                                  WHOLE COURT

                   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 16, 2014




In the Court of Appeals of Georgia
 A14A0448. BUTLER v. DOE et al.

      DILLARD, Judge.

      Jane Doe, a minor, by and through her best friend and legal guardian, Mary

Roe, filed suit against Kevin Butler, a teacher at Cass Middle School (the “School”),

for personal injuries that Doe suffered when she was allegedly sexually assaulted by

another student at the School as a result of Butler’s alleged failure to properly

supervise the students during an after-school activity.1 Butler moved for summary

judgment on the ground that his supervision of the students in question was a

discretionary function that entitled him to official immunity. The trial court denied

Butler’s motion, holding that his alleged failure to supervise the students amounted

      1
       Doe’s complaint included claims against the Bartow County School District,
the School’s principal, and another School employee. The trial court granted summary
judgment as to those defendants and Doe does not challenge that ruling.
to a ministerial function to which official immunity does not apply. Butler argues on

appeal that the trial court erred in concluding that his acts were ministerial rather than

discretionary. We agree.

      Viewed in the light most favorable to Doe,2 the record shows that in 2010,

Butler was a teacher at the School and also served as a teacher advisor for the color

guard. On the afternoon in question, the School had two after-school functions in the

gymnasium—a color-guard presentation followed by a choral concert. Doe was

participating in both functions.

      Butler agreed to supervise and facilitate the color-guard presentation. To that

end, he met the four participating color-guard students, including Doe, at a designated

time and gathered them in the chorus room, a room directly adjacent to the

gymnasium. The group left their personal belongings in the chorus room and Butler

then escorted the students to a mobile classroom to retrieve their equipment. Butler

thereafter watched the students perform their color-guard presentation and then

helped them return their equipment to the mobile classroom.

      2
        See Martin v. Herrington Mill, LP, 316 Ga. App. 696, 697 (730 SE2d 164)
(2012) (“[A] de novo standard of review applies to an appeal from a grant or denial
of summary judgment, and we view the evidence, and all reasonable conclusions and
inferences drawn from it, in the light most favorable to the nonmovant.” (punctuation
omitted)).

                                            2
      Afterwards, the color-guard group returned to the chorus room to gather their

personal belongings. Butler was aware that Doe was performing in the choral concert

immediately following the color-guard presentation and, shortly after the group

entered the chorus room, Doe left and went to the restroom to change her clothing.

There is a factual dispute as to whether the remaining three students stayed in the

chorus room and/or whether Butler inquired as to whether those students intended to

leave the School or attend the concert.3 Regardless, Butler, who was not responsible

for attending or supervising the subsequent choral concert, left the chorus room and

entered the adjoining gymnasium. There, he joined a crowd of 150 to 200 teachers,

students, and parents—including Doe’s mother—to watch the first 15 to 20 minutes

of the concert before he left the School.


      3
         Butler testified definitively that he ascertained that the three remaining
students planned to attend the concert. Doe asserts in her affidavit, however, that
Butler “did not inquire as to whether any of the other students were being picked up
or remaining at the school for the concert.” We note that Doe is limited to swearing
only to those facts that are within her own personal knowledge; consequently, she can
aver only that she did not hear any such inquiry by Butler. See OCGA § 9-11-56 (e)
(“Supporting and opposing affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in the evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated therein.”) (emphasis
supplied). But even if we assume that Butler did not attempt to ascertain the students’
plans, this in no way impacts our ultimate conclusion that his failure to do so was a
discretionary act.

                                            3
      Doe alleges that she reentered the chorus room after returning from the

restroom and, although the other three color-guard students were there when she

initially entered, two eventually left and she was sexually assaulted by the third. She

thereafter sued Butler, asserting that his act in leaving the students unsupervised in

the chorus room following the color-guard performance resulted in her sexual assault.

The trial court denied Butler summary judgment after concluding that he was not

entitled to official immunity because he had “an absolute ministerial duty to protect”

the color-guard students remaining in the chorus room and his total failure to

supervise them constituted a breach of that ministerial duty. This appeal follows.

