                   In the Missouri Court of Appeals
                           Eastern District
PHIL MCCOY,                                               ) No. ED103719
                                                          )
        Relator,                                          )
                                                          ) Writ of Prohibition
v.                                                        )
                                                          )
THE HONORABLE SANDY MARTINEZ,                             )
JUDGE, CIRCUIT COURT, ST. FRANCOIS                        )
COUNTY, DIVISION I,                                       )
                                                          )
        Respondent.                                       ) FILED: January 19, 2016

                                                I. Introduction

        Phil McCoy ("Relator") filed a Petition for Writ of Prohibition with this Court, seeking to

prohibit the enforcement of Circuit Judge Sandy Martinez's ("Respondent's") Orders of April 9,

2015, and November 9, 2015,1 in the action of Debrah Blumenberg, a Mother and Next Friend of

Shelby Blumenberg, a Minor v. Richwoods R-VII School District and Phil McCoy, Circuit Court

of St. Francois County, Missouri, Cause No. 12WA-C00472-02 ("Lawsuit"), denying Phil

McCoy's Motion to Dismiss and Motion to Reconsider the Motion to Dismiss. Relator contends

the trial court erroneously failed to dismiss both counts of negligence and negligent supervision

against him based upon the official immunity doctrine. This Court previously issued an Order

directing Respondent to file its answer and suggestions in opposition to the petition in

prohibition. After receiving the same from Respondent, we hereby issue a permanent writ of

1
 Respondent's Order indicates it was actually entered on July 25, 2015; however, the order was not recorded until
November 9, 2015.
prohibition barring Respondent from taking further action other than vacating its Orders dated

April 9, 2015, and November 9, 2015, and dismissing Relator with prejudice.

                                   II. Procedural Background

       Debrah Blumenberg, mother and next friend of her minor child, Shelby Blumenberg,

(collectively, "Plaintiffs") filed a claim for personal injuries sustained on January 22, 2010, by

Shelby, a seventh grader, when she slipped and fell into a lunch table during her physical

education class at Richwoods R-VII School District ("Defendant Richwoods"). The claims were

for negligence and negligent supervision against Defendant Richwoods, a public school district

in Washington County, Missouri, as well as against Relator, who was assigned to teach and

supervise the students during that physical education class. Plaintiffs allege the physical

education class "was conducted, directed, taught and supervised in accordance with school

policy and curriculum" by Relator. As against Relator, Plaintiffs allege he failed to exercise the

care that an ordinary careful and prudent person would use under the same or similar

circumstances in the performance of his duties toward Shelby, and was thereby negligent.

Plaintiffs allege Relator was negligent in that he failed to remove the metal tables from the

gymnasium floor; he instructed students to perform a physical exercise in close proximity to the

metal tables; he instructed students to run toward the metal tables and stop abruptly; and he did

not take proper precautions to ensure that students would not be injured by the metal tables.

Plaintiffs allege that, as a direct and proximate result of the negligence, Shelby injured her right

knee and back.

       Relator filed a motion to dismiss all claims against him as barred by the doctrine of

official immunity, arguing in his memorandum in support thereof that Plaintiffs failed to cite any

statute or regulation that could establish the existence or breach of a duty. Responding, Plaintiffs



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argued that Relator was not a public official and therefore was not protected by the official

immunity doctrine; additionally, Plaintiffs allege they were not required to allege the existence

and breach of statutory, regulatory, or departmentally-mandated duties. On April 9, 2015,

Respondent denied Relator's motion to dismiss. Relator filed a motion to reconsider his motion

to dismiss, which Respondent denied on November 9, 2015.

       Relator now seeks a writ of prohibition barring Respondent from taking any further

action other than vacating Respondent's orders dated April 9, 2015, and November 9, 2015, and

directing Respondent to enter an order dismissing the claims brought by Plaintiffs against

Relator with prejudice.

