BARNETT Et Al. v. ATLANTA INDEPENDENT SCHOOL SYSTEM Et Al.

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 4, 2016
In the Court of Appeals of Georgia
A16A1194. BARNETT et al. v. ATLANTA INDEPENDENT
SCHOOL SYSTEM et al.
PETERSON, Judge.
Jena Barnett and Marc Antoine Williams (“Appellants”) filed a wrongful death
suit against Phyllis Caldwell, alleging that leaving students unsupervised in her
classroom in violation of a school policy caused the death of Appellants’ child,
Antoine Williams. The trial court granted summary judgment to Caldwell and denied
Appellants’ partial motion for summary judgment, concluding that the claim against
Caldwell in her individual capacity involved a discretionary act for which she was
entitled to official immunity. Appellants appeal and argue that the trial court erred
because the school policy barring teachers from leaving students unsupervised in a
classroom created a ministerial duty to which official immunity did not apply.
Because well-established precedent makes clear that decisions relating to the control
and supervision of students are discretionary actions for which teachers are entitled
to official immunity, we are left no choice but to affirm the trial court’s grant of
summary judgment to Caldwell.
“On appeal from the grant of summary judgment, this Court conducts a de novo
review of the evidence to determine whether there is a genuine issue of material fact
and whether the undisputed facts, viewed in the light most favorable to the
nonmoving party, warrant judgment as a matter of law.” Leone v. Green Tree
Servicing, LLC, 311 Ga. App. 702, 702 (716 SE2d 720) (2011) (footnote omitted).
So viewed, the evidence shows that on October 14, 2008, Caldwell was an
Atlanta Public Schools (“APS”) teacher working at Benjamin E. Mays High School.
Caldwell’s classroom was in a cluster system that shared a common entrance with the
classroom of another teacher, Gibril Kanu, and their classrooms were divided by a
bifold wall. Antoine Williams was a student in Caldwell’s seventh-period American
Literature class.
At approximately 2:45 p.m. on October 14, Caldwell left the classroom. During
the time that Caldwell was gone, Williams and another student engaged in horseplay
that caused Williams to fall to the floor with the other student landing on top of him.
2
Williams subsequently collapsed and was lying unconscious on the ground in the
classroom when Caldwell returned at about 3:15 p.m. Caldwell called 911 because
Williams appeared to be in distress. Emergency medical technicians took Williams
to Grady Memorial Hospital, where he was pronounced dead. The medical examiner
determined that Williams died from blood loss resulting from the laceration of a
major blood vessel caused by a dislocated collarbone.
After Williams was pronounced dead, the school principal called Caldwell and
other school staff into his office to get details about the incident. Caldwell lied, telling
the principal that she was in the classroom the entire time. Caldwell reported that she
stopped some horseplay, but observed no activity out of the ordinary. She told the
principal that Williams complained about his nose bleeding and fell to the ground
when he tried to stand.
A few days later, however, the principal learned that Caldwell was not in the
classroom when Williams collapsed. A subsequent investigation by an independent
company hired by APS also concluded that Caldwell was away from her classroom
when Williams was injured.1 After discovering that Caldwell had lied about being in
1
On appeal, Caldwell challenges the “summary and synthesis” of the
investigator’s report. There is no dispute that the investigation was commissioned by
APS as a regular course of business, and Caldwell conceded below that the
3
the classroom, the principal confronted Caldwell about her misrepresentations.
Caldwell admitted that she was not in the classroom during the time of the incident
and gave several different explanations for leaving the room. Caldwell told the
principal that she left (1) to use a telephone, (2) to make copies of papers, or (3) to
find another student. The principal deposed that it had never been made clear to him
why Caldwell left her classroom.
In her deposition, Caldwell stated that she left her classroom to use the faculty
restroom located down the hall from her classroom. Caldwell deposed that, before she
left, she asked Kanu to “look out” or “listen” for her class, and that she had asked
Kanu to do this on previous occasions. Caldwell stated that she did not specifically
investigator was hired to find facts. Under OCGA § 24-8-803(8)(c), factual findings
resulting from an investigation made pursuant to authority granted by law are
admissible in civil proceedings, unless the sources of information or other
circumstances indicate a lack of trustworthiness. There is no dispute that the
independent investigator relied on the statements of several witnesses who have not
testified in this case, but there is no challenge, either by Caldwell or by Appellants,
that these sources of information were unreliable or lacked trustworthiness.
Therefore, the investigator’s report is admissible and competent evidence. See Beech
Aircraft Corp. v. Rainey, 488 U.S. 153, 162-70 (109 S. Ct. 439, 102 LE2d 445)
(1988) (holding that portions of investigatory reports containing findings admissible
under Federal Rule of Evidence 803(8)(A)(iii), the federal counterpart to OCGA § 24-
8-803(c), are not inadmissible merely because they state a conclusion or opinion).