      Georgia law is well established that the “monitoring, supervising, and

controlling the activities of students is a discretionary action protected by the

doctrine of official immunity.”4 Contrary to the holding of the trial court, this is true

      4
        Perkins v. Morgan Cnty. Sch. Dist., 222 Ga. App. 831, 835 (2) (476 SE2d
592) (1996) (emphasis supplied); accord Leake v. Murphy, 274 Ga. App. 219, 224 (2)
(617 SE2d 575) (2005), overruled on other grounds by Murphy v. Bajjani, 282 Ga.
197 (647 SE2d 54) (2007); see also Reece v. Turner, 284 Ga. App. 282, 285 (1) (643
SE2d 814) (2007) (“The determination of 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 to be made on a case-by-case basis.” (punctuation
omitted)); 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.”)

                                           4
even if the allegations involve a teacher’s total failure to supervise the students under

his or her care.5 Indeed, the complete failure to perform a discretionary act is “the

same as the negligent performance of that act for the purposes of determining whether

such action was discretionary or ministerial.”6

      There is simply no way to construe the evidence so as to conclude that Butler’s

alleged failure to supervise was anything other than a discretionary act. Indeed, as is

readily apparent from the facts set forth supra, Butler was responsible for monitoring

and ensuring the safety of the students while he shuttled them between numerous

rooms in the school, aided them in getting their equipment and supplies, facilitated

a successful color-guard presentation, and transitioned them from one after-school

activity to another. Suffice it to say, the assessment of whether direct supervision and,




      5
         See Aliffi v. Liberty Cnty. School Dist., 259 Ga. App. 713, 715 (578 SE2d
146) (2003) (holding teacher was immune from suit alleging that she violated school
policy by sending a child, totally unsupervised, to the storage garage); Chamlee v.
Henry Cnty. Bd. of Educ., 239 Ga. App. 183, 184 (1) (521 SE2d 78) (1999)
(concluding that teacher’s inadequate supervision of students during extracurricular
activity was discretionary act entitling teacher to official immunity); Kelly v. Lewis,
221 Ga. App. 506, 508 (471 S.E.2d 583) (1996) (granting official immunity to teacher
who failed to be present at the school’s front door to ensure safe arrival of students).
      6
          Kelly, 221 Ga. App. at 508.

                                           5
if so, what degree of oversight was required to accomplish the foregoing tasks

necessarily involved Butler’s personal and professional judgment.

      The dissent, like the trial court, nonetheless relies upon a purported School

policy that Butler was required to ensure his students’ attendance at after-school

functions in support of its position that a genuine issue of material fact exists as to

whether his failure to make certain that Doe reported to the choral concert constituted

the breach of a ministerial duty.7 This argument fails for two reasons. First, this

contention fails because the undisputed record shows that any such duty, to the extent

one existed, fell upon the chorus instructor, not Butler. But in any case, even if we

accept the dissent’s strained reading of the record and assume that Butler violated an

established school policy, “[s]upervision of students is considered discretionary even

where specific school policies designed to help control and monitor students have



      7
         There is a conflict in the record as to whether attendance at after-school
functions was mandatory. The School principal testified that students were not
required to attend after-school functions, although Doe asserted that her attendance
at the choral concert was indeed mandatory. The undisputed record, however, makes
clear that the school had no written policies directing how teachers were to supervise
their students at after-school functions. Instead, such decisions were left to the “good
professional judgment” of the teachers. And to the extent the trial court and dissent
rely on Butler’s written job description requiring “prompt and regular attendance,”
the argument still fails for the reasons stated infra.

                                           6
been violated.”8 It follows, then, that Butler is protected by the doctrine of official

immunity and is entitled to summary judgment.

      Judgment reversed. Andrews, P. J., Ellington, P. J., Doyle, P. J., McMillian,

J., concur. Phipps, C. J., and Miller, J. dissent.




