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 judgments 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 right 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 official 
2

immunity or the public-duty doctrine (Teacher). Their one-fact SUMF1 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 District 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 decision, 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 practice 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 established 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 contradict that prima facie 

showing by reference to affidavits, 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; see 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 disputed. 

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 properlypleaded 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 District’s liability insurance worked a waiver of 

sovereign immunity (see 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 

was 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 policy 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, 623-24 (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 on Evid. § 249 

(8th ed., Jan. 2020 update). We think the same when an insurance policy is produced to 

rebut an opposing party’s allegations about policy terms. 
4

Official Immunity

Official 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, formatting, 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, Teacher 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 matter 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.3d 
5

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 liability 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) factual 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 further 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 the petition irrefutably

establishes, on its face and without exception, that the affirmative defense applies and the 

claim is barred. See Cornelius v. CJ Morrill, 302 S.W.3d 176, 179 (Mo.App. 2009). 

That was not the case here.