Rel: December 1, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 

300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other 

errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2023-2024

_________________________

SC-2023-0322

_________________________

Ex parte Dawn S. Smith

PETITION FOR WRIT OF MANDAMUS

(In re: Latisha Bolden, as mother and next friend of T.B., a 

minor

v.

Arnetta Moore et al.)

(Macon Circuit Court: CV-16-900099.80)

MENDHEIM, Justice.
SC-2023-0322

2

Dawn S. Smith petitions this Court for a writ of mandamus 

directing the Macon Circuit Court to vacate its March 24, 2023, order 

denying her motion that sought a summary judgment on the claims 

brought against her by Latisha Bolden, as mother and next friend of her 

son T.B., and to enter a summary judgment in her favor. Smith contends 

that she is entitled to immunity from Bolden's claims. We deny the 

petition.

I. Facts

At the time of the incidents that precipitated this litigation, T.B. 

was a second-grade student at Deborah Cannon Wolfe Elementary School 

("D.C. Wolfe") in the Macon County school system. Smith began working

in the Macon County school system at Tuskegee Public School as a fifthgrade teacher, and she taught there for 15 years. In February 2016, 

Smith transferred to D.C. Wolfe and started teaching second grade. T.B. 

was one of the students in Smith's class at D.C. Wolfe.

All parties agree that T.B. has exhibited behavior problems in 

school. Smith testified in her deposition that T.B. would "[d]isrupt[] the 

class as far as disrupting other students, getting out of his seat without 

permission, walking out of class," and other displays of misbehavior. 
SC-2023-0322

3

Bolden testified in her deposition that T.B. had started seeing counselors 

for his emotional issues in second grade and had continued to see 

counselors through the fourth grade. She related that T.B. had taken 

medication for attention-deficit/hyperactivity disorder and bipolar 

disorder. Bolden also testified that D.C. Wolfe Principal Dr. Carolyn 

Bradley ("Principal Bradley") had told Bolden that she allowed T.B. to 

come sit in Principal Bradley's office or to go across the hall from Smith's 

classroom to fourth-grade teacher Arnetta Moore's classroom "when 

[T.B.] had problems." In his deposition testimony, T.B. also testified that 

he was allowed to go to Principal Bradley's office to "cool down" if he was 

upset. T.B. likewise testified that he frequently went to Moore's 

classroom.

In the afternoon on March 17, 2016, shortly before the end of the 

school day, T.B. went into Moore's classroom. T.B. testified that he went 

to Moore's classroom to look for a birthday present for his grandmother.

According to T.B., he found a deck of playing cards that he thought would 

be a good present, and he asked Moore if he could take them. Moore told 

T.B. that he could not take the cards, but he took them anyway. T.B. 

testified that when he refused to give back the cards, Moore hit the back 
SC-2023-0322

4

of the hand that was holding the cards with a paddle and T.B. dropped 

the cards. T.B. then got angry and stormed out of Moore's classroom, 

slamming the door behind him. Smith testified that she heard the door 

slam and heard T.B. yell a curse word at Moore.1

Soon thereafter the school day ended. In his deposition, T.B. 

testified that the following events then took place. T.B. asked Smith to 

walk him to his bus because he did not want to get into trouble, and she 

agreed to do so. T.B. held Smith's hand as they walked down the school 

hallway toward the buses. As they did so, T.B. heard Moore close her 

classroom door as she was leaving her classroom. T.B. then broke loose 

from Smith's grip and started running toward Moore. When T.B. got to 

Moore, Moore hit T.B. in the face with her right hand and then shoved 

T.B. down across the hallway floor with her left hand. As T.B. was lying 

on the floor in pain, Moore walked over to him, stood over him, and then 

1T.B. denied yelling a curse word to Moore, but he did admit to 

calling her "fat." Smith testified that T.B. came back to her classroom 

with the playing cards and that she told him to take them back to Moore's 

classroom, which he did, but that T.B.'s second entry into Moore's 

classroom was when the door-slam and yelling occurred.
SC-2023-0322

5

hit him in the back of the head with her right hand. Smith then came 

over to help T.B. get up. 

Surveillance video of the D.C. Wolfe hallway in which T.B.'s 

incident with Moore occurred recorded the incident. In her deposition, 

Macon County Superintendent Jacqueline Brooks described what she 

saw on the video:

"A. When I watched the video, I saw a little boy in the 

hallway running toward a teacher, and I saw the teacher put 

her forearm out in a way that caused the student to go up in 

the air and come down on his head.

"Q. [Bolden's counsel:] Okay.

"A. And then I saw the teacher appear to just dismiss 

the child and leave him kind of in a -- on the floor."

In her deposition testimony, Smith's description of that incident -- based 

on what she said she saw live and after seeing the video -- was as follows:

"Q. [Bolden's counsel:] ... Walk me through what 

happened when you were taking T.B. to the bus.

"A. As I was walking [T.B.] down the hallway, [T.B.] 

heard Ms. Moore's door close, and then he snatched away from 

me real fast. So fast that I couldn't grab him.

"Q. Okay.

"A. And he was going full force towards Ms. Moore, and 

she was kind of startled, what was going on. And he kind of 
SC-2023-0322

6

bumped into her and slid on the floor. And she tried to help 

him up, and he didn't want her help, I guess. And so I tried to 

go back and help him.

"Q. Okay.

"A. And, you know, I told him to come on. I didn't want 

him to get ... left [by the bus]. I -- you know, told him 

everything was going to be okay. You're going to be okay. And 

he finally got up, and we walked to the bus -- down the hall --

"Q. All right.

"A. -- to the bus.

"Q. So is it your testimony that Ms. Moore did not hit 

[T.B.]?

"A. No.

"Q. All right. She did not hit him in the head?

"A. No.

"Q. Or throw him to the ground?

"A. No.

"Q. Okay. Have you seen the surveillance video?

"A. Barely.

"Q. Okay. And when you watched the surveillance video, 

that's what you see is [T.B.] bumping into Ms. Moore and then 

her trying to help him up?
SC-2023-0322

7

"A. Yes."

In the March 17, 2016, incident involving Moore and T.B., T.B. 

sustained injuries to his head, neck, and back, and his grandmother took 

him to the emergency room for treatment. Because of that incident, 

Moore was arrested and Superintendent Brooks initiated the process of 

terminating Moore's employment with the Macon County school system.

Moore never returned to D.C. Wolfe.