      8
        Chamlee., 239 Ga. App. at 184 (1); see also Perkins, 222 Ga. App. at 836 (2)
(holding secretary’s failure to enforce school’s policy regarding early dismissal was
discretionary act); Wright, 220 Ga. App. at 93-94 (holding teachers’ failure to enforce
school policy governing class attendance was discretionary act).

                                           7
 A14A0448. BUTLER v. DOE.



      MILLER, Judge, dissenting.

      I dissent from the majority’s opinion because Kevin Butler has failed to

establish that there are no genuine issues of material fact.

      As the party moving for summary judgment, Butler bore the burden of

demonstrating that he was entitled to official immunity by showing that the specific

acts he performed were discretionary. See Howell v. Willis, 317 Ga. App. 199, 203

(729 SE2d 643) (2012). Consequently, although the question of whether a

governmental employee is entitled to official immunity is a question of law that must

ultimately be decided by the trial court, where the relevant facts are in dispute, the

trial court cannot resolve the factual issues on a motion for summary judgment.
Nichols v. Prather, 286 Ga. App. 889, 896 (4) (650 SE2d 380) (2007). Instead, a jury

must resolve the conflicting facts. Id.

      Here, Doe alleged that Butler was negligent for leaving her and another student

alone in the locked chorus room. In support of her claim that Butler was required to

ensure her attendance at the concert, Doe submitted Butler’s job description

indicating that he had a duty to maintain prompt and regular attendance. Although

Butler presented evidence that attendance taking at after-school events was not

mandatory, Doe averred that her attendance was mandatory and that attendance was

taken. Moreover, Butler deposed that, as a teacher advisor for the color guard, he had

a responsibility to make certain that the participating students either had a ride home

following the group’s performance or stayed for the concert. Doe presented evidence

that Butler did not ask the students about their plans. Instead, Butler left the students

alone in the locked chorus room and went to the concert, whereupon Doe was

sexually assaulted by another student.

      The evidence does not show as a matter of law that the acts of ensuring that the

students had a ride home or were going to attend the concert required Butler to

exercise personal judgment, examine facts, reach reasoned conclusions, or act in a

way not specifically directed. Instead, making sure that students are either picked up


                                           2
following an after-school activity, or attend a subsequent after-school activity, such

as the choral concert in this case, is a simple, absolute, and definite action. See

McDowell v. Smith, 285 Ga. 592, 593-594 (678 SE2d 922) (2009). In light of this

evidence, there is a question of fact regarding Butler’s duties following the color

guard performance that precludes the grant of summary judgment. See Dalton v. City

of Marietta, 280 Ga. App. 202, 203 (633 SE2d 552) (2006) (“Even slight evidence

will be sufficient to satisfy the plaintiff’s burden of production of some evidence on

a motion for summary judgment; such evidence may include favorable inferences

drawn by the court from the evidence presented.”) (citation and punctuation omitted).

      Teachers and school employees have an important responsibility to protect our

children, and it is unwise to advance the “de facto absolute immunity for school

employees” that has developed in our case law where questions of fact remain. See

McDowell, supra, 285 Ga. at 594 (noting only one recent case in which this Court has

held that a school employee’s actions were ministerial). Providing such absolute

immunity to school employees

      abrogates the constitutional right of citizens to seek redress for injuries
      inflicted by the ministerial acts of school employees, especially upon
      young children who are not capable of caring for themselves or
      exercising judgment. If Georgia school employees are to be clothed with
      absolute immunity under any and all circumstances, that is a decision to


                                          3
      be made by the Georgia General Assembly; it is not the function of this,
      or any, court.

Smith v. McDowell, 292 Ga. App. 731, 737 (666 SE2d 94) (2008). Since Butler has

not shown that the undisputed evidence established that his actions were

discretionary, he has failed to establish that he was entitled to official immunity.

Accordingly, I would affirm the trial court’s denial of Butler’s motion for summary

judgment.

      I am authorized to state that Chief Judge Phipps joins in this dissent.




                                         4