APS did not accept the independent investigator’s opinion that Caldwell left the
classroom unsupervised, but otherwise had no issue with the investigator’s
investigation, and it relied on the investigator’s report to take subsequent actions.
4
recall asking Kanu to go into her classroom, and she admitted that she did not see him
go into her class, as Kanu remained seated as his desk when she left. The independent
investigator, who talked with Kanu as well as Caldwell, found that Caldwell did ask
Kanu to monitor her class and that Kanu did so from his adjoining classroom. Kanu
was not deposed in this case.
Caldwell further stated that she returned to the classroom at about 3:00 p.m.,
heard that students had been “horsing around” in her classroom, saw Williams sitting
at his desk, and then left her classroom again to search for students who were no
longer there. Caldwell stated that she returned to the classroom for the second time
at 3:15 p.m., at which point she saw Williams on the floor.
Caldwell admitted that she did not ask Kanu or anyone else to listen out for her
classroom when she left the second time.
Appellants filed this wrongful death suit against Caldwell, alleging that
Caldwell was liable in her individual capacity because she left her classroom
unsupervised in violation of violation Section 6.5 of the Benjamin E. Mays High
School Faculty and Staff Handbook (“Section 6.5”). Section 6.5 provides:
5
The classroom teacher is solely responsible for the supervision of any
student in his or her classroom. Students are never to be left in the
classroom unsupervised by an APS certified employee.
(emphasis in original). Caldwell told the investigator that she was aware of the
policy.
The trial court granted summary judgment to Caldwell, concluding that the
allegations of negligence involved a duty to supervise students in her classroom, and
thus her absence was a discretionary act entitled to official immunity. This appeal
followed.
Appellants argue that Caldwell was not entitled to official immunity because
she violated a clear and unambiguous school policy, Section 6.5, that imposed an
absolute and definite duty to not leave students in her classroom unsupervised. But
the complained-of act relates to Caldwell’s responsibility to ensure the supervision
of her classroom, a function that we have repeatedly held is entitled to official
immunity.
The official immunity afforded to teachers arises from subsection (d) of the
1991 amendment to Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution. See
Coffee Cty. School Dist. v. Snipes, 216 Ga. App. 293, 296 (454 SE2d 149) (1995);
6
Daniels v. Gordon, 232 Ga. App. 811, 813 (2) (503 SE2d 72) (1998). Subsection (d)
pertinently provides that public employees
may be liable for injuries and damages if they act with actual malice or
with actual intent to cause injury in the performance of their official
functions. Except as provided in this subparagraph, officers and
employees of the state or its departments and agencies shall not be
subject to suit or liability, and no judgment shall be entered against
them, for the performance or nonperformance of their official functions.
In Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994), the Supreme Court of
Georgia held that the term “official functions” means “any act performed within the
officer’s or employee’s scope of authority, including both ministerial and
discretionary acts.” 264 Ga. at 753 (6). Subsection (d) thus “provides no immunity
for ministerial acts negligently performed or for ministerial or discretionary acts
performed with malice or an intent to injure. It, however, does provide immunity for
the negligent performance of discretionary acts[.]” Id.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.
7
McDowell v. Smith, 285 Ga. 592, 593 (678 SE2d 922) (2009) (citation omitted).
“Whether the act of a public official is ministerial or discretionary is determined by
the facts of each individual case, particularly the facts specifically relevant to the
official’s act or omission from which the alleged liability arises.” Grammens v.
Dollar, 287 Ga. 618, 620 (697 SE2d 775) (2010) (citations and punctuation omitted).
Although discerning the line between ministerial and discretionary duties is
sometimes difficult, it is well-established that the task of supervising and controlling
students is a discretionary act entitled to official immunity. See, e.g., Wright v. Ashe,
220 Ga. App. 91, 94 (469 SE2d 268) (1996) (“[T]he general task imposed on teachers
to monitor, supervise, and control students has . . . been held to be a discretionary
action which is protected by the doctrine of official immunity.”). And this immunity
applies “even where specific school policies designed to help control and monitor
students have been violated.” Chamlee v. Henry Cty. Bd. of Educ., 239 Ga. App. 183,
184 (1) (521 SE2d 78) (1999); see also Perkins v. Morgan Cty. Sch. Dist., 222 Ga.
App. 831, 836 (2) (476 SE2d 592) (1996).