                                          III. Discussion

   A. Writ of Prohibition and Standard of Review

       Prohibition is a discretionary writ that may be issued to prevent an abuse of judicial

discretion, to avoid irreparable harm to a party, or to prevent the exercise of extra-jurisdictional

authority. State ex rel Henley v. Bickel, 285 S.W.3d 327, 330 (Mo. banc 2009). In the context

of a motion to dismiss for failure to state a cause of action, where a petition reveals that the

pleader has not stated and cannot state a cause of action of which the circuit court would have

authority to act, then prohibition is proper. State ex rel. Elec. Co. v. Dolan, 256 S.W.3d 77, 81

(Mo. banc 2008). After a trial court's denial of a motion to dismiss a plaintiff's petition, and

where it appears on the face of the pleadings that the defendant is immune from suit as a matter

of law, prohibition is an appropriate remedy. State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443,

444 (Mo. banc 1986). Although writs of prohibition have been discussed traditionally in

jurisdictional terms, the Missouri Supreme Court made clear that the use of a writ in a motion to

dismiss context does not depend upon jurisdictional analysis. Bickel, 285 S.W.3d at 330. "This



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Court has repeatedly held that 'prohibition may be appropriate to prevent unnecessary,

inconvenient, and expensive litigation.'" Id., quoting State ex rel. Union Planters Bank, N.A. v.

Kendrick, 142 S.W.3d 729, 735 (Mo. banc 2004). If a party cannot state facts sufficient to

justify court action or relief, it is fundamentally unjust to force another to suffer the considerable

expense and inconvenience of litigation. Id. It is also a waste of judicial resources and taxpayer

money. Id.

       On a motion to dismiss for failure to state a cause of action, the court reviews the

allegations of the petition to determine whether the facts pled therein are sufficient as a matter of

law. Dolan, 256 S.W.3d at 82. A motion to dismiss for failure to state a cause of action:

       assumes that all of plaintiff's averments are true, and liberally grants to plaintiff
       all reasonable inferences therefrom. No attempt is made to weigh any facts
       alleged as to whether they are credible or persuasive. Instead, the petition is
       reviewed in an almost academic manner, to determine if the facts alleged meet the
       elements of a recognized cause of action, or of a cause that might be adopted in
       that case.

Id., quoting Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 909 (Mo. banc 2002).

The petition will "withstand the motion if it invokes substantive principles of law entitling

plaintiff to relief and alleges ultimate facts informing defendant of that which plaintiff will

attempt to establish at trial." Dolan, 256 S.W.3d at 82, quoting Grewell v. State Farm Mut. Auto

Ins. Co., 102 S.W.3d 33, 36 (Mo. banc 2003).

   B. Official Immunity is Established on the Face of the Petition

       In response to the Relator's petition for writ of prohibition based on the trial court's denial

of Relator's motion to dismiss, Plaintiffs, on behalf of Respondent, contend that the trial court

properly denied Relator's motion to dismiss because Relator could not establish official

immunity based on the pleadings. Plaintiffs argue Relator is not immune from lawsuits because




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teachers are not public officials and Plaintiffs had no requirement to plead a ministerial duty

here. We disagree.

       Official immunity is an affirmative defense that protects public officials from liability for

alleged acts of ordinary negligence committed during the course of their official duties for the

performance of discretionary acts. Davis v. Lambert-St. Louis Intern. Airport, 193 S.W.3d 760,

763 (Mo. banc 2006). Dismissal based on an affirmative defense may be appropriate if the

petition clearly establishes "on its face and without exception" that the claim is barred.

Richardson v. City of St. Louis, 293 S.W.3d 133, 139 (Mo. App. E.D. 2009) (quoting Int'l

Plastics Dev., Inc. v. Monsanto Co., 433 S.W.2d 291, 294 (Mo. banc 1968)). "When

determining the sufficiency of the allegations setting forth a defendant's affirmative defense, we

may look to the responsive pleadings as a whole." Woods v. Ware, 471 S.W.3d 385, 391 (Mo.

App. W.D. 2015).

       Our first step in analyzing whether Relator is protected by official immunity is

determining whether he is a public official. In Southers v. City of Farmington, the Missouri

Supreme Court declared that official immunity protects all public employees "from liability for

alleged acts of negligence committed during the course of their official duties for the

performance of discretionary acts." 263 S.W.3d 603, 610 (Mo. banc 2008). Moreover, relying

on the Supreme Court's clarification of the doctrine of official immunity in Southers, this Court

found that teachers are public employees who are protected from liability for negligent acts

committed during the course of their official duties for the performance of discretionary acts.