Bolden alleges that, sometime later in March 2016, T.B. was hurt 

as a result of an incident precipitated by Smith. T.B. testified that he had 

a history of getting into fights with one of his classmates in Smith's class, 

Y.,2 and that, when they fought, Y. was the one who always got hurt. In 

his deposition, T.B. testified about what happened later on a day in 

March 2016 after he had been in a fight with Y.

"Q. [Smith's counsel:] Ms. Smith never did anything to 

hurt you, right?

"A. You're talking about that day [March 17, 2016]?

"Q. No, any day when you were in second grade.

"A. Oh yes, she ha[s].

2T.B. testified that he did not remember Y.'s last name.
SC-2023-0322

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"Q. What day do you say that Ms. Smith did anything 

that you feel like hurt you?

"A. It was after that incident with me and Ms. Moore, 

she held my arm back and told another student to hit me.

"Q. What student was that?

"A. Y.

"Q. And do you remember what day that was?

"A. No, ma'am.

"Q. Do you remember what day of the week it was?

"A. No, ma'am.

"Q. Was it March?

"A. Yes, I -- yes, I think.

"Q. And were you in the classroom when this happened?

"A. Yes, ma'am.

"Q. But Y. did not touch you that day?

"A. You said what?

"Q. Y. did not touch you that day?

"A. When she told him to?
SC-2023-0322

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"Q. Right.

"A. He did.

"Q. Where did he touch you?

"A. He hit me in the face.

"....

"Q. [A]nd was that all that Y. did when you say your 

arms were behind your back?

"A. Yes, ma'am.

"Q. He hit his hand to your face?

"A. No, he punched me in the face.

"Q. Where?

"A. In this area (indicating).

"Q. The right side?

"A. Yes, sir.

"Q. Not at your eye, though, down on your cheek?

"A. Yes, it was in this area (indicating).

"Q. Is that the first time that you said that Y. had ever 

punched you?

"A. No.
SC-2023-0322

10

"Q. Had y'all been in a fight before that day?

"A. Yes, ma'am.

"Q. And in those fights with Y. before that day, you had 

hurt him, right?

"A. Yes, ma'am.

"Q. Had you ever punched him?

"A. Yes, ma'am.

"Q. Ms. Smith did not touch you on the day that you're 

saying that Y. punched you in the face, right?

"A. No, she didn't hit me.

"Q. I'm sorry?

"A. She didn't hit me, no.

"....

"Q. Did you have any medical treatment after Y. hit you?

"A. No ma'am.

"Q. Did you check out of school that day after that 

happened?

"A. No, ma'am.

"Q. You stayed through the rest of the day?
SC-2023-0322

11

"A. I don't remember.

"Q. And was that the last time you and Y. ever punched 

each other?

"A. Yes, ma'am.

"Q. And after that day where you say Y. punched you 

while y'all were in the classroom, you stayed in Ms. Smith's 

class after that, right?

"A. No, ma'am.

"Q. Whose class did you go to after that?

"A. I went to the [principal's] office.

"Q. I'm sorry. Did Ms. Smith stay your teacher after 

that?

"A. Yes, ma'am.

"Q. So for the rest of the school year, Ms. Smith was still 

your teacher after that day?

"A. Yes, ma'am.

"Q. And you had told [Principal] Bradley what you said 

happened, right?

"A. Yes, ma'am.

"Q. But you still stayed in Ms. Smith's classroom?
SC-2023-0322

12

"A. Yes, ma'am."

(Emphasis added.) T.B. further testified:

"Q. [Smith's counsel:] Do you ever remember meeting 

with the principal?

"A. About what?

"Q. About anything.

"[Bolden's counsel]: Related to Ms. Smith?

"[Smith's counsel]: Correct.

"A. No, but my mother has.

"Q. So when your mom met with the principal, you 

weren't in the room with your mom and the principal?

"A. No, ma'am.

"Q. Okay. Where were you when they were meeting?

"A. In the classroom.

"Q. Okay. So your mom told you that she met with the 

principal?

"A. Yes, ma'am.

"Q. Did your mom tell you what she talked to the 

principal about?

"A. Yes, ma'am.
SC-2023-0322

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"Q. What did she tell you?

"A. She talked to the principal about the incident when 

Ms. Smith held my arms back and told Y. to hit me.

"Q. Okay. And did she say that she talked to the 

principal about anything else?

"A. No, ma'am."

(Emphasis added.)

In her deposition, Bolden also provided testimony concerning the 

alleged incident in which Smith held T.B.'s arms behind his back, told Y. 

to hit T.B., and allowed Y. to punch T.B. in the face. Recounting a meeting 

Bolden had with Smith and Principal Bradley, Bolden stated:

"A. When I got there, I mean, [Smith] was saying '[T.B.] 

did this,' and [T.B.] was a bad student, and she didn't want 

[T.B.] in her classroom no more and she wanted him out of her 

classroom. So [Principal] Bradley was like, 'Well, we can't just 

have that.' 'Well, maybe we could have him sit in the 

classroom by himself,' and I said, 'No, you all are not about to 

isolate him like that from everybody else. How could you make 

him sit in one classroom because one teacher is not able to do 

what she's supposed to do?' Then [Smith] went on about how 

[T.B.] called her the B-word. And I said, 'Well, I don't know if 

he did, I don't know if he didn't.' I said, 'Well, you already lost 

his trust in you one time, and you already lied one time, so he 

don't trust you anymore. He don't believe anything you say.' 

Then [Smith] was like, 'Well, what about the time he called 

me a B-word?' I said, 'Well, maybe if you hadn't held his arms 

back to let a student hit him, then he wouldn't have called you 
SC-2023-0322

14

a B-word.' And she said, 'Well, if he was in his seat, then that 

wouldn't have happened to him.'

"....

"Q. [Smith's counsel:] Have you ever heard [T.B.] say 

where [Y.] hit him, besides his testimony today?

"A. [T.B.] told me that the little boy threw something 

and hit him with it, so [T.B.] hit him back. When [T.B.] hit 

him back, that's when Ms. Smith grabbed his arms and told 

[Y.] to come hit him back.

"Q. And did [T.B.] report to you where [Y.] hit him back?

"A. In the face.

"Q. In his face?

"A. Yes."

(Emphasis added.)

In her deposition, Smith denied that such an incident occurred:

"Q. [Bolden's counsel:] Okay. What, if anything, do you 

recall about that incident? And if you're going to say that it 

didn't happen at all, that's a perfectly fine response.

"A. Yes. I don't know anything about it.

"Q. Okay. You don't recall any incident where you 

instructed another student -- or you held back [T.B.] and 

allowed another student to hit him?

