                              THIRD DIVISION
                             ELLINGTON, P. J.,
                        DILLARD and MCFADDEN, 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/


                                                                       July 7, 2015




In the Court of Appeals of Georgia
 A15A0711. TUGGLE V. ROSE et al.

      MCFADDEN, Judge.

      Harriet Tuggle, a teacher at a Fulton County middle school, appeals the denial

of her motion for summary judgment on official immunity grounds in this assault-

and-battery action brought by a former student, P. R., and his parents. Tuggle argues

that because the plaintiffs have presented insufficient evidence to rebut her direct

evidence of a lack of malice, she was immune from suit and entitled to summary

judgment. We agree and therefore reverse.

      1. Factual background.

             Summary judgment is appropriate when no genuine issues of
      material fact remain and the moving party is entitled to judgment as a
      matter of law. On appeal, we review a trial court’s grant of summary
      judgment de novo, construing the evidence and all inferences drawn
      from it in a light favorable to the nonmovant.


Griswold v. Collins, 318 Ga. App. 556 (734 SE2d 425) (2012) (citation omitted).

Viewed most favorably to the plaintiffs, the evidence shows that, in 2012, P. R. was

a student in a seventh-grade language arts class taught by Tuggle. In February 2012,

P. R. asked Tuggle a question about a project he was working on. Tuggle answered

him and he returned to his seat. P. R. approached Tuggle again, while she was

checking work at another student’s desk, because P. R. felt she had not answered his

question. Tuggle became angry and said, “Oh, my God, child. Just follow me.” She

grabbed P. R. and put him in a “headlock”: she extended her arm all the way around

his neck, resting her hand on the back of his neck, so that his head was under her arm.

Tuggle walked P. R. around the room as she continued to go desk by desk, checking

the work of other students. P. R.’s head was in front of Tuggle’s body, his body was

behind, and he was forced to hunch over as she walked him through the rows of

desks. Initially, Tuggle’s grip was pretty loose, but it became tighter as they walked

between the rows of desks, until it became “pretty tight.” It did not become so tight

that Tuggle pulled P. R. over.




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      When she grabbed him, Tuggle handed P. R. his clipboard with his paper and

told him to work. P. R. tried to complete his homework for the next day, but he could

only hold the clipboard in front of him with one hand and read the assignment.

Accoding to P. R., Tuggle let him go when she was “finished” and he walked back

to his seat. He did not have any way of knowing how long she held him because he

did not look at a clock, but it “felt like forever.” Afterwards, P. R.’s neck felt “a bit

weird.”

      Tuggle described the interaction as her putting her arm around P. R. because

she did not want him to leave her presence until she could answer his question. She

testified that she held P. R. less than 30 seconds. She denied intending to embarrass

P. R. or to hurt him.

      Tuggle moved for summary judgment on the ground that she was entitled to

official immunity. The trial court conducted a hearing, at which Tuggle re-asserted

an objection she had made in her reply to the plaintiff’s brief in opposition to

summary judgment. Specifically, Tuggle objected on hearsay grounds to the

plaintiffs’ reliance on summaries of statements from P. R.’s classmates that were

included in an investigative report prepared by a school district investigator. At the

hearing, she also objected to the consideration of P. R.’s affidavit testimony that the

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incident lasted 20 minutes, arguing that the affidavit testimony contradicted his

deposition testimony on the issue. The trial court denied the motion for summary

judgment but did not specifically address these objections.

      2. Evidentiary objections.

      Tuggle re-asserts the evidentiary challenges she raised in the trial court. The

plaintiffs rely on that evidence to show the duration of the headlock, which, they

claim, is circumstantial evidence of Tuggle’s malice. We agree with Tuggle that

neither piece of evidence is admissible to show the duration of the encounter.

