1 Doe’s compl aint include d claim s against th e Bartow County School Distric t, the School’s principal, and another School employ ee . The trial court grante d summar y judgment as to t hose defen dants and Doe does no t challeng e that ruli ng. WHOLE COURT NOTICE: Motions for recons i deration must be physically

received

in our clerk’s of

fi ce within ten days of the date of decision to be deemed timely filed. http:/ /www .gaappeal s.us/rul es/ July 16, 2014



## In the Court of Appeals of Georgia
A14A0448. BUTL ER v. D OE et al. D ILL ARD , Judge. Jane Doe , a mi nor, 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 stud ent at the Sc hool as a res ult o f Butl er’s a lleged failure to pr operly sup ervise the stu den ts d uri ng a n aft er-s cho ol a cti vit y. 1 Butler moved for sum mary ju dgment on the ground that his supervision of the students in qu es tion was a discretionary

function that entitled him to official imm unity. The trial court denied Butl er’s motion, holding that his alleged failure to supervise the students amounted2 See Marti n v. He rr ington Mill, LP , 316 Ga. App. 696, 697 (730 SE 2d 164) (2012) (“[ A] de n ovo standar d of revie w applies to an appeal from a grant or

denial of summa ry judgm ent, and w e view the evidence , and

all reas onable conc lusions and inferences drawn f

rom i t, in the l ight

most f avorableto the nonm

ovant.” ( punctuation omitted)). 2 to a min isterial function to which off icial im munity doe s no t ap ply. Butler a

rgues on appeal that the tr

ial court erred in c oncludingthat his acts were ministerial rather than discretionary. We

agree. Viewed in the light most favorable to Doe, 2 the recor d shows th at in 20 10, Butler was a teacher at the S chool and al so served a s a teacher advisor f or the color guard. On the afternoo n in question, the School had two af

ter-scho ol functions in the gymnas ium—a

color-guard presentation followed by a choral concert. Doe wa s participa ting in b oth funct ions. 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 ti me and gathered them in the chor

us room , a room

directly adj acent

to the gymn asi um. The group left their per sonal belong ings in the chorus room and Butler then escortedthe student s to a mobile classroom to retrieve their equipment. Butler thereafter watched the students perf orm t h eir color-guard presentation and then helped th em return their eq uipment to th e mobile classro om.3 Butler testified definitively that he a scertain ed that the three re maining students planned to a

ttend the c oncert. Doe asse rts in her affidavit , howeve r, that Butler “did no t inquire as to whethe r any of the othe r students w ere being picked up or rem aining at th e schoolfor the conce rt.” W e note that Doe is lim

ited to swe aring 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) (“S upportingand opposing a ffidavits shall be made on personal knowledge, shall set forth such fact s as would be

admis sible in

the eviden ce, and s hall show a ffirmatively that the affi ant is compete nt t o testif y to the matt ers state d therein. ”) (em phasis supplied). But even if

we assum

e that Butl er did

not attem pt to ascer

tain the students’ plans, thi s in no way

impac ts our

ultimate conclusion that

his failure to do so wa s a discretio nary act. 3 Afterw ards, the color- guard group returned to the chor

us room to gather t

heir personal belongings. Butler w as aware that Doe was per forming in

the choral concert immediately

following

the color- guard pre sentation a nd, shortly

after th e group entered the chorus room, Doe left and went to the res troom to change her

clothing. There is a fa ctu al d is pu te a s t o wh eth er t he r ema i ning three students sta yed in t he chorus room and/or whether Butler inq

uired as to whether

those studen

ts intended to leave the School or a

ttend the c oncert. 3 Regardle ss, Butle r, who w as not resp onsible for attending or

supervising

the subsequent choral c oncert, left thechorus room and entered t he adjoining gym

nasium . 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 conc ert before he left the Sch ool.4 Pe rkins v. M organ Cnty. Sch. Dis t ., 222 G a. App. 831, 835 (2) (476 SE2d 592) (1996) (e mphas is supplied) ; accord Leake v. Murphy , 274 Ga. App. 219, 224 (2) (617 SE2d 575) (2005), o v errule d on oth er gr oun ds b y Murphy v. Bajjani , 282 Ga. 197 (647 SE2d

54) (2007); see also Reece v. Turner , 284 Ga. App. 282, 285 (1) (64 3 SE2d 814) (2007) (“T

he determ

ination of w

hether an action is di scretiona

ry or minist e rial depends on th e charac ter of the specificactions co mplained of, not the general nature of the job, and is to be made on a case-by-ca se bas is.” (pun ctuation omitte d)); Wright v . Ashe , 22 0 Ga . Ap p. 9 1, 9 4 (4 69 SE2 d 2 68 ) (1 99 6) ( “[ T]h e general task im

posed on teachers to monitor, super vise, and co ntrol stu dents has
. .