"A. No.
SC-2023-0322

15

"Q. Okay. You just categorically denied that it 

happened?

"A. It didn't happen."

On July 28, 2016, Bolden filed a complaint in the Macon Circuit 

Court, as mother and next friend of T.B., against Moore, Smith, the 

Macon County Board of Education -- Moore's and Smith's employer -- and 

Macon County. Bolden asserted claims of assault; battery; the tort of 

outrage; intentional, wanton, reckless and/or negligent infliction of 

emotional distress; and negligence and wantonness against all the 

defendants. In that original complaint, Bolden asserted her claims 

against Moore and Smith in both their official and their individual 

capacities. On October 6, 2016, Smith answered the complaint, and, 

among other defenses, Smith asserted that she was entitled to: (1) State 

immunity based on Ala. Const. 1901 (Off. Recomp.), Art. I, § 14, regarding 

Bolden's claims asserted against her in her official capacity, and (2) 

State-agent immunity regarding Bolden's claims asserted against her in 

her individual capacity. On October 18, 2018, the circuit court dismissed 

Bolden's claims against Macon County. 
SC-2023-0322

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On November 8, 2018, Bolden filed an amended complaint against 

the Macon County Board of Education, Moore, and Smith. Bolden 

asserted against Moore and Smith claims of assault; battery; the tort of 

outrage; malicious prosecution; wanton, reckless and/or negligent 

infliction of emotional distress; negligence and wantonness; and 

negligent, reckless, willful, and wanton conduct. Unlike in her original 

complaint, Bolden asserted those claims against Moore and Smith solely 

in their individual capacities. Specifically, as it relates to Smith in that 

regard, the amended complaint stated:

"7. [Bolden] avers that at all times herein, the 

Defendants Arnetta Moore, Dawn Smith were acting 

individually in exceeding their discretion and judgment ... 

described herein above within the line and scope of their 

employment but beyond the authority granted to them by 

Defendant Macon County Board of Education. The 

Defendants Moore and Smith were employees or agents of 

Defendant Macon County Board of Education, but the claims 

of [Bolden] against said Defendants Arnetta Moore and/or 

Dawn Smith are maintained against said persons in their 

individual capacity for engaging in actions harmful to [T.B.] 

which were prohibited by the Defendant Macon County Board 

of Education.

"....

"10. After March 17, 2016, the minor plaintiff [T.B.] was 

caused to be injured and damaged when the Defendant Dawn 

Smith, acting individually, and as a teacher at Deborah 
SC-2023-0322

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Cannon Wolfe Elementary School, and thus an employee of 

the Macon County Board of Education, physically assaulted 

[T.B.] by virtue of corporal punishment.

"....

"12. The Defendants Arnetta Moore and Dawn Smith 

individually exceeded discretionary judgment and engaged in 

acts that were reckless, malicious, and beyond their authority 

and ... outside the scope of the Macon County Board of 

Education's policies and procedures for touching, contacting 

or punishing a student."

The Macon County Board of Education filed a motion to dismiss the 

claims asserted against it in Bolden's amended complaint based on State 

immunity. The circuit court granted that motion on January 9, 2019, 

leaving only Moore and Smith as defendants in Bolden's action on behalf 

of T.B.

On November 26, 2018, Smith and Moore filed a joint answer to 

Bolden's amended complaint in which they again asserted the defense of 

State-agent immunity. On December 21, 2018, Smith filed a summaryjudgment motion and a brief in support thereof in which she contended 

that she was entitled to: (1) State-agent immunity; (2) parental immunity

because she had stood in loco parentis as T.B.'s teacher; and (3) statutory 

immunity under § 16-28A-1, Ala. Code 1975, if the allegations concerned 
SC-2023-0322

18

a matter of student discipline. In support of her summary-judgment 

motion, Smith submitted, among other exhibits, an affidavit from Smith 

in which she categorically stated: "I never held [T.B.'s] arm or arms 

behind his back while telling another student to hit [T.B.]. I never 

witnessed another student hit [T.B.]. I do not administer corporal 

punishment on my students, and I have never corporally punished 

[T.B.]."

On January 7, 2019, Bolden filed a response in opposition to Smith's 

summary-judgment motion in which she argued that Smith was not 

entitled to State-agent immunity because, she said, Smith had acted 

beyond her authority by violating the Macon County Board of Education

Policy Manual's section that addressed the use of corporal punishment. 

Bolden further contended that § 16-28A-1 provided Smith no protection 

because it only permits a teacher to use corporal punishment "[s]o long 

as teachers follow approved policy in the exercise of their responsibility 

to maintain discipline in their classroom," but, she said, Smith had not 

followed that policy. In support of her response in opposition to Smith's 

summary-judgment motion, Bolden submitted, among other exhibits, the 

full deposition testimonies from herself, T.B., and Smith, a copy of the 
SC-2023-0322

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D.C. Wolfe Faculty/Staff Handbook, and the section of the Macon County 

Board of Education Policy Manual that addressed corporal punishment.

On January 8, 2019, Smith filed a reply to Bolden's response in 

opposition to Smith's summary-judgment motion. In that reply, Smith 

noted, among other things, that Bolden had not addressed the claim of

negligent infliction of emotional distress, and Smith thus argued that she 

was entitled to a summary judgment as to that claim On the same date, 

Smith filed several motions to strike exhibits Bolden had submitted in 

support of her response to Smith's summary-judgment motion. Relevant 

here is Smith's motion to strike portions of Bolden's deposition testimony 

concerning the alleged incident with Y. because Bolden had admitted she 

was not present at D.C. Wolfe on the day of the alleged incident and that 

she had learned what had happened from T.B. Consequently, Smith 

argued, the portions of Bolden's testimony that addressed the alleged 

incident should be excluded as inadmissible hearsay. The circuit court 

never ruled on that motion or any of Smith's other motions to strike 

evidence submitted by Bolden in response to Smith's summary-judgment 

motion.
SC-2023-0322

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On March 8, 2019, Bolden filed a "Sur-Reply to Defendant Dawn 

Smith's Motions to Strike." As part of that filing, Bolden again submitted 

the full deposition testimonies from herself and T.B., but she also 

submitted the deposition testimony from Superintendent Brooks. On 

March 11, 2019, Smith filed a motion to strike Bolden's surreply. Smith 

contended that the surreply was not permitted under the Alabama Rules 

of Civil Procedure without leave of the circuit court. Simultaneously, 

Smith also filed a response to Bolden's surreply. The circuit court never 

ruled on Smith's motion to strike Bolden's surreply.

