JANE DOE, as next friend on behalf of ) JOHN DOE MINOR, a minor, ) ) Appellant, ) )

vs. ) No. SD36665 ) JOHN GARAGNANI , and ) FILED: October 26, 2020 CAMDENTON R

- III SCHOOL ) DISTRICT , ) ) Respondents. )

APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY Honorable Peggy Richardson, Judge AFFIRMED IN PART, REVERSED IN PART, AND REMANDED Appellant ( “ Plaintiff ” ) appeals from summary judgment s entered in favor of Respondents ( “ Defendants, ” and individually “ District ” and “ Teacher ” )

. We affirm

as to District based on sovereign immunity . We reverse and remand as to Teacher
, who has not established his r ight to judgment as a matter of law on this record. Background
Plaintiff , a high

- schooler, sued Defendants in tort , alleging he had asked to leave class due to an urgent restroom need
, but Teacher refused contrary to school policies
, causing Plaintiff to wet himself in the classroom in front of his peers. Without answering or conducting discovery, Defendants immediately sought summary judgment based on sovereign immunity ( District ) and official2 immunity or the public

- duty doctrine (Teacher)

. The ir one
- fact SUMF 1 asserted
that District ’ s liability insurance expressly excluded claims “ barred by

... sovereign immunity

... and nothing in this Document shall constitute any waiver of whatever
kind of the defense of sovereign immunity. ” After briefing and argument, the trial court granted Defendants ’ motion , entering summary judgment as requested for Distri ct based on sovereign immunity and for Teacher based on official immunity or the public

- duty doctrine. This appeal follows. Principles of Review
We do not defer to the trial court ’ s de cision, but instead review a grant of summary judgment de novo using the same criteria the trial court should have
used. Green v. Fotoohighiam , 606 S.W.3d 113 , 115 (Mo. banc 2020)

. Missouri summary

- judgment p ractice is governed by Rule 74.04 and the
famed ITT case

. Id . at 116 (citing ITT Commercial Fin. Corp. v. Mid

- Am. Marine Supply Corp. , 854 S.W.2d 371 (Mo. banc 1993)). As relevant here:

• If District or Teacher establish ed a prima facie right to judgment any of three ways recognized by ITT , 2 Plaintiff could not rest on mere allegations or denials, but had to co ntradict th at prima facie showing by reference to affidavit s , discovery, or admissions on file; otherwise “ judgment is properly entered against the non

- movant because the movant has already established a right to judgment as a matter of law. ” ITT , 854 S.W.2d at 381

.

• Rule 74.04(c) creates the standard procedural framework for such analysis

. Indeed, summary judgment “‘ rarely if ever lies, or can withstand appeal, unless it flows as a matter of law from appropriate Rule 74.04(c) numbered paragraphs and responses

1 Statement of uncontroverted material facts ; s ee Rule 74.04(c). In reviewing summary judgment, we look to the Rule 74.04(c) numbered paragraphs and responses to determine which facts, if any, have been established and which facts, if any, are genuinely di sputed. Lackey v. Iberia R

- V Sch. Dist. , 487 S.W.3d 57, 61

- 62 (Mo.App. 2016).

2 Per ITT , 854 S.W.2d at 381 :

a “ defending party ” may establish a right to judgment by showing (1) facts that negate any one of the claimant ’ s elements facts, (2) that the non

- movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant ’ s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant ’ s properly

pleaded affirmative defense.3 alone. ’” Green , 606 S.W.3d at 117

- 18 (quoting Jones v. Union Pac. R.R. Co. , 508 S.W.3d 159, 161 (Mo.App. 2016) )

. Sovereign Immunity (District)

“ District, a public entity, enjoys sovereign immunity except as waived
, ” and
Plaintiff “ must plead and prove such waiver as part of his case in chief. ” Lackey
, 487 S.W.3d at 59

. The latter “ is well settled. ” St. John ’ s Clinic, Inc. v. Pulaski County Ambulance Dist. , 422 S.W.3d 469, 471 & n.5 (Mo.App. 2014)

. Although Plaintiff alleged D istrict ’ s liability insurance worked a waiver of sovereign immunity ( s ee RSMo § 537 .610.1 ), Defendants ’ SUMF and attached policy showed otherwise

. 3 As a result, the trial court found no sovereign

- immunity
waiver and that “ Plaintiff ’ s Petition states no claim against the District on which relief may be granted. ”
Plaintiff ’ s first point on appeal alleges that District did not lay a proper foundation to admit the insurance policy
, yet “ we find that Plaintiff[] failed to raise the issue in the trial court, and it may not be raised for the first time on appeal

. ”
Scholes v. Great Southern Bank , 519 S.W.3d 519, 523 (Mo.App. 2017)

. Plaintiff ’ s arguments fail anyway , particularly his theory that the insurance policy

w as hearsay. 4 We deny Point 1 and affirm the summary judgment in District ’ s favor. Official Immunity & Public

- Duty Doctrine (Teacher) However, the record does not support Teacher ’ s summary judgment based

on official immunity or the public

- duty doctrine.

