concurring specially.
I concur in the judgment based on the following.
The incident involved in this case has been before the Court before. In Pennsylvania Millers Mut. Ins. Co. v. Crews, 184 Ga. App. 492 (361 SE2d 657) (1987), summary judgment for the parent was upheld in the declaratory judgment action brought by the school board’s liability insurer. The basis for the holding was that the policy exclusion for bodily injury expected or intended by insured did not apply and consequently there was coverage. The factual premise was that, as the Court stated, “[The child] was injured while being paddled . . . when he twisted to avoid a second ‘lick’ of the paddle.”
Thus it appeared that the broken arm resulted from what the child did and not from what the principal was authorized to do, inflict *565a paddling. Paddling was of course intended, and paddling of course inflicts injury, albeit minimal factually and acceptable legally, but paddling was not the injury complained of. The broken arm occurred when the child acted to get out of the hold of the principal, whose arm-holding activity carried with it no intention to harm.
Now we move to the tort action brought by the parent in his individual and next friend capacities. Without comparing the records in the two cases, it appears that the present record contains conflicting evidence with regard to how the arm became broken.1 The principal says the child twisted and dropped while he was holding the child’s wrist to prevent him from protecting his buttocks, which sudden twisting and dropping resulted in the break. The child says that after the first swat he dropped to his knees and the principal “jerked” him up off the floor by the arm, breaking it at that time.
The law provides that the principal is not liable in a “civil action based upon the administering of corporal punishment where the corporal punishment is administered in good faith and is not excessive or unduly severe.” OCGA § 20-2-732. Plaintiff does not contend that the paddling itself was excessive or unduly severe. One swat of a two-swat punishment had been administered for repeated homework deficiencies. The principal showed as a matter of law that the punishment was administered in good faith, that is, there was a valid reason for it and the established procedures for corporal punishment were followed; no contrary evidence was offered.
Before the principal could be liable, a jury would have to first find that the arm broke because the principal jerked him up after he dropped to avoid or delay the second swat. If he jerked him more roughly than necessary, and the jerking or yanking or snatching up was done in such a way as to be part of the punishment, a jury could find that it was “excessive or unduly severe” in the contemplation of the statute. Without hearing or seeing the conflicting witnesses, lack of excessiveness or undue severity cannot be established as a matter of law in this case, given the evidence.
There was a genuine dispute over what action by whom resulted in the break, which was a material fact as related to the issue of the principal’s civil liability. He was therefore not entitled to summary judgment. OCGA § 9-11-56 (c).
Deposition of the child was taken after the appellate decision in the declaratory judgment action. Although there is some indication a second deposition of the principal was taken at about the same time, only his earlier 1985 deposition is in the record.