On November 8, 2019, the circuit court entered a default judgment 

against Moore, because Moore never showed up for a deposition. On 

March 13, 2020, the circuit court entered an order assessing damages 

against Moore. The circuit court awarded Bolden, on behalf of T.B.,

compensatory damages in the amount of $1,500,000 and punitive 

damages "for [Moore's] intentional misuse of corporal punishment" in the 

amount of $500,000.

The circuit court held a hearing on Smith's summary-judgment 

motion on October 6, 2022. On March 24, 2023, the circuit court entered 

an order stating: "Defendant Dawn Smith's Motion for Summary 
SC-2023-0322

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Judgment is hereby DENIED. Count IV of [Bolden's] Complaint and 

Amended Complaint alleging Intentional, Wanton, Reckless, or 

Negligent Infliction of Emotional Distress is hereby DISMISSED."

(Capitalization in original.)

II. Standard of Review

"A writ of mandamus is a

"'drastic and extraordinary writ that will be issued 

only when there is: 1) a clear legal right in the 

petitioner to the order sought; 2) an imperative 

duty upon the respondent to perform, accompanied 

by a refusal to do so; 3) the lack of another 

adequate remedy; and 4) properly invoked 

jurisdiction of the court.'

"Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala.

1993); Ex parte AmSouth Bank, N.A., 589 So. 2d 715, 717 

(Ala. 1991); Ex parte Day, 584 So. 2d 493, 494 (Ala. 1991). 

While the general rule is that denial of a summary-judgment

motion is not immediately reviewable by an appellate court, 

the exception to the general rule is that a denial of a motion 

for a summary judgment grounded on a claim of immunity is 

immediately reviewable by a petition for a writ of mandamus, 

Ex parte Purvis, 689 So. 2d 794 (Ala. 1996) ....

"However, whether review of the denial of a summaryjudgment motion is by a petition for a writ of mandamus or by 

permissive appeal, the appellate court's standard of review 

remains the same. If there is a genuine issue as to any 

material fact on the question whether the movant is entitled 

to immunity, then the moving party is not entitled to a 

summary judgment. Rule 56, Ala. R. Civ. P. In determining 

whether there is [an issue of] material fact on the question 
SC-2023-0322

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whether the movant is entitled to immunity, courts, both trial 

and appellate, must view the record in the light most

favorable to the nonmoving party, accord the nonmoving

party all reasonable favorable inferences from the evidence, 

and resolve all reasonable doubts against the moving party, 

considering only the evidence before the trial court at the time 

it denied the motion for a summary judgment. Ex parte Rizk,

791 So. 2d 911, 912 (Ala. 2000)."

Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002).

III. Analysis

Smith begins the argument portion of her petition by contending 

that Bolden's official-capacity claims are barred by State immunity. 

However, as we noted in our rendition of the facts, Bolden's amended 

complaint did not assert any official-capacity claims against Smith, so 

Smith's arguments in that regard are irrelevant.

Smith begins her argument concerning Bolden's individualcapacity claims by contending that Smith's alleged conduct occurred in 

the course of performing duties that entitle her to State-agent immunity.

"'[T]his Court has established a "burdenshifting" process when a party raises the defense 

of State-agent immunity. Giambrone v. Douglas, 

874 So. 2d 1046, 1052 (Ala. 2003). In order to claim 

State-agent immunity, a State agent bears the 

burden of demonstrating that the plaintiff's claims 

arise from a function that would entitle the State 

agent to immunity. Giambrone, 874 So. 2d at 1052; 
SC-2023-0322

23

Ex parte Wood, 852 So. 2d 705, 709 (Ala. 2002). If 

the State agent makes such a showing, the burden 

then shifts to the plaintiff to show that the State 

agent acted willfully, maliciously, fraudulently, in 

bad faith, or beyond his or her authority. 

Giambrone, 874 So. 2d at 1052; Wood, 852 So. 2d 

at 709; Ex parte Davis, 721 So. 2d 685, 689 (Ala.

1998). "A State agent acts beyond authority and is 

therefore not immune when he or she 'fail[s] to 

discharge duties pursuant to detailed rules or 

regulations, such as those stated on a checklist.'"

Giambrone, 874 So. 2d at 1052 (quoting Ex parte 

Butts, 775 So. 2d 173, 178 (Ala. 2000)).'

"Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006). 

'State-agent immunity protects agents of the State in their 

exercise of discretion in educating students. We will not 

second-guess their decisions.' Ex parte Blankenship, 806 So.

2d 1186, 1190 (Ala. 2000). However, '[o]nce it is determined 

that State-agent immunity applies, State-agent immunity is 

withheld upon a showing that the State agent acted willfully, 

maliciously, fraudulently, in bad faith, or beyond his or her 

authority. [Ex parte ] Cranman, 792 So. 2d [392,] at 405 [(Ala.

2000)].' Ex parte Bitel, 45 So. 3d 1252, 1257-58 (Ala. 2010)."

N.C. v. Caldwell, 77 So. 3d 561, 566 (Ala. 2011) (emphasis added). More 

specifically,

"'[a] State agent shall be immune from civil 

liability in his or her personal capacity when the 

conduct made the basis of the claim against the 

agent is based upon the agent's

"'....
SC-2023-0322

24

"'(5) exercising judgment in the discharge of 

duties imposed by statute, rule, or regulation in ... 

educating students.

"'Notwithstanding anything to the contrary 

in the foregoing statement of the rule, a State 

agent shall not be immune from civil liability in 

his or her personal capacity

"'(1) when the Constitution or laws of the 

United States, or the Constitution of this State, or 

laws, rules, or regulations of this State enacted or 

promulgated for the purpose of regulating the 

activities of a governmental agency require 

otherwise; or

"'(2) when the State agent acts willfully, 

maliciously, fraudulently, in bad faith, beyond his 

or her authority, or under a mistaken 

interpretation of the law.'

"Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000) (plurality 

opinion) (adopted by this Court in Ex parte Butts, 775 So. 2d 

173 (Ala. 2000))."

Ex parte Monroe Cnty. Bd. of Educ., 48 So. 3d 621, 625 (Ala. 2010). See 

also § 36-1-12, Ala. Code 1975.

Smith contends that she made a prima facie showing that Bolden's 

allegations arose from Smith's function as an educator of students. There 

is no dispute that the alleged incident with Y. occurred in Smith's 

classroom while T.B. was a student in her class. Smith argues that she 
SC-2023-0322

25

has discretion to discipline her students to maintain a suitable learning 

environment for all students. 

Bolden counters by contending that Smith acted beyond her 

authority by using corporal punishment in a manner that clearly violated 

the Macon County Board of Education Policy Manual's section 

addressing corporal punishment. That section provides:

"6.16 Corporal Punishment

"The Board allows reasonable corporal punishment of 

students under the following terms and conditions. Corporal 

punishment will be administered only as a disciplinary 

measure, with due regard for the age and physical condition 

of the student, and without excessive force. Corporal 

punishment will be administered by the school principal or 

his representative in the presence of another adult 

professional school system employee. Corporal punishment 

should not be administered in the presence of another 

student. The Superintendent is authorized to develop and 

implement procedures for administering and documenting 

corporal punishment, consistent with the terms of this policy.

"[Reference: Ala. Code § 16-28A-2 (1975)]"

(Bold typeface in original.) 

The Macon County Board of Education approved the policy manual 

on July 30, 2010. Additionally, the verbatim corporal-punishment policy 

is contained in the "Macon County Schools Personnel Manual with 
SC-2023-0322

26

Employee Code of Conduct," which Smith admitted in her deposition 

applied to her.

Bolden contends that Smith violated the Macon County Board of 

Education's corporal-punishment policy in three ways: (1) the 

punishment was not carried out with due regard for T.B.'s age as a second 

grader and involved excessive force; (2) the punishment was not 

performed by D.C. Wolfe's principal or her representative in the presence 

of another adult school-system employee; and (3) the punishment was 

administered in the presence of another student. Bolden argues that 

because Smith failed to follow the detailed rules provided to Macon 

County school-system employees regarding how corporal punishment 

should be administered, Smith is not entitled to State-agent immunity 

for her actions.

Smith does not deny that her actions as described by T.B. did not 

conform to the Macon County Board of Education's corporal-punishment 

policy. Instead, she contends that "[t]he evidence before the circuit court, 

... viewed in the light most favorable to [Bolden], does not establish that 

Ms. Smith administered corporal punishment. The policy was 
SC-2023-0322

27

inapplicable, and the [circuit] court therefore erred in denying Stateagent immunity." Smith's petition, pp. 12-13. 

Smith presents two arguments as to why the alleged incident did 

not constitute corporal punishment, neither of which we find persuasive. 

First, she contends that "[t]here was no evidence before the circuit court 

that this incident, which Ms. Smith denies even occurred, was in 

punishment for T.B.'s misbehavior." Smith's petition, p. 13. Smith insists 

that the only evidence that indicated that Smith's actions were in 

response to T.B.'s misbehavior was Bolden's testimony that "[T.B.] told 

me that the little boy threw something and hit him with it, so [T.B.] hit 

him back. When [T.B.] hit him back, that's when Ms. Smith grabbed his 

arms and told [Y.] to come hit him back." Smith notes, however, that she 

filed in the circuit court a motion to strike that portion of Bolden's 

deposition testimony as improper hearsay, and she asserts that it cannot 

be considered in determining whether the Macon County Board of 

Education's corporal-punishment policy applies here. See, e.g., Schroeder 

v. Vellianitis, 570 So. 2d 1220, 1223 (Ala. 1990) ("Under Rule 56(e), [Ala. 

Civ. App.,] 'evidence offered in response to the motion ... must present 

facts that would be admissible into evidence. ... Hearsay cannot create an 
SC-2023-0322

28

issue of fact.'" (quoting Black v. Reynolds, 528 So. 2d 848, 849 (Ala. 

1988))). Smith argues that, without Bolden's testimony, 

"[t]here was no evidence properly before the circuit court ... 

that Ms. Smith intervened in an altercation between students 

or that she saw or even knew about any altercation between 

Y. and T.B. There is no evidence Ms. Smith administered 

punishment to T.B. or that she used excessive force in holding 

his arm. Nor is there any evidence that [Smith] told Y. to hit 

T.B. 'in the face.' That is purely argument of counsel and is 

not evidence."

Smith's petition, p. 15.

There are multiple problems with the foregoing argument. First, 

assuming -- without deciding -- that Bolden's testimony was inadmissible 

hearsay,3 T.B. still testified that he and Y. previously had been in fights,

and that they had fought earlier that very day. In fact, T.B. admitted that 

he had punched Y. in that day's fight, and had hurt Y., but that T.B. had 

not been hurt. Consequently, an inference can be made based on T.B.'s 

testimony that Smith's alleged actions were meant as a disciplinary 

3We note that although, in the specific testimony cited by Smith,

Bolden explained that T.B. had told her what had precipitated the 

incident, elsewhere in her testimony Bolden also stated that she had told 

Smith in a meeting: "'Well, maybe if you hadn't held [T.B.'s] arms back 

and let a student hit him, he would not have called you a B-word.'" That 

more general testimony would not qualify as hearsay testimony.
SC-2023-0322

29

measure against T.B. for fighting with, and hurting, Y. See, e.g., 

Tanksley v. ProSoft Automation, Inc., 982 So. 2d 1046, 1049 (Ala. 2007)

(observing that "we 'accept the tendencies of the evidence most favorable 

to the nonmoving party and must resolve all reasonable doubts in favor 

of the nonmoving party'" (quoting Bruce v. Cole, 854 So. 2d 47, 54 (Ala.

2003))).

Second, T.B. clearly testified that Smith held his arms and told Y. 

to hit T.B.4 We quoted that testimony at length in the rendition of the 

facts. Thus, if Smith's alleged actions were not intended to be disciplinary 

toward T.B., we are left to wonder: What legitimate reason could justify 

those actions? Without some provocation or purpose, Smith's alleged 

actions would simply be categorized as assault and battery, and certainly 

not protected by State-agent immunity. See, e.g., Gary v. Crouch, 867 So. 

2d 310, 313-14 (Ala. 2003) (noting that "State-agent immunity[] does not 

provide immunity from liability for the commission of an intentional tort"

(footnote omitted)). Indeed, in her reply brief, Smith seems to backtrack 

4Smith repeatedly and erroneously states that Bolden's allegation 

is that Smith held T.B.'s "arm," when, in fact, T.B.'s testimony was that 

Smith held both of T.B.'s arms. Smith also repeatedly fails to mention 

T.B.'s additional assertions that Smith told Y. to hit T.B. and that Smith

allowed Y. to hit T.B. in the face.
SC-2023-0322

30

from her initial position that her alleged actions had nothing to do with 

student discipline.

"[Smith's] actions on the day of the alleged incident 

amount to using her judgment as part of the education 

process. Part of [Smith's] responsibilities as a teacher are to 

supervise and educate students in her classroom. [Smith] 

used her professional judgment in determining how to 

maintain order in her classroom and how to correct her 

students. Since students have a right to learn in a nondisruptive environment, [Smith] used her training, 

experience and judgment in addressing student behavior 

issues, including those which disrupt other students.

"[Smith] was clearly engaged in the education process 

during the alleged incident. As such, [Smith] is entitled to the 

protection of State-agent immunity. T.B.'s testimony, at most, 

shows that [Smith's] alleged actions were taken to maintain 

order in her classroom, not to administer corporal 

punishment. [Bolden] has not shown that [Smith's] allegedly 

holding T.B.'s arm was not for the purpose of keeping him 

from hitting his classmate again."

Smith's reply brief, pp. 7-8 (citations to evidentiary materials omitted; 

emphasis added).

Once again, there are multiple problems with the foregoing 

interpretation of the incident. First, Smith again mischaracterizes T.B.'s 

testimony: it was not that Smith held one of T.B.'s arms to keep T.B. from 

hitting another classmate -- a possibility Smith presents without any 

evidentiary support; it was that Smith held both of T.B.'s arms, 
SC-2023-0322

31

instructed Y. to hit T.B., and allowed Y. to punch T.B. in the face.5

Second, if Smith was, as she implies, "addressing student behavior" 

through physical force, that would seem to fall under the rubric of 

corporal punishment, i.e., physical punishment for misbehavior.

That brings us to Smith's second argument as to why, she says, the 

alleged incident did not constitute corporal punishment. Smith 

repeatedly contends that the term "corporal punishment" refers only to 

using a paddle on a student, but that there was no such allegation in this 

instance, and so, Smith says, she did not administer corporal 

punishment. See Smith's reply brief, p. 1 ("[Smith's] alleged actions do 

not constitute corporal punishment, making the cited policy inapplicable. 

[Smith] did not paddle T.B."); p. 4 ("[Smith] never paddled T.B. [Bolden] 

cannot show otherwise. [Bolden] incorrectly categorizes [Smith's] alleged 

actions of holding T.B.'s arm as 'corporal or physical punishment.'"

(emphasis in original)); p. 5 ("[Bolden] failed to show that the [Macon 

5Smith posited a similar scenario in her initial brief: "It was clearly 

within Ms. Smith's authority to restrain a student if necessary in her 

judgment and there is no evidence Ms. Smith restrained T.B. with 

excessive force." Smith's petition, p. 17. But again, Smith leaves out 

T.B.'s testimony that Smith told Y. to hit T.B. and that Smith allowed Y. 

to punch T.B. in the face.
SC-2023-0322

32

County School] Board's corporal punishment policy governed [Smith's] 

alleged actions. T.B. does not claim that [Smith] paddled him. T.B. claims 

instead that [Smith] held his arm and told another student to hit him. 

Such is not corporal punishment."). 

Smith's argument lacks merit for a host of reasons. First, the Macon 

County Board of Education's corporal-punishment policy does not define 

the term corporal punishment as only involving the use of a paddle on a 

student; in fact, it does not provide any specific definition of the term.

Second, in her deposition, Superintendent Brooks testified that corporal 

punishment includes more than just paddling. 

"Q. [Bolden's counsel:] All right. What is the board of 

education's policy on corporal punishment?

"A. The corporal punishment policy is that corporal 

punishment may be administered in Macon County schools by 

the principal or other person in the presence of another adult.

"Q. All right. And this will probably date me a little bit, 

but what do you mean by corporal punishment?

"A. Corporal punishment can be physical exercises, 

squats, squats, swats.

"Q. Paddles?

"A. (Witness nods head.)
SC-2023-0322

33

"Q. They still paddle kids? I am for that. I don't have a 

problem with that.

"Do they?

"A. You can."

Third, the portions of Title 16 -- the Alabama Code's title concerning

education -- that reference corporal punishment do not indicate that it is 

limited to paddling. Section 16-28A-1, Ala. Code 1975, provides, in 

pertinent part:

"It is the finding of the Alabama Legislature that the 

people of Alabama have two basic expectations of their public 

schools: (1) that students be allowed to learn in a safe 

classroom setting where order and discipline are maintained; 

and (2) that students learn at the level of their capabilities 

and achieve accordingly. The Legislature finds further that 

every child in Alabama is entitled to have access to a program 

of instruction which gives him or her the right to learn in a 

non-disruptive environment. No student has a right to be 

unruly in his or her classroom to the extent that such 

disruption denies fellow students of their right to learn. The 

teacher in each classroom is expected to maintain order and 

discipline. Teachers are hereby given the authority and 

responsibility to use appropriate means of discipline up to and 

including corporal punishment as may be prescribed by the 

local board of education. So long as teachers follow approved 

policy in the exercise of their responsibility to maintain 

discipline in their classroom, such teacher shall be immune 

from civil or criminal liability."

(Emphasis added.) Section 16-28A-2, Ala. Code 1975, provides:
SC-2023-0322

34

"The provisions of Title 26 shall not apply to public 

school teachers in relation to corporal punishment of students 

when the punishment is consistent with established written 

policies of the employing board of education. Neither shall the 

provisions of Title 26 apply to public school teachers or other 

employees while maintaining order and discipline in the 

classroom and on public school property, including school 

buses, consistent with written policies of the employing board 

of education."

(Emphasis added.) Section 16-1-23, Ala. Code 1975, which defines and 

prohibits "hazing," provides in part:

"(a) Hazing is defined as follows:

"....

"(3) The term hazing as defined in this 

section does not include customary athletic events 

or similar contests or competitions, and is limited 

to those actions taken and situations created in 

connection with initiation into or affiliation with 

any organization. The term hazing does not 

include corporal punishment administered by 

officials or employees of public schools when in 

accordance with policies adopted by local boards of 

education."

(Emphasis added.) 6

6Smith argues that § 16-28A-1 gave her the "authority to restrain a 

student if necessary" and "the responsibility to maintain order and 

discipline." Smith's petition, p. 17; Smith's reply brief, p. 14 (emphasis 

omitted). But §§ 16-1-23(a)(3), 16-28A-1, 16-28A-2 all make it clear that 

the use of corporal punishment is permissible only if it is consistent with 

the written policies of the local board of education. Section 16-28A-1 
SC-2023-0322

35

Fourth, in several cases the Alabama Court of Civil Appeals has 

described punishments of students other than paddling as "corporal 

punishment." In Huntsville City Board of Education v. Jacobs, 194 So. 3d 

929, 941 (Ala. Civ. App. 2014), an incident of a teacher hitting a student 

on the back with her hand was deemed to be a violation of the Huntsville 

City Board of Education's policy that "prohibited the use of corporal 

punishment in the Huntsville city schools." In Alabama State Tenure 

Commission v. Birmingham Board of Education, 500 So. 2d 1155 (Ala. 

Civ. App. 1986), a high-school basketball coach's hitting his players with 

his fists was deemed a violation of the Birmingham public schools' policy 

concerning corporal punishment. In Alabama Department of Youth 

Services v. State Personnel Board, 7 So. 3d 380, 382 (Ala. Civ. App. 2008), 

which did not involve a school system, an Alabama Department of Youth 

Services ("DYS") supervisor described the DYS policy that "'[c]orporal 

punishment is strictly prohibited and includes striking a student with 

one's fist.'"

offers Smith no protection if she violated the Macon County Board of 

Education's corporal-punishment policy.
SC-2023-0322

36

Fifth, in Ingraham v. Wright, 430 U.S. 651, 660-63 (1977), the 

United States Supreme Court outlined the history of the use of corporal 

punishment in public schools throughout the nation in the course of 

concluding that the prohibition on "cruel and unusual punishments" in 

the Eighth Amendment to the United States Constitution did not apply 

to the use of corporal punishment in schools. In the course of 

summarizing that history, the Court simply, but generally, defined

corporal punishment as "reasonable but not excessive force to discipline 

a child" even though the particular facts in Ingraham did involve a child 

who was disciplined with blows from a paddle. 430 U.S. at 661.

Finally, the general definition of the term "corporal punishment" is 

not limited to paddling. The word "corporal" comes from the Latin word 

"corpus" which literally means "body." "Corporal" literally means "of the 

body." Webster's New World Dictionary of American English, Third 

College Edition, 311 (1988). That same dictionary defines "corporal 

punishment" as "punishment inflicted directly on the body, as flogging: 

now usually distinguished from capital punishment, imprisonment, etc." 

Id. The edition of Black's Law Dictionary in use at the time the Macon 
SC-2023-0322

37

County Board of Education's corporal-punishment policy was approved 

in July 2010 defined "corporal punishment" as:

"Physical punishment; punishment that is inflicted on the 

body (including imprisonment).

"'Past forms of corporal punishment included 

branding, blinding, mutilation, amputation, and 

the use of the pillory and the stocks. It was also an 

element in such violent modes of execution as 

drowning, stoning, burning, hanging, and drawing 

and quartering [....] In most parts of Europe and 

in the United States, such savage penalties were 

replaced by imprisonment during the late 

eighteenth and early nineteenth centuries, 

although capital punishment itself remained. 

Physical chastisement became less frequent until, 

in the twentieth century, corporal punishment was 

either eliminated as a legal penalty or restricted to 

beating with a birch rod, cane, whip, or other 

scourge. In ordinary usage the term now refers to 

such penal flagellation.' Gordon Hawkins, 

'Corporal Punishment,' in 1 Encyclopedia of Crime 

and Justice 251, 251 (Sanford H. Kadish ed., 

1983)."

Black's Law Dictionary 1353 (9th ed. 2009).7

In short, there is no reason to assume that the Macon County Board 

of Education's corporal-punishment policy applies only to instances in 

7That same definition is still used in the current 11th edition of 

Black's Law Dictionary published in 2019.
SC-2023-0322

38

which a school employee uses a paddle for physical punishment on a 

student as opposed to a situation in which a teacher restrains a student 

and tells another student to hit the student she is restraining. As Bolden 

notes, "[n]o teacher would be allowed to strike a child in the face with her 

own fist, and is not allowed to do so by proxy." Bolden's brief, p. 21 

(emphasis omitted). 

Smith's erroneous assumption that corporal punishment must 

involve a paddle is the only way she distinguishes two cases Bolden cites 

-- Lewis v. Mitchell, 188 So. 3d 698 (Ala. Civ. App. 2015), and Ex parte 

Monroe County Board of Education, 48 So. 3d 621 (Ala. 2010) -- that 

support Bolden's position that Smith acted beyond her authority by 

violating the Macon County Board of Education's corporal-punishment 

policy. See Smith's reply brief, p. 6 ("Both of these cases involve paddlings 

by educators which breached [school] Board policy. Holding a student's 

arm does not amount to [a] paddling. [Bolden's] categorization of 

[Smith's] alleged actions as corporal punishment does not make it so.").

In Ex parte Monroe County Board of Education, a fifth-grade 

teacher paddled a 12-year-old student "for having repeatedly disrupted 

his fifth-grade class." 48 So. 3d at 622. This Court declined to grant the 
SC-2023-0322

39

teacher's petition for a writ of mandamus seeking a dismissal of the 

claims asserted against him by the student's mother based on Stateagent immunity. The Court noted that the Monroe County Board of 

Education's corporal-punishment policy "unequivocally ... required 

witnesses to be present when corporal punishment was administered." 

Id. at 627-28. The Court concluded that "[b]ecause [the teacher] did not 

administer the corporal punishment in the presence of another employee, 

she did not adhere to the [school] Board's policy, she exceeded the scope 

of her authority, and she was not entitled to a summary judgment based 

on State-agent immunity." Id. at 628.

In Lewis, a mother argued that a high-school teacher had exceeded 

the scope of his authority in administering corporal punishment to her 

son and that, therefore, the teacher was not entitled to State-agent 

immunity. The Court of Civil Appeals observed that the mother had 

presented evidence indicating that the teacher had used corporal 

punishment on her son "because he had failed a test" and that both the 

superintendent of the school system and the high-school principal had 

testified that using corporal punishment on a student for making a bad 

grade was a violation of the school system's policies. See Lewis, 188 So. 
SC-2023-0322

40

3d at 700-01. The Lewis court further noted that the mother had also 

presented evidence indicating that the teacher had not "used 'moderate' 

force in accordance with the [school] board's policy." Id. at 701. Following 

this Court's lead in Ex parte Monroe County Board of Education, the

Court of Civil Appeals reasoned that

"[b]ecause [the mother] presented evidence indicating 

that [the teacher] had used corporal punishment in violation 

of the [school] board's policy, we conclude that there was a 

genuine issue of material fact regarding whether [the teacher] 

'exceeded the scope of [his] authority, and [that he, therefore,] 

was not entitled to a summary judgment based on State-agent 

immunity.' Ex parte Monroe Cnty. Bd. of Educ., 48 So. 3d at 

628."

Id.

As in Ex parte Monroe County Board of Education and Lewis, 

Bolden presented substantial evidence indicating that Smith had used 

corporal punishment on T.B. in violation of the Macon County Board of 

Education's corporal-punishment policy. Accordingly, Smith was not 

entitled to a summary judgment based on State-agent immunity.

Smith also briefly argues that, even if the alleged incident involved 

the use of corporal punishment, she was entitled to "schoolmaster's

immunity." See Smith's petition, pp. 29-30; Smith's reply brief, pp. 12-13.
SC-2023-0322

41

In Hinson v. Holt, 776 So. 2d 804, 810-11 (Ala. Civ. App. 1998), the Court 

of Civil Appeals explained:

"At common law, 'any touching by one person of the 

person of another in rudeness or in anger is an assault and 

battery.' Seigel v. Long, 169 Ala. 79, 82, 53 So. 753, 754 (1910); 

see also Surrency v. Harbison, 489 So. 2d 1097, 1104 (Ala. 

1986). However, the Alabama Supreme Court has recognized 

a qualified privilege for an educator's discipline of a student. 

In Suits v. Glover, 260 Ala. 449, 71 So. 2d 49 (1954), the court 

affirmed a judgment on a jury verdict in favor of a 

schoolmaster on his pupil's assault-and-battery claims 

because evidence in that case justified such a verdict. The 

Suits court noted the following applicable principles of law:

"'A schoolmaster is regarded as standing in 

loco parentis and has the authority to administer 

moderate correction to pupils under his care. To be 

guilty of an assault and battery, the teacher must 

not only inflict on the child immoderate 

chastisement, but he must do so with legal malice 

or wicked motives or he must inflict some 

permanent injury. In determining the 

reasonableness of the punishment or the extent of 

malice, proper matters for consideration are the 

instrument used and the nature of the offense 

committed by the child, the age and physical 

condition of the child, and the other attendant 

circumstances.'

"260 Ala. at 450, 71 So. 2d at 50."

Smith argues that 

"there was no evidence before the circuit court that she 

administered excessive or immoderate discipline to T.B. Nor 

was there any evidence Ms. Smith acted with malice or 
SC-2023-0322

42

improper motive, and it is undisputed that T.B. suffered no 

injury at all. [Therefore, under Suits v. Glover, 260 Ala. 449, 

71 So. 2d 49 (1954), the] circuit court erred in denying Ms. 

Smith's motion for a summary judgment."

Smith's petition, p. 30.

First, it is difficult to imagine any circumstances under which T.B.'s 

allegation that Smith restrained T.B.'s arms, instructed Y. to hit T.B., 

and allowed Y. to punch T.B. in the face would not be considered 

excessive or immoderate discipline toward a second grader. Regardless, 

Smith appears to misunderstand the scope of the immunity described in 

Suits v. Glover, 260 Ala. 449, 71 So. 2d 49 (1954). "In Suits, the Alabama 

Supreme Court identified elements a student plaintiff would have to 

prove in order to recover on for assault and battery based on corporal 

punishment." H.Y. ex rel. K.Y. v. Russell Cnty. Bd. of Educ., 490 F. Supp. 

2d 1174, 1192 (M.D. Ala. 2007). 

"Under Suits, 'a teacher may punish a student unless he 

"inflict[s] on the child immoderate chastisement ... with legal 

malice or wicked motives ... or inflict[s] some permanent 

injury."' Deal ex rel. Barber v. Hill, 619 So. 2d 1347, 1349 (Ala. 

1993) (alterations in original) (quoting Suits, 71 So. 2d at 50)."

Wilcox v. Andalusia City Sch. Bd. of Educ., [No. 2:19-cv-650-RAH, Mar. 

8, 2023] __ F. Supp. 3d __, __ (M.D. Ala. 2023). See also Smith v. Smith, 

922 So. 2d 94, 98 (Ala. 2005) (explaining that "a teacher '"is regarded as 
SC-2023-0322

43

standing in loco parentis"' and has the authority to administer moderate 

corporal punishment to students under his or her care. Deal v. Hill, 619 

So. 2d 1347, 1348 (Ala. 1993) (quoting Suits v. Glover, 260 Ala. 449, 450, 

71 So. 2d 49, 50 (1954))."). Thus, assuming schoolmaster's immunity may 

be applicable in this case, it would apply only to Bolden's claims of assault 

and battery.

Even so, we already have concluded that Bolden presented 

substantial evidence indicating that Smith acted beyond her authority by 

violating the Macon County Board of Education's corporal-punishment 

policy.

"This court, in Hinson v. Holt, held that evidence of a violation 

of a board of education's policy regarding corporal punishment 

was evidence of malice. 776 So. 2d at 812. Similarly, in the 

present case, evidence indicating that [the teacher] had 

violated the [school] board's policy would be evidence of 

malice. Because we have concluded that there is an issue of 

fact regarding whether [the teacher] violated the policy of the 

[school] board, we likewise conclude that there is an issue of 

fact regarding whether there was evidence of malice. 

Therefore, [the teacher] is not entitled to a summary 

judgment in his favor based on schoolmaster immunity."

Lewis, 188 So. 3d at 701-02. As in Hinson and Lewis, evidence indicating 

that Smith violated the Macon County Board of Education's corporalpunishment policy raises an issue of fact as to whether Smith acted with 
SC-2023-0322

44

malice. Therefore, Smith was not entitled to a summary judgment based 

on schoolmaster's immunity with respect to Bolden's claims of assault 

and battery. 

IV. Conclusion

As we noted in the standard of review, this Court must view the 

evidence in the light most favorable to Bolden. Under that standard, 

T.B.'s testimony established that Smith used a form of corporal 

punishment when she held T.B.'s arms behind his back, told Y. to hit 

T.B., and allowed Y. to punch T.B. in the face. Bolden also presented 

substantial evidence indicating that Smith violated the Macon County 

Board of Education's specific corporal-punishment policy, thus indicating 

that Smith acted beyond her authority; therefore, Smith is not entitled 

to State-agent immunity. Bolden's evidence indicating that Smith 

violated the corporal-punishment policy also means that Smith is not 

entitled to statutory immunity under § 16-28A-1, and she is not entitled 

to schoolmaster's immunity concerning Bolden's claims of assault and 

battery. Therefore, Smith's petition for a writ of mandamus is due to be 

denied.

PETITION DENIED.
SC-2023-0322

45

Parker, C.J., and Wise, Sellers, Stewart, Mitchell, and Cook, JJ., 

concur.

Shaw and Bryan, JJ., concur in the result.