Guthrie v. Irons , 211 Ga. App. 502 ( 1993 )

Andrews, Judge.

Plaintiffs’ 15-year-old son, Derrick Guthrie, a student at Harper High School in Atlanta, died from injuries sustained when Brian Ball, a fellow student, beat and kicked him in a school hallway between classes. This wrongful death action was brought against Ocie J. Irons, the school principal, and Mildred Faucette, a teacher at the school whose classroom was near the site of the attack. The trial court granted summary judgment in favor of both defendants, and plaintiffs appeal.¹

1. The complaint in this action does not seek to impose vicarious liability on the school system for actions taken by the defendant employees. Rather, the relief sought by the plaintiffs is to hold Irons and Faucette personally liable for the death of Derrick Guthrie. The immunity defense invoked in support of summary judgment by these individual defendants is not sovereign immunity, which protects the public treasury, but official immunity, which protects individual pub-lie agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption. Cooper v. Swofford, 258 Ga. 143 (368 SE2d 518) (1988); Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980); Truelove v. Wilson, 159 Ga. App. 906, 907 (285 SE2d 556) (1981). Official immunity is a form of governmental immunity accorded public officials while acting in discretionary matters as agents for the state, and, as such, is an extension of the state’s sovereign immunity to the individual agents of the state through whom the state acts. Hennessy, supra at 330-332. The immunity issue presented by this action, filed on December 3, 1990, is governed by the former constitutional provision regarding sovereign immunity applicable to causes of action accruing prior to January 1, 1991, which provided: “[T]he defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protection for such claims has been provided but only to the extent of any liability insurance provided.” See Ga. Const, of 1983, Art. I, Sec. II, Par. IX (as this paragraph of the Constitution appeared prior to the 1991 amendment eliminating waiver to the extent of liability insurance); Curtis v. Board of Regents &c., 262 Ga. 226 (416 SE2d 510) (1992).

The plaintiffs contend this action is not barred by official immunity because the individual defendants waived their immunity by purchasing liability insurance through their respective professional associations, covering this claim. It is undisputed that the school board, which employed the defendants, and which in the performance of a governmental function was entitled to the defense of sovereign immunity (Hennessy, supra at 329-330), did not provide the defendants with liability insurance. Under the constitutional provision applying to this case the state (or the board of education as the applicable governmental entity), by providing insurance, could choose to waive its own sovereign immunity, or the official immunity of its agents. Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 302-303 (357 SE2d 569) (1987); Swofford v. Cooper, 184 Ga. App. 50, 54 (360 SE2d 624) (1987); aff’d 258 Ga. 143 (368 SE2d 518) (1988); Hennessy, supra at 329; compare Loque v. Wright, 260 Ga. 206 (392 SE2d 235) (1990). However, neither Martin, supra, nor Swofford, supra, dealt with the issue of whether the official immunity of a governmental agent may be waived by insurance purchased, not by the state on behalf of its employees, but by the individual employee acting in his or her own behalf. Only action taken by the state (or applicable governmental entity) may waive governmental immunity of any kind. See Hennessy, supra at 329. Because official immunity is a form of governmental immunity arising from the state’s sovereign immunity, it may be waived under the applicable constitutional provision only where the state provides insurance on behalf of its employees. Moreover, if an employee of a governmental entity is allowed to waive his or her own official immunity by the purchase of private insurance, where a plaintiff seeks to impose vicarious liability on the governmental entity for whom the employee works, this would have the effect of allowing the employee to waive the state’s sovereign immunity, to the extent the employee’s insurance policy provides coverage for the state’s vicarious liability for the actions of the employee. See Dept. of Human Resources v. Poss, 263 Ga. 347 (434 SE2d 488) (1993). The purchase of private insurance by these individual defendants, even though it may cover negligence in the performance of their official acts as agents for a governmental entity, was purely a private decision, not an action taken by or on behalf of the governmental entity. Accordingly, the insurance purchased by the defendants did not waive their official immunity. Parker v. Wynn, 211 Ga. App. 78 (438 SE2d 147) (1993).

2. In the absence of any waiver of official immunity, the issue remains whether the defendants’ acts were discretionary, and therefore protected by official immunity, or ministerial acts not shielded by official immunity. Discretionary acts of government employees acting within the scope of their official authority, and done without wilfulness, malice or corruption, are protected by the doctrine of official immunity. Hennessy, supra. “It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well-established that where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without wilfulness, malice, or corruption.” (Citation and punctuation omitted.) Partain v. Maddox, 131 Ga. App. 778, 781 (206 SE2d 618) (1974). The determination as to whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is made on a case-by-case basis. Swofford, supra at 52.

The complained-of actions of both of the defendants were discretionary in nature. Plaintiffs argue that the defendants failed to protect Derrick by properly supervising students and monitoring the hallways. Plaintiffs claim Faucette failed to monitor the hallway outside her classroom during the change in classes. Evidence showed that school policy required teachers to be located in and around their doorways between classes to insure that students arriving in the classrooms took their seats in preparation for class, that other students moved on to their next class, and to monitor the halls. There was no inflexible rule governing this activity, which obviously required teachers to decide where their attention would be best directed at any particular moment to insure the orderly movement of students to the next class.