3 “ A public entity does not waive its sovereign immunity by maintaining an insurance policy where that pol icy includes a provision stating that the policy is not meant to constitute a waiver of sovereign immunity. ” Langley v. Curators of Univ. of Missouri , 73 S.W.3d 808, 811 (Mo.App. 2002)

. See also State ex rel. Bd. of Trustees. v. Russell , 843 S.W.2d 353, 360 (Mo. banc 1992) ; State ex rel. Cass Med. Ctr. v. Mason , 796 S.W.2d 621, 62 3

- 24 (Mo. banc 1990 ) ; St. John’s Clinic , 422 S.W.3d at 470 n.3 ; Brooks v. City of Sugar Creek , 340 S.W.3d 201, 208

- 09 (Mo.App. 2011)

.
4 “ When a suit is brought for breach of a written contract, no one would think to object that a writing offered as evidence of the contract is hearsay. ” 2 McCormick o n Evid. § 249 (8th ed., Jan

. 2020 update ). We think the same when an insurance policy is produced to rebut an oppo sing party ’ s allegations about policy terms.4 Official Immunity
O fficial immunity , a judicially

- created doctrine , shields public employees
from negligence liability for discretionary acts performed in the course of official
duties , but not for ministerial acts

. Southers v. City of Farmington , 263 S.W.3d 603, 610 (Mo. banc 2008)

. “ Thus, the key to official immunity is whether the public employee was performing a discretionary task, for which there is immunity, or a non

- discretionary ministerial task, for which there is not. ” A.F. v.
Hazelwood Sch. Dist. , 491 S.W.3d 628, 631 (Mo.App. 2016). Public school teachers are public officials who may qualify for official immunity. Id

. Whether an act is discretionary or ministerial
, for this purpose, depends on the degree of reason and judgment required to perform the act. McCoy v.
Martinez , 480 S.W.3d 420, 425 (Mo.App. 2016). 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. 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.
Id. (citations, fo rmatting , and some punctuation omitted). Unlike sovereign immunity, official immunity is an affirmative defense that
Teacher had the burden to prove

. Nguyen v. Grain Valley R

- 5 Sch. Dist.
, 353 S.W.3d 725, 730 (Mo.App. 2011). For summary judgment, Teach er needed to
demonstrate undisputed facts establishing his affirmative defense ( id . at 731 ), for which we normally consider “ appropriate Rule 74.04(c) numbered paragraphs and

responses alone

. ” Green , 606 S. W. 3d at 117

- 18

. Yet Defendants limited their
SUMF to District ’ s sovereign

- immunity claim and offered no facts in Teacher ’ s defense. “ In short, [Defendants] simply did not establish through undisputed facts that [Teacher] was entitled to official immunity and judgment as a ma tter of law. ” Nguyen , 353 S.W.3d at 732

. 5

5 Teacher argues that Plaintiff ’ s pleading alone justified summary judgment, to which we offer two replies. First, summary judgment is subject to a higher, fact

- based standard than motions to dismiss. See Whithaus v. Curators of Univ. of Missouri , 347 S.W.3d5 Public

- Duty Doctrine

“ The public duty doctrine states that a public employee is not civilly liable for the breach of a duty owed to the general public, rather than a particular
individual. ” Southers , 263 S.W.3d at 611

. It is not an affirmative defense , but
rather “ negates the duty element required to prove negligence, such that there can be no cause of action for injuries sustained as the result of an alleged breach of public duty to the community as a whole. ” Id. at 612

. Its protections are subject to exceptions, including actions taken in bad faith or with malice
, or “ when injury to a particular, identifiable individual is reasonably foreseeable as a result of a public employee ’ s breach of duty, ” with liabili ty in the latter situation dependent
on the facts of each case. Id

. Here, as with official immunity, Teacher does not prove a right to judgment under the Rule 74.04(c) record or otherwise. A bare assertion that the public

- duty doctrine applies, without Rule 74.04(c) fact ual support, does not satisfy Teacher ’ s burden to make the prima facie showing required by ITT

. We grant Point 2.
Conclusion
We affirm the judgment as to District . As to Teacher, we reverse and
remand for f urther proceedings.

DANIEL E. SCOTT, J.

– OPINION AUTHOR NANCY STEFFEN RAHMEYER, P.J.

– CONCURS WILLIAM W. FRANCIS, JR., J.

– CONCURS

102, 104 (Mo.App. 2011); Fortenberry v. Buck , 307 S.W.3d 676, 679 (Mo.App. 2010). Second, even under the lower standard, dismissal lies only if t he petition irrefutably establishes, on its face and wit hout exception
, that the affirmative defense applies and the claim is barred . S ee Cornelius v. CJ Morrill , 302 S.W.3d 176, 179 (Mo.App. 2009). That was not the case here.