Caldwell v. Griffin Spalding County Board of Education , 232 Ga. App. 892 ( 1998 )

Pope, Presiding Judge.

Antwan Caldwell, a freshman on the Griffin High School varsity football team, was attacked and beaten by other members of the team during an apparent “initiation ritual” which took place at the team’s summer football camp. To recover for Antwan’s injuries, his father, Charles Caldwell, sued the Griffin Spalding County Board of Education (the “Board”), head football coach Lloyd Bohannon, and Griffin High School principal Larry White. The suit claimed that the Board, Bohannon, and White knew or should have known that these “initiations” were an annual event but failed to prevent the attack on Caldwell. The trial court granted summary judgment to the Board based on sovereign immunity and to Bohannon and White based on official immunity. Although Caldwell claims Bohannon and White were not entitled to official immunity,¹ we disagree and affirm the trial court’s judgments.

Under a 1991 amendment to the Georgia Constitution, “the public officers and employees of the [Griffin Spalding] County Board of Education . . . are entitled to official immunity, regarding any cause of action averred against them in their private (individual) capacity, when they are sued for discretionary acts taken within the scope of their employment and without actual intent to injure. See generally [Ga. Const. 1983,] Art. I, Sec. II, Par. IX; [cits.]” Crisp County School System v. Brown, 226 Ga. App. 800, 802 (2) (487 SE2d 512) (1997). When a public employee is sued over his misperformance or nonperformance of a discretionary act, the employee may be held liable only where evidence shows he or she acted with “actual malice or with actual intent to cause injury in the performance of [his or her] official functions.” Ga. Const. 1983, Art. I, Sec. II, Par. IX (d). The Supreme Court has determined that “actual malice” excludes any concept of “implied malice” or “reckless disregard” and means only “express malice or malice in fact.” Merrow v. Hawkins, 266 Ga. 390, 392 (2) (467 SE2d 336) (1996).

Construed in favor of Caldwell, the evidence shows Antwan was a freshman who accompanied the football team to its 1994 annual summer camp at Troy State University in Alabama. According to affidavits provided by former football players, older players at each year’s football camp traditionally “initiated” freshman players by “shaving [the] heads of first year players and general ‘horseplaying,’ such as trashing players’ rooms.” The evidence conflicts as to whether the coaching staff was aware of this tradition and implicitly condoned it, but no witness testified that the coaching staff or other school officials explicitly encouraged or approved this behavior. For the 1994 camp, players were housed in a dormitory with adult chaperones or coaches in rooms at the end of each hall. Bohannon testified that he warned the players that any horseplay would be punished. Nonetheless, during an afternoon break in activities a group of players, their faces masked, attacked Antwan in an empty dormitory room and beat him severely, knocking him unconscious and requiring hospital care. Antwan testified that he had witnessed other initiations that week and had seen older players shave younger players’ heads, spray them with shaving cream, and mess up their rooms, but had not seen anyone physically attacked. In fact, no witness testified that any prior initiation had involved physical beatings such as the one Antwan sustained.

Applying the standards set forth in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), we affirm the grants of summary judgment. We first note that this case is one alleging the negligent failure of school officials to protect Antwan from an attack by other students. The appellate courts of this state have consistently held that the supervision of student safety is a discretionary function, the proper exercise of which entitles school officials to immunity. See Kelly v. Lewis, 221 Ga. App. 506, 508 (471 SE2d 583) (1996) (student who was attacked by a gang on his way to school alleged that school officials failed to enforce rules governing supervision of arriving students); Teston v. Collins, 217 Ga. App. 829, 830-831 (1) (459 SE2d 452) (1995) (student attacked by a visitor to school claimed officials failed to control third party visitors); Guthrie v. Irons, 211 Ga. App. 502, 506 (2) (439 SE2d 732) (1993) (student who was attacked by another student in hallway claimed teachers failed to follow policy which required they monitor halls), disapproved on other grounds, Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994).

Caldwell argues that a state criminal statute against hazing (OCGA § 16-5-61) transforms this discretionary policing function into a ministerial one and that Bohannon and White had a ministerial duty not to aid and abet the crime of hazing. A school official does not have legal discretion to participate in a crime or to allow students under his supervision to commit a crime. OCGA §§ 16-2-20 and 16-2-21. Compliance with the law is mandatory, and in that sense arguably “ministerial.” However, in this case there is no evidence that Bohannon and White were parties to a crime or allowed a crime to occur. Even assuming that the beating in this case amounted to criminal hazing, it is -undisputed that this activity was unknown to Bohannon and White before and at the time it occurred, and that nothing had happened on that trip or in prior years to make it foreseeable that such conduct would transpire. Bohannon and White, therefore, could not be aiders and abettors to the hazing in this instance. OCGA § 16-2-20.

Moreover, in Teston, 217 Ga. App. at 830, we rejected a similar argument that a criminal statute governing the conduct of third parties created a ministerial duty in school officials to enforce that law. The plaintiff in that case argued that school officials had the ministerial duty to enforce the provisions of OCGA § 20-2-1180, which makes it unlawful for unauthorized persons to remain on a school campus. This Court rejected that argument, noting that the statute was directed at the offender and not at school administrators. Here likewise, OCGA § 16-5-61 makes anyone engaged in hazing guilty of an aggravated misdemeanor. But as in Teston, that prohibition merely gives “school [officials] discretionary authority to control [hazing].” Id.

Furthermore, no evidence in the record indicates Bohannon or White acted with “actual malice” towards Antwan. Caldwell’s argument, at best, is one of “implied malice”: that by failing to stop the prior incidents involving shaved heads and shaving cream attacks, Bohannon and White exhibited a reckless disregard for the rights of students such as Antwan by creating a climate in which this attack could occur. Merrow rejected this theory of liability. 266 Ga. at 392. Considering the lack of any evidence showing that either defendant actively condoned, encouraged, or took part in any of these initiation rites, or the violent attack on Antwan, Caldwell’s claim of actual malice must fail.

Judgment affirmed.

Beasley, J., concurs. Ruffin, J., concurs specially.

1 Caldwell does not appeal the grant of summary judgment to the Board.