Faucette testified she was performing this task during a break between classes. She had moved a short distance down the hall from her classroom to move a group of students along when she heard a “thump” behind her. She turned around and saw Derrick on the hall floor with Ball standing over him kicking him. She immediately yelled at Ball to stop, and ran towards the boys. When she got there Ball stopped his attack, and Derrick got up, but collapsed a few seconds later. Faucette further testified that she had no knowledge of any previous threat made by Ball against Derrick.

In opposition to Faucette’s motion for summary judgment, the plaintiffs produced an affidavit and a deposition given by another student at the school, Jason Kent, a friend of Derrick’s, who testified that he told Faucette in her class the day before the attack that Ball had threatened to beat up Derrick. He further testified that neither he nor Derrick told anyone else at the school of the threat. Kent stated he saw Ball attack Derrick in the hall between classes outside of Faucette’s classroom, and that while the attack proceeded Faucette was just inside her classroom in a position near the door where she had a clear view of the area where the attack occurred in the hall. Kent testified that the attack went on for about two or three minutes, while the two boys were surrounded by a group of people screaming and making comments like “hit him, get up, whatever.” According to Kent, after Ball knocked Derrick to the floor with his fist, he repeatedly kicked Derrick in the head and chest with the steel-toed boots he was wearing, causing Derrick’s head to violently smash into the adjacent wall. He further stated that because of all the noise of people going to class, “[i]f you were standing around the corner and you just heard all the noise you would think they was just going to class. But if you looked and saw the circle you knew something was happening.” Kent did not testify that Faucette saw the attack and ignored it, but that she was not looking in that direction, that “evidently she must not have seen it,” and that she did not proceed into the hall until after the attack had stopped, and Derrick got up to walk away. Kent testified he did not attempt to call out to Faucette to draw her attention to what was happening during the attack. Of course, in reviewing the grant of summary judgment in favor of the defendants, we must accept the facts most favorable to the plaintiffs as set forth in Kent’s testimony.

As principal of the school, Irons was responsible for supervision of all the students and maintenance of discipline at the school. There was no evidence that he had any prior knowledge of Ball’s threat against Derrick. Irons was not in the area of Faucette’s classroom when the attack occurred, nor is there any evidence that he was required to be present in that particular location to help monitor the hall between class changes.

Plaintiffs argue that these duties required the defendants to carry out ministerial acts similar to those considered in Nelson v. Spalding County, 249 Ga. 334 (290 SE2d 915) (1982), where the court determined it was the duty of a governmental agent to replace or repair missing or damaged road signs when instructed to do so by others, and that the act of replacing or repairing the signs, which required no exercise of discretion, was ministerial rather than discretionary. According to the plaintiffs, since the school board ultimately creates the policies giving rise to the duties at issue, the defendants simply carry out these duties by ministerial acts requiring no exercise of discretion. The ministerial duty carried out in Nelson, supra, is not remotely comparable to the difficult task faced by the school principal and teacher in this case in supervising and controlling the activities of students, especially during a change in classes, when large numbers of students are moving from one location to another.

“A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” (Citations and punctuation omitted.) Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). Both this Court and the Supreme Court have previously held in other factual situations that making decisions requiring the means used to supervise school children is a discretionary function of a school principal. Lewis v. McDowell, 194 Ga. App. 429, 431 (390 SE2d 605) (1990); Hennessy, supra at 332. The general task imposed on Irons to monitor, supervise, and control the movement of large numbers of students during a change in classes, and the same task imposed on Faucette in the area of her classroom, necessarily required the exercise of some discretion in deciding where their attention should be directed at any particular moment, and what action might be required. See Hicks v. Walker County School Dist., 172 Ga. App. 428, 429-430 (323 SE2d 231) (1984) (school bus driver’s actions were discretionary and entitled to official immunity in suit arising out of an assault on a student by fellow students, while riding on a school bus). Under the circumstances presented in this case, the defendants were exercising what amounts to a policing function analogous to the discretionary activities of police officers. See McDay v. City of Atlanta, 204 Ga. App. 621 (420 SE2d 75) (1992); Logue, supra.

The plaintiffs argue only that Faucette and Irons negligently performed ministerial acts. Plaintiffs do not argue, nor is there evidence to support any claim, that Faucette wilfully ignored the attack, or that either defendant acted wilfully, maliciously, corruptly, or outside the scope of their authority in any manner that would remove official immunity even if their actions were otherwise discretionary. The difficulty of determining whether teachers charged with supervision of many students moving between classes should be held liable for failing to direct their attention in one direction rather than another underscores the conclusion that this is one of many judgment calls made daily by teachers dealing with supervision of students. Even if factual questions may exist as to negligence, the defendants’ actions in this case were made in the exercise of a discretionary function, and were shielded by official immunity. In exercising their professional judgment, the defendants should not be deterred or intimidated by the constant threat of personal liability, as long as they act within the scope of their authority, and without wilfulness, malice or corruption. Both defendants were entitled to summary judgment based on official immunity.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Johnson and Smith, JJ., concur. Pope, C. J., McMurray, P. J., Cooper and Blackburn, JJ., dissent.

1 Although the trial court’s orders purport to grant each defendant’s “motion to dismiss,” the parties agree the orders should be treated as orders granting summary judgment since both defendants relied on evidence outside the pleadings.