Boever v. Special Sch. Dist. of St. Louis County, 296 S.W.3d 487, 492 (Mo. App. E.D. 2009);

see also Woods, 471 S.W.3d at 392 n.4; Nguyen, 353 S.W.3d at 731; Nine v. Wentzville R-IV

Sch. Dist., No. 4:11-CV-353 CEJ, 2011 WL 2564767 (E.D. Mo. June 28, 2011) (teachers are



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public officials entitled to official immunity). The cases upon which Plaintiffs rely to support

their argument that Relator is not a public officer entitled to assert the defense of official

immunity, including Jackson v. Roberts, 774 S.W.2d 860, 861 (Mo. App. E.D. 1989), and

Lehmen v. Wansing, 624 S.W.2d 1, 2-3 (Mo. 1981), were decided before the Missouri Supreme

Court issued its decision in Southers. To the extent that the cases cited by Plaintiffs stand for the

proposition that teachers are not public officials under the doctrine of official immunity, we find

this is not an accurate statement of the law. Plaintiffs' first amended petition alleges that Relator

was at all relevant times employed by the public school district as a teacher and supervisor; thus,

the allegations on their face meet the first prong of our analysis.

       Now knowing that Relator fits in the category of a public official entitled to official

immunity, we next assess the acts alleged in the petition, and whether they are discretionary or

ministerial. Whether an act is discretionary or ministerial depends on the "degree or reason and

judgment required" to perform the act. Davis, 193 S.W.3d at 763, quoting Kanagawa v. State By

and Through Freeman, 685 S.W.2d 831, 836 (Mo. banc 1985) (overruled on other grounds by

Alexander v. State, 756 S.W.2d 539 (Mo. banc 1988)). An act is discretionary when it requires

"the exercise of reason in the adaption of means to an end, and discretion in determining how or

whether an act should be done or a course pursued." Id., quoting Jackson v. Wilson, 581 S.W.2d

39, 43 (Mo. App. 1979). Conversely, a ministerial duty is

       of a clerical nature which a public officer is required to perform upon a given
       state of facts, in a prescribed manner, in obedience to the mandate of legal
       authority, without regard to his own judgment or opinion concerning the propriety
       of the act to be performed.

Rustici v. Weidemeyer, 673 S.W.2d 762, 769 (Mo. banc 1984). In order to prescribe a

ministerial duty, the statute or regulation must be mandatory and not merely directory. Boever,

296 S.W.3d at 492. To discern whether an act is ministerial or discretionary, the court looks to

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three factors: (1) the nature of the duties; (2) how much policymaking or professional expertise

and judgment the act involves; and (3) the consequences of withholding immunity. Kanagawa,

685 S.W.2d at 836. Absent allegations averring the existence of a statutory or departmentally-

mandated duty and a breach of that duty, a petition fails "to state a claim that is not barred by the

doctrine of official immunity as a matter of law." Boever, 296 S.W.3d at 492, quoting State ex

rel. Twiehaus v. Adolf, 706 S.W.2d 443, 446 (Mo. banc 1986).

          In Boever v. Special School District of St. Louis County, the parents of a child who

choked to death in school sued the school district and three of its employees (the child's teacher

and two aides). 296 S.W.3d at 490. After the trial court sustained motions to dismiss the

employee suit on the ground of official immunity, this Court decided that, where the plaintiffs

failed to allege a breach of a statutory or regulatory duty, and therefore did not allege facts

establishing that an exception to the official immunity doctrine applied, they did not state a claim

for breach of a ministerial duty falling within the exception to the official immunity doctrine. Id.

at 492.

          Although the Western District Court of Appeals disagreed with Boever in Nguyen v.

