Attorney General
In your letter to the Office of the Attorney General you stated the Garrard County Board of Education is concerned with a problem arising from the operation of small motorcycles and mini-bikes on the parking lot and grounds of the elementary and high school. You noted that youngsters of less than driving age are utilizing the school property as a convenient riding area and that parents of some of these children have asked the board of education to give its sanction to this activity. On behalf of the Garrard County Board of Education you have asked for our opinion regarding the board's options in this matter and have specifically asked the following questions.
1. Is it lawful for individuals who are not licensed to drive to operate a motorcycle on the parking lot and grounds of a school?
2. If so, would the Board of Education have discretion to sanction this activity and authorize the expenditure of public funds in support thereof?
3. Could the school system or the individual members of the Board of Education be held liable if an individual was injured or killed while engaging in this activity?
We concluded in OAG 74-796, copy attached, that a motorcycle or trail bike or mini-bike is a motor vehicle as defined by KRS 186.010(4), (7)(a),(b), and a person operating such a vehicle upon a street is required to have an operator's license which may not be issued to one under the age of sixteen. See KRS 186.410(1) and 186.440(1). However, your first question is as to whether it is lawful to operate such motor vehicles on public school property. We can find no law prohibiting such operation. This activity may nevertheless be dealt with by action of the local board of education. Each board of education has the responsibility and the power to manage and control the school property located within its district. KRS 160.290(1),(2). This statute assigns to the board the duty of utilizing school property for the purpose of promoting education within the district in such ways as the board deems necessary and proper. It is authorized and directed to make and adopt rules and regulations to this end.
In view of our answer to your first question we are of the opinion the board of education could adopt such rules and regulations as it deems necessary regarding these activities. We are of the opinion, however, that it would be illegal to expend public school monies to support this activity on school property. Section 184 of the Kentucky Constitution mandates that public school money may only be spent for an educational purpose rather than for an activity which might be beneficial to education. It is difficult to see how the possible permitting of small motorcycles and minibikes to be ridden on public school property would constitute even an activity beneficial to education.
The last question to be considered is the possible liability consequences of an affirmative decision by the local school board to the permitting of the operation of small motorcycles and minibikes on the school property. We have stated in prior opinions that school districts enjoy sovereign immunity for torts and therefore there can be no liability upon the school district as such for an injury to a student, either on or off school grounds. See, for example, OAG 74-783, copy attached, and note the cases in this regard cited therein. Also, as an integral part of the state, a board of education is entitled to protection under the state's sovereign immunity. See Board of Education of Leslie County v. Lewis, Ky., 449 S.W.2d 765 (1970).
As to the possible liability of members of a local board of education, individually, the Kentucky Court of Appeals, in Copley v. Board of Education of Hopkins County, Ky., 446 S.W.2d 521, pointed out that a public officer is subject to liability for his actions within the scope of his employment if such actions produced damage by reason of the officer's personal fault, such as negligence or deliberate wrongdoing.
We cannot, nor may anyone, anticipate the many ways injuries or worse may occur from riding a motorcycle or mini-bike across real property. We presume some of this riding takes place on unused, probably surplus certifiable real property; and although the natural conditions of this land being used for this purpose are probably such that children riding over the land might be expected to understand and appreciate these natural conditions, the fact still remains that proper consideration must be given of the immaturity of the children using the property and the distinct characteristics of the vehicle being used. We believe each board member individually owes a duty of care to those who knowingly are permitted to come upon and use school property. That duty of care, we think, includes the duty to anticipate danger that is reasonably foreseeable. Thus, we think clearly the possibility would exist for school board members to be sued individually as an outgrowth of an injury to a child riding a motorcycle or mini-bike on the school property and, of course, depending upon the circumstances in issue, a possibility of liability being assessed against the board members for monetary damages.