. been held t o be a discretionary action which is protected by the doctrine of official immunity .”) 4 Doe all ege s t hat sh e re ent ere d t he c ho rus roo m aft er retur ning from

the restroom and, although the other three color-guard students were t he re when s he initially entered, two eventually left and she was sexually assaulted by the third. She thereafter sued Butle r, asser

ting that his ac t inleaving the students unsu

pervised in the chorus room following the color-guard perform ance resulted in her sexual assault. The trial cour

t denied Bu

tler sum mary judgm ent after

con c luding that he

was not entitled to officia l imm

unity because h e had “ an absolute minist erial duty

to protect” the color-gua

rd s tudents rema

ining in the c horus room and his total failure

to supervis e them constit uted a breac h of that minis terial dut y. This appeal fol lows. Georgia law is well es tablished t hat the “

monitor ing, super

vising, and controlling

the activities of students is a discretiona r y action protecte d by the doctrineof official immunity.” 4 Contrary to the holding

of the trial court, t his is true5 See Aliffi v . Liberty Cnt y. School Di st. , 259 Ga. App. 713, 715 (578 SE 2d 146) (2003) (holding teacherwas im mune f rom suit alleging

that she vio lated schoo l policy by send ing a child, tot ally un supervised , to the st orage gar age); Chamlee v. Henry Cn ty. Bd. of Educ. , 239 Ga. App. 183, 184 (1) (52 1 SE2d 78) (1999) (concludin g that teacher ’s inade quate super vision of stud ents during

extracurricular activity was discretionary act entitling teacher to official imm

unity) ; Kelly v. Lewis , 221 Ga. A pp. 506, 50 8 (471 S.E .2d 583) (1996) (granting official imm unity to teacher who failed to be presen

t at the sc hool’s f

ront door to ensure safe arrival of students).
6 Kelly , 221 Ga. App. at 508. 5 even if the all egations involve a te acher’ s total failure to supervise the students under his or her care. 5 In deed, the compl ete fail

ure to perform

a discre tionary

act is “ the
same as the negligent performance of that act for the purposes of determ ining whether such actio n was discret ionary or ministeri al.” 6 There is sim

ply no way

to cons true t he evi dence so as t o con clud e that Butle r’s allegedfailureto supervise was anything other than a disc retionar

y act . Indeed , as is readily apparent from the facts set

forth supra , Butler

was responsible for

monito ring and ensuring the

safety of the students while h e sh uttled t hem be tween num

erous
roo ms in the schoo l, aided t hem in getting the ir

equipm ent

and supplies, facilitated
a successf

ul color-g uard pres entation, and transi tioned t hem from one after-school activity to another . Suffi ce it to sa y, the assessment of whe ther dire ct supervi sion and,7 There is a conflict in the record as to whether attendance at after-s c hool

functions was mandatory. The Schoo l princip al testifi ed that st udents we r e not required to attend after- school functions, although Doe asserted that her attendance atthe choral concert w as indeed m andatory . The undisputed record, however, makes clear that the school had no wri tten polici es direct ing how tea chers were to super vise their students at

after- school func tions. Ins tead, suc h decisions w ere lef t to the “ good profession al judgm

ent” of the

teacher s. And to the extent the trial court and d

issent rely on Butler’ s writte n job desc ription re quiring “ prom pt and re gular atte ndance,” the argum

ent still f ails for t he reason s stated infra
.

6 if so, what degree of

oversight w as required to a cc omplis h the fore going tasks necessaril y involved Bu tler’s person al and prof essional judgment. T he di ssent, like the trial court, nonetheles s relies up on a purport ed School policy that Butle r was re quired to e nsure his st udent s’ atte nda nce at af

ter-scho ol function s in support of i ts position tha t a genuineissue of m

aterial fact exis ts as to whether his failure to ma

ke certain that Doe

reported to the choral concert constituted the breach of a minister ial dut y. 7 This argu ment f ails for t wo reaso ns. First , this contention

fails bec ause the undisputed record sh ows that a ny such duty, to the exte nt
one existed, fell upon th e chorus in structor, not Butler . But in a ny case, even if we accept the dissent ’s strained read ing of the record and assume that Butler violated an established sch ool pol icy, “[s]upervision of students is considered discretionary even where s pecific s chool polici es designed to help cont

rol and m onitor stude nts have8 Chamlee., 239 Ga. A pp. at 184 (1); see also P

erkins , 222 Ga. A

pp. at 836 ( 2) (holdingsecret ary’s failure to enforce school’s policy regarding early dismissal was discretionary

act); Wright , 220 Ga. App. at 93-94 (holding teachers’ failure to enforc e school policy governing class attendance was discretionary act). 7 been violated .” 8 It follow s, then, that But ler is p rotected by the doctrine of official immunity and is entit led to su mmary judgment. J udgment reversed . Andrew s, P. J ., Ell ington, P . J., Doyle, P. J. , McMi llian, J., con cur. Phi

pps, C. J ., and M iller, J . dissent.A14A0448 . BUTLER v. DOE.

