McDowell v. Smith

BENHAM, Justice,

dissenting.

I respectfully dissent from the majority’s opinion because I believe Ms. McDowell is entitled to official immunity. The majority opinion dismisses longstanding precedent that “ ‘[m]onitoring