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, 2015,1in 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.
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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 departmentallymandated 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.