Appellants argue that Section 6.5 created a ministerial duty and Caldwell was
not entitled to official immunity for failing to comply with the policy. Although a
ministerial duty may be established by a written policy, see Roper v. Greenway, 294
8
Ga. 112, 114-15 (751 SE2d 351) (2013) (citations omitted), the existence of a written
policy does not automatically create a ministerial duty, see Davis v. Effingham Cty.
Bd. of Comm’rs, 328 Ga. App. 579, 585 (2) (760 SE2d 9) (2014). When analyzing
whether a public employee’s act or omission from which liability arises is a
ministerial or discretionary act, our determination “depends on the character of the
specific actions complained of, not the general nature of the job[.]” McDowell, 285
Ga. at 594 (citation omitted; emphasis added); see also Daley v. Clark, 282 Ga. App.
235, 238 (2) (638 SE2d 376) (2006). Here, Caldwell did just enough for her actions
to be discretionary.
Caldwell asked her neighboring teacher to “listen out” for her class when she
left the first time,2 and it is not disputed that the horseplay that led to Williams’s death
occurred during Caldwell’s first departure. Caldwell’s request evidenced an exercise
of discretion related to the supervision of her students – her reaching the conclusion
that the neighboring teacher’s “listening” was sufficient supervision for the time
2
If Caldwell’s testimony was the only evidence of that request, we might have
to reverse, since Appellants challenge her credibility and we cannot resolve such
challenges on summary judgment. But that is not the only evidence: the investigator
found that she did make that request, and reached that conclusion based on talking
with the neighboring teacher. Appellants do not challenge the investigator’s findings.
Accordingly, the fact that she made that request of the neighboring teacher is not
legitimately disputed.
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during which she was absent from the classroom. See Grammens, 287 Ga. at 620-21
(affording official immunity to teacher because a school policy requiring the use of
protective eyewear during activities involving “explosive materials” did not define
the term “explosive materials” and thus “the policy required the instructor to engage
in a discretionary act, i.e., to exercise personal deliberation and judgment by
examining the facts and reach a reasoned conclusion with regard to the applicability
of the dictates of the written policy”). And although Caldwell’s conclusion was
tragically wrong, second-guessing her determination is the very sort of thing that
official immunity prohibits. See id. at 619 (“The rationale for [official] immunity is
to preserve the public employee’s independence of action without fear of lawsuits and
to prevent a review of his or her judgment in hindsight.”) (citation omitted); Guthrie
v. Irons, 211 Ga. App. 502, 507 (2) (439 SE2d 732) (1993) (concluding that teachers
faced with many judgment calls in determining the means to supervise children
“should not be deterred or intimated by the constant threat of personal liability” for
exercising their professional judgment), disapproved on other grounds by Gilbert,
264 Ga. at 750.
We are sympathetic to Appellants’ concerns about our case law conferring “de
facto absolute immunity for school employees.” McDowell, 285 Ga. at 594 (citation
10
omitted). And if the facts here were different, we might rule differently.3 But Section
6.5 does not impose “simple, absolute[,] and definite” mandatory responsibilities of
the sort at issue in McDowell. There, a school policy mandated that school personnel
were not to release a student without consulting the student’s information card to
determine whether the person picking up the student was authorized to do so; the
school employee did not look at the information card before releasing the plaintiff’s
child. Id. at 592. No discretion or judgment was involved at all in McDowell, and
therefore the school employee was not entitled to official immunity.
Accordingly, we affirm the grant of summary judgment to Caldwell.
Judgment affirmed. Phipps, P. J., and Dillard, J., concur.
3
Caldwell suggests that a total failure to comply with Section 6.5 would
nevertheless be a discretionary act entitled to official immunity. We view such an
argument through skeptical eyes, because a total failure to perform an act may involve
no exercise of discretion or deliberation whatsoever, and it is not clear that such a
failure would be considered a discretionary act covered by official immunity. But
given our resolution of this appeal, it is not necessary to decide this question.
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ON MOTION FOR RECONSIDERATION
Appellants have moved for reconsideration, arguing that we overlooked
material evidence that the principal explained to teachers that Section 6.5 required “a
classroom teacher’s proximity within the classroom and that students should not be
out of your eyesight,” and that Caldwell’s conduct following the fatal incident
supports a finding that she was aware she violated the policy. Regardless of whether
Caldwell violated the policy as explained to her, binding precedents of our Court are
clear that discretionary decisions related to supervision are entitled to official
immunity “even where specific school policies designed to help control and monitor
students have been violated.” Reece v. Turner, 284 Ga. App. 282, 286 (1) (643 SE2d
814) (2007) (citing cases; punctuation omitted). And, as our opinion explains, the
evidence does show that Caldwell exercised her discretion related to supervision.
Motion for reconsideration denied.