      In his affidavit, P. R. testified that Tuggle restrained him for approximately 20

minutes. In his deposition, he testified that he did not have any way of knowing how

long she held him because he did not look at a clock, but it “felt like forever.” “It is

well established that on summary judgment a party’s self-contradictory testimony, if

unexplained, must be construed against the party-witness, even when the

party-witness is the respondent rather than the movant. Prophecy Corp. v. Charles

Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).” Walker v. Brannan, 243

Ga. App. 235, 237 (533 SE2d 129) (2000). P. R.’s affidavit testimony that the

headlock lasted 20 minutes contradicts his deposition testimony that he did not have

any way of knowing how long Tuggle held him, and he has not offered any

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reasonable explanation for the contradiction. See Prophecy, supra, 256 Ga. at 30 (2).

Therefore, we must construe his testimony against him and reject his testimony that

the headlock lasted 20 minutes.

      The plaintiffs rely on the statement of another student to support the contention

that Tuggle restrained P. R. for 20 minutes. The school district investigator prepared

a report about the incident, which included summaries of statements made by P. R.’s

classmates. The report was attached to the investigator’s affidavit, which Tuggle filed

with her motion for summary judgment. In the summary of the statement of one of the

students, the investigator reported that the student described Tuggle restraining P. R.

for about ten minutes. (Although the plaintiffs refer generally to the students’

statements, only one of the summaries of the classmates’ statements includes any

information about the duration of the headlock.)

      The plaintiffs argue that the student’s statement is admissible under OCGA §

24-8-803 (6), the business records exception to the hearsay rule. But hearsay within

hearsay is admissible only if “each part of the combined statements conforms with an

exception to the hearsay rule.” OCGA § 24-8-805. Assuming without deciding that

the investigator’s report attached to her affidavit was admissible under the business

records exception, that exception only overcame one layer of hearsay. See In the

                                          5
Interest of D. E., 313 Ga. App. 414, 415 (721 SE2d 627) (2011). The plaintiffs do not

cite any other exception to overcome the second layer of hearsay, the summary in the

report of the student’s statement to the investigator. Thus, the student’s statement is

not admissible.

       3. Official immunity.

       The parties agree that Tuggle is entitled to official immunity unless she acted

with

       actual malice or with intent to cause injury. 1983 Ga. Const., Art. I, Sec.
       II, Par. IX (d). “Actual malice,” as that term is used in the constitutional
       provision, denotes “express malice,” i.e., “a deliberate intention to do
       wrong,” and does not include “implied malice,” i.e., the reckless
       disregard for the rights or safety of others. A “deliberate intention to do
       wrong” such as to constitute the actual malice necessary to overcome
       official immunity must be the intent to cause the harm suffered by the
       plaintiffs.


Murphy v. Bajjani, 282 Ga. 197, 203 (4) (647 SE2d 54) (2007) (citation omitted). Our

Supreme Court has set a high bar for demonstrating actual malice so as to overcome

a defendant’s entitlement to official immunity. D. H. v. Clayton County Sch. Dist., 52

FSupp.3d 1261, 1297-1298 (III) (B) (6) (N.D. Ga. 2014).




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      Relying on Griswold v. Collins, supra, 318 Ga. App. 556, the plaintiffs argue

that Tuggle’s holding P. R. in a headlock for a substantial period of time, in front of

other students, while knowing that her actions violated Fulton County policies,

supports an inference that she had an intent to harm P. R. and they point to what they

characterize as her later denials and equivocations as evidence that she knows she

committed a wrongful act.

      First, we observe that the plaintiffs have presented no evidence that Tuggle’s

actions violated Fulton County policies. Although they reference a Fulton County

policy against corporal punishment, they concede that Tuggle’s motivation was not

disciplinary. Nor have they cited to any record evidence of denials and equivocations.

To the extent that they argue that Tuggle “refus[ed] to acknowledge any incident at

all until pressed by her principal,” and that this is evidence of her intent, we disagree.

Tuggle explained at her deposition that when questioned by her principal and

assistant principal a couple of weeks after the incident, she did not recall it. She

thought about it and later that day told them about touching P. R., “the only incident

[she] could come up with.” In sum, the only evidence of malice the plaintiffs have

presented is that Tuggle held P. R. in a headlock for a period of time that “felt like



                                            7
forever,” in front of other students. We do not believe that this evidence creates a jury

question on the issue of malice or intent to harm.

      In Griswold, we found that questions of fact as to a teacher’s entitlement to

official immunity precluded her from summary judgment on a second-grade student’s

assault and battery claims. 318 Ga. App. at 556. We held that the evidence, viewed

most favorably to the plaintiff, showed that as the student was returning to her seat,

the teacher summoned her and struck her bare leg with two rulers, leaving a red mark

or bruise; that when the student approached the teacher with some schoolwork, the

teacher told the student that her answer to one of the problems was incorrect and then

grabbed the girl’s shirt collar and pulled it tight, choking her and leaving red marks

on her neck; and that the teacher made the student stand in a corner for a “time out”

after the girl began dancing in class, and at the end of the “time out,” the teacher

grabbed the girl’s shirt collar, twisted it, and pulled the girl forward, choking her,

snapping her necklace and leaving red marks on her neck. Id. at 557 (1). We

determined that “[w]hile a jury would not be compelled to accept [the student’s]

version of the events or to find that the nature of those actions reflected actual malice

or wilfulness on [the teacher’s] part, given the girl’s depiction of [the teacher’s]

behavior, a jury could find that she deliberately intended to do wrong or to injure the

                                           8
girl.” Id. at 559 (2) (a) (emphasis in original). In other words, we found that the very

nature of the acts as described by the plaintiff – the unprovoked choking and striking

with rulers of a second-grader, sufficient to leave visible injuries – was circumstantial

evidence of the teacher’s intent to deliberately hurt the student. We do not find that

the nature of the acts described by P. R. is circumstantial evidence of Tuggle’s malice

or intent to deliberately hurt him. According to P. R., Tuggle held him in a headlock

for a significant period of time, but her grip was initially “pretty loose,” although it

got tighter but not tight enough to pull him over; and Tuggle told P. R. to work on his

schoolwork while they walked around the room, indicating that she did not believe

she held him in a way that immobilized him; P. R. was even able to read the

assignment; P. R. was not injured, although his neck felt a “bit weird.”

      We find that this case is more akin to Butler v. McNeal, 252 Ga. App. 68 (555

SE2d 525) (2001), than to Griswold. In Butler, we concluded that the record lacked

evidence showing that the teacher acted with actual malice or that she intended to

injure the student, even though we accepted as true the student’s account that the

teacher purposefully pulled the student’s chair out from under him, causing the

student to fall to the ground. 252 Ga. App. at 68-70. See also Jordan v. Blackwell,

No. 5:06-cv-214, 2008 U.S. Dist. LEXIS 75046, at *33 (III) (B) (2) (M.D. Ga., Sept.

                                           9
29, 2008) (applying Georgia law to determine that school resource officer’s actions

of putting fighting student in a choke hold and walking her to principal’s office did

not give rise to a showing of actual malice, as no evidence suggested that he intended

the harm that may have resulted to the student). Here, as in Butler, the ambiguous

behavior within the classroom is not circumstantial evidence of malice or an intent

to deliberately harm that would contradict Tuggle’s direct evidence that she did not

act with malice or an intent to deliberately harm. Although the evidence may

demonstrate Tuggle’s “frustration, irritation, and possibly even anger[, that] is not

sufficient to penetrate official immunity.” Tittle v. Corso, 256 Ga. App. 859, 862 (1)

(569 SE2d 873) (2002) (citation and punctuation omitted). Accordingly, Tuggle is

entitled to summary judgment.

      Judgment reversed. Ellington, P. J., and Dillard, J., concur.




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