CONCURRING IN RESULT:
I concur in result with the Majority’s opinion. However, with profound respect and. appreciation for the excellent research and writing of Justice Venters, there are some unsettling things about the Majority opinion with which I cannot accept. I fear that we are slowly shifting our mounting societal ills onto the shoulders of our underpaid teachers who are already burdened with trying to teach our young, while at the same time dealing with students who have been emotionally and psychologically damaged from causes outside the classroom.
First, I cannot conclude that the Alen Central Middle School Bullying Policy (the “Policy”), and similar anti-bullying policies throughout our school districts, are ministerial in nature. The duty to report bullying may be ministerial, but determining the existence of the proscribed behavior is a discretionary task. Upchurch v. Clinton County, which was decided in 1959, dealt with a statutory directive for the County to hire a dog warden. 330 S.W.2d 428 (Ky. 1959). Simple enough to follow. In our Marson v. Thomason, decision cited by Majority, it was a simple chore of making sure the bleachers were pulled out. 438 S.W.3d 292 (Ky. 2014). These ministerial acts are- almost mechanical compared to the arduous task of a teacher judging student behavior to determine if he or she is being bullied.
The Policy at issue went well beyond listing specific behavior which constituted bullying and instead provided an overly broad definition. Further inspection of the Policy language reveals that the bullying definition is so broad that it requires teachers to make fact-intensive decisions, and should cloak them in qualified immunity. Indeed, the Policy defines bullying as any form of communication that teases, *738mocks, or is “rude/negative/hurtful/off col- or. ..Our interpretation of this Policy confers upon the teachers a duty to report even the most minuscule infraction, or worst yet, a suspected infraction. In our opinion here today, we afford the administrators a safe haven of qualified immunity. In not extending the same protection to the teachers, we are encouraging an unworkable school environment. Desk generals may draw up exact and precise instructions for the foot soldiers, which in the class rooms and hallway prove impractical. Such directives so easily drawn, protect the administrators from lawsuits. But they are unworkable, unless teachers use- common sense and discretion in their implementation. Through this process, teachers are thrown under the bus, unless they follow these instructions in such an exacting way that will prove catastrophic to the smooth and orderly working of a school day.
If every teacher cited to the principal’s office every high school student who hit someone in the hallway, no matter how jokingly; grabbed someone in the hallway; pinched someone in the hallway; twisted arms in the hallway; pushed or shoved someone in the hallway; flipped, threw or tossed paper wads at another student in the hallway; poked or punched someo'ne in the hallway; or hid the Mad magazine of another student; there would not be a high school football- team in Kentucky that wasn’t on probation.
Teenage youngsters are not robots, moving about the classrooms, hallways, school yards or gym in drill-like precision. They are full of vim, vigor and bursting with energy screaming to be released from an hour of confinement in a geometry classroom.
Kids can either be cruel, or. jokingly engaging in good natured ribbing with a good friend. Sometimes therp is a thin line between .the two. Discretiop is required.
Bullying is defined by the U.S. Department of Health and Human Services as the “repeated” and “unwanted, aggressive behavior among school aged children that involves a real or perceived power imbalance.” U.S. Dep’t of Health & Human Servs., What Is Bullying: Bullying Definition, stopbullying.gov, ■ http://www. stopbullying.gov/what-is-bullying/ definition/index.html (last, visited Nov. 23, 2016): I would submit that under this broad based, definition, much discretion is mandated. The definition in this case attempts to be more specific, but in doing so encompasses conduct which almost every young student will exhibit in some form during the course of any school day. If we impose a ministerial duty on teachers in this respect they will have no time to teach; rather they will be obsessed with the fear of lawsuits hovering over their every áct and every decision.
In the real world, teachers likely only report the serious infractions, such as verbal or physical intimidation and abuse. Since any bullying policy will inherently recognize a hierarchy of bullying behavior, it requires the teachers to “exercise [ ] discretion and judgment, or personal deliberation” whether or not such behavior is severe enough to report. Yanero v. Davis, 65 S.W.3d 510, 522 (2001). In doing so, the teachers are left .with “a legally uncertain environment.” Id. We must keep in mind that insuring student safely is “situation specific, and ... requires judgment rather than a fixed, routine performance.” Marson, 438 S.W.3d at 299.
The examination of the discretionary or ministerial functions of these types of policies is “inherently fact-sensitive.” Haney v. Monsky, 311 S.W.3d 235, 246 (Ky. 2010). In the case before us, the Policy not only included the catch all “rude/negative/hurt-*739fuVoff color" comments, but also specified that “hitting, grabbing ... pushing ... [and] hiding or damaging another student’s property” is bullying.
There are other conclusions in the Majority, which give me pause.
I am troubled with concluding that administrators supervise teachers and not students. Unless things have changed drastically since the dark ages when this writer was in school, the principal still gazes out with intense supervision over every school assembly, proms, and athletic contests. That’s not to mention the preeminence of the school warden patrolling the hallways on a regular basis.
Furthermore, we should go ahead and provide our teachers the protection which our U.S. Congress intended them to have with the enactment of the Paul D. Cover-dell Teacher Protection Act of 2001, 20 U.S.C. §§ 6731 et seq. The part germane to this case reads “[N]o teacher, administrator, or individual member of a school board is liable for harm to a student if he was acting within his scope of employment, and the actions complied with the law and were in an effort to discipline a student or maintain control.” Id. (citing 20 U.S.C. §§ 6733(6)(A), 6733(6)(D), 6736(a)(l)-(2)).
Lastly, there is the searing and most tragic of all tragedies—teenage suicide. It is both a heart breaking and unfathomable occurrence that baffles our communities and homes with soul numbing despair. As our hearts break, we strive to understand this tragedy of all tragedies. But alas, we stand mute and witless to any answer. In spite of the excellent analysis written by the Majority in this case, I am not ready to say that in cases such as this, it is not, as the trial judge found, a superseding intervening cause interrupting any potential liability of the administrators and teachers alike.
For these reasons, I respectfully concur in result only with the Majority opinion.
ORDER DENYING PETITION FOR REHEARING AND GRANTING MODIFICATION OF OPINION
The Petition for Rehearing filed by the Appellant, Floyd Lawrence Patton, as Administrator of the Estate of Stephen Lawrence Patton, rendered March 17, 2016, is DENIED, and the Opinion of this Court is modified by substitution of the attached Opinion in lieu of the original Opinion of the Court. Said modification does not affect the holding of the original Opinion of the Court.
Minton, C.J.; Hughes, Keller, Venters; and Wright, JJ., concur.
Cunningham concurs in result only by separate opinion.
VanMeter,. J,, not sitting.