                              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.

                                             9
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.

                                          11
                    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.
