Official immunity. Bartow Superior Court. Before Judge David Smith.
Harben, Hartley & Hawkins, Phillip L. Hartley, Hieu M. Nguyen, for appellant.
Marc P. Lubatkin, for appellees.
DILLARD, Judge. Andrews, P. J., Ellington, P. J., Doyle, P. J., and McMillian, J., concur. Phipps, C. J., and Miller, J., dissent.
Jane Doe, a minor, 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 student at the School as a result of Butler's alleged failure to properly supervise the students during an after-school activity. Butler moved for summary judgment on the ground that his supervision of the students in question was a discretionary function that entitled him to official immunity. The trial court denied Butler's motion, holding that his alleged failure to supervise the students amounted to a ministerial function to which official immunity does not apply. Butler argues on appeal that the trial court erred in concluding that his acts were ministerial rather than discretionary. We agree.
Viewed in the light most favorable to Doe, the record shows that in 2010, Butler was a teacher at the School and also served as a teacher advisor for the color guard. On the afternoon in question, the School had two after-school functions in the gymnasium--a color-guard presentation followed by a choral concert. Doe was participating in both functions.
[328 Ga.App. 432] 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 time and gathered them in the chorus room, a room directly adjacent to the gymnasium. The group left their personal belongings in the chorus room and Butler then escorted
the students to a mobile classroom to retrieve their equipment. Butler thereafter watched the students perform their color-guard presentation and then helped them return their equipment to the mobile classroom.
Afterward, the color-guard group returned to the chorus room to gather their personal belongings. Butler was aware that Doe was performing in the choral concert immediately following the color-guard presentation and, shortly after the group entered the chorus room, Doe left and went to the restroom to change her clothing. There is a factual dispute as to whether the remaining three students stayed in the chorus room and/or whether Butler inquired as to whether those students intended to leave the School or attend the concert. Regardless, Butler, who was not responsible for attending or supervising the subsequent choral concert, left the chorus room and entered the adjoining gymnasium. 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 concert before he left the School.
Doe alleges that she reentered the chorus room after returning from the restroom and, although the other three color-guard students were there when she initially entered, two eventually left and she was sexually assaulted by the third. She thereafter sued Butler, asserting that his act in leaving the students unsupervised in the chorus room following the color-guard performance resulted in her sexual assault. The trial court denied Butler summary judgment after concluding that he was not entitled to official immunity because he had " an absolute ministerial duty to protect" the color-guard students remaining in the chorus room and his total failure to supervise them constituted a breach of that ministerial duty. This appeal follows.
[328 Ga.App. 433] Georgia law is well established that the " monitoring, supervising, and controlling the activities of students is a discretionary action protected by the doctrine of official immunity."  Contrary to the holding of the trial court, this is true even if the allegations involve a teacher's total failure to supervise the students under his or her care. Indeed, the complete failure to perform a discretionary act is " the same as the negligent performance ...