M ILLE R , Judge, dissenting. I dissent fr

om the maj ority’ s o pini on because Kevin Butler has f

ailed to establis h that the re are no genu ine issu es of material fact. As the part y m oving for sum mary judgm ent, Butl er bore t he burden of demons trating

that he was e ntitled to of ficial im munity by show ing that thespecific acts he per formed were discretionary. See Howell v . Will is , 317 Ga. App. 199, 203 (729 SE2d 643) (2012). C onsequently , altho u gh the question of whether a governmental emplo yee i s entitled to official imm unity is a question

of law that

must ultima tely be decide d by the

trial cour t, where the rel evant fac ts are in d ispute, th e trial court can

not resolve

the fact ual issues o n a mot

ion for summ ary

judgm ent.2

Nichols v. Prather , 286 Ga. App. 889, 896 (4) (650 SE2d 380) (2007). Instead, a jury must resolve the conflicting facts. Id. Here, Doe alle ged that Bu tler wa s negligent

for leaving her

and another

student alone in the locked chorus room. In support of her claim that Butler w as required to
ensure her atte ndance at the concer t, Doe s ub mitted

Butler’ s job desc ription indicating

that he had a duty to maintain prom pt and regular at tendan ce. Although Butler present e d evidence

that atte ndance ta

king at aft er-school

events wa s not manda tor y, Doe averred that her attendance was m andatory and that attendance was taken. Moreover, Butler deposed that, as a teacher advisor for the color guard, he had
a responsibil ity to m

ake cert ain that the

participa ting students either ha d arid e ho me following the group’s performance or stay ed for the concert. Doe presented evidence that Butler did

not ask the stud ents about

their plan s. Instead, Butler left the s tudents alone in the loc ked chorus room and went to the concert, whereupon Doe w as sexually ass aulted by ano ther stud ent. The evidence does not show as a ma tter of la w that the acts of e nsuring that

the students had a ride home or were goi ng to attend the concer t require d Butler to exercis e persona l judgment, exa mine f acts, reach rea soned concl usions, or act in a way not specif

ically directed
. Instead, making sure that students ar

e either picked up3

following an after-schoolacti vit y, or a tte nd a sub seq uen t aft er-s cho ol a cti vit y, such
as the choral concert

in this case , is a sim

ple, absol ute , and def

ini te action. See McDowe ll

v. Smit h , 285 G a. 5 92, 593-594 (678 SE2d 922) (2009) . In light of this evidence, there is a

que st ion of fac t regarding Butler’ s duties fol lowing the color guardperformance that precludes the grant of summa

ry judgm ent. See Dalton v. City of Marietta , 280 Ga. App. 202, 203 (633 SE 2d 552) (2006) (“E ven sl ight evidence will be suffic ient

to satisfy the plainti ff’s bu

rden of pr oduction of s ome e vidence on
a motion for sum mary judgm ent; such e vidence m ay inc lude favor

able in ferences drawn by the court fro m

the evidence presented.”) (citation and punctuation omitted). Teachers and

school employees have an impor tant respo nsibility

to protect our children, and it is unw ise to advance t he “de facto abs olute im

munity for school emplo yees”

that has developed in our case law where questions of fact remain. See McDowe ll , supra, 28 5 Ga. a t 594 (noting o nly

one rece nt case in which this Court has held that a school employee’ s actions were ministerial). Pr oviding such a bsolute immunity to school employees abrogates the constitutional right of c itizens to s eek redress for injuries infli ctedby th e mini ste rial acts of s cho ol e mplo yees, esp ecia lly upo n young children w

ho are not c apa

ble of c aring for

thems elves or exercising judgm ent. If

Georgia school em

ployee s are to be

clothed w ith absolute imm

unity und er any

and all circum stances, that is a decision to4

be made by the Georgia

General Assem

bly; it is not the f

unction of this, or any, court. Smith v. McDowe ll , 292 Ga. App. 731, 737 (666 SE2d 94) (2008). Since Butler has not shown that the undisputed evidence established that his ac tions were dis cret ion ary, he h as fa ile d to est abl ish tha t he was e nti tle d to offi cial immuni ty. Acco rdi ngl y, I woul d affi rm the tr ial co urt’s d enial of But ler’s motion for summ ary judgment. I am authorized t o state th at Chief Ju dge Phipp s joins in this dis sent.