Grain Valley R-5 School Distrct, 353 S.W.3d 725, 731 (Mo. App. W.D. 2011) (stating that

Boever inaccurately required the pleading of a ministerial duty imposed by statute or regulation

to state a claim against a public employee that is not barred by official immunity), we distinguish

its analysis. In Nguyen, the court concluded that the plaintiffs had properly pled a ministerial

duty in asserting that the teachers had failed to follow the proper safety and injury guidelines,

policies, rules and/or regulations, including those mandated by Missouri statutes, the Missouri

Department of Education, the Missouri Department of Health and Senior Services, the Missouri

Board of Nursing, and the Grain Valley R-5 School District. Id. at 732. Further, the appellate



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court found the trial court erred in entering summary judgment in favor of teachers who,

although they had asserted they had discretion to dictate the activities assigned to the students,

failed to plead that their actions were discretionary in the treatment of head injuries sustained by

students. Id. at 733. The Nguyen teachers failed to demonstrate that they were entitled to

official immunity as a matter of law. Id.

       Here, however, Relator has asserted that his actions were discretionary by the very nature

of the first amended petition on its face. In Relator's motion to dismiss, he argues that he is

entitled to protection under official immunity because Plaintiffs' first amended petition fails to

cite any statute or regulation that could establish either the existence or breach of a duty, as well

as any departmentally-mandated duty.

       Our review of the first amended petition demonstrates that, in alleging Relator's

negligence and negligent supervision in (a) Relator's failure to remove the metal tables from the

gymnasium floor; (b) instructing students to perform a physical exercise in close proximity to the

metal tables; (c) instructing students to run toward the metal tables and stop abruptly; and (d)

failing to take proper precautions to ensure that students would not be injured by the metal

tables, Plaintiffs allege no "ministerial" duty imposed upon Relator, nor the required breach of

the same. Plaintiffs do not allege that Relator "failed to comply with school policies" or

regulations concerning safety or gym class, thus alleging breach of ministerial duties. Instead,

Plaintiffs' first amended petition alleges Relator actually followed school policy when he

       directed the members of the seventh grade physical education class, including
       Shelby Blumenberg, in accordance with school policy and curriculum, to engage
       in an exercise on the gymnasium floor in which they were required to run towards
       and in close proximity to the tables to pick up basketballs and stop quickly near
       the tables.




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(emphasis added). Plaintiffs further argue in response to Relator's motion to dismiss that Relator

is essentially a gym teacher who is "just following the rules, engaging in ministerial conduct and

having students play sports on a gym floor with tables." There again, Plaintiffs fail to mention

the essential element that the "ministerial conduct" was breached. Although our analysis need

not go further, viewing the first amended petition on its face, we would be remiss without stating

that, even in the most detailed "school policy" concerning safety or gym class, we cannot

imagine Relator's acts or omissions in supervising students during an exercise activity were

"ministerial" rather than discretionary in nature, requiring the exercise of the teacher's judgment.

As previous court decisions have stated, although in the context of school board officials:

       At first blush it might appear that the duty to keep the school grounds 'safe' is
       ministerial in character, but it is apparent on closer analysis that a great many
       circumstances may need to be considered in deciding what action is necessary to
       do so, and such decisions involve the exercise of judgment or discretion rather
       than the mere performance of a prescribed task.

Jackson v. Wilson, 581 S.W.2d 39, 44 (Mo. App. W.D. 1979) (quoting Meyer v. Carman, 73

N.W.2d 514, 515 (Wis. 1955)). To the same extent, this statement applies to teachers and their

discretionary duty to keep not just the school grounds safe, but the students safe as well.

Whereas the Nguyen plaintiffs alleged a violation of ministerial duties in their petition, Plaintiffs

here did not. Thus, Relator should have succeeded in arguing that the petition must be dismissed

for failure to state a claim which is barred by the doctrine of official immunity as a matter of law.

       Accordingly, we hereby order a permanent Writ of Prohibition barring Respondent from

taking further action other than vacating Respondent's orders dated April 9, 2015, and November

9, 2015, and directing Respondent to dismiss the claims brought by Plaintiffs against Relator

with prejudice.




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                                        IV. Conclusion

       This Order in Prohibition is absolute and the trial court is directed to vacate Respondent's

orders dated April 9, 2015, and November 9, 2015, and dismiss the claims brought by Plaintiffs

against Relator with prejudice.




                                             ___________________________________
                                             ROY L. RICHTER, Presiding Judge

Lisa S. VanAmburg, C.J., concurs
Robert M. Clayton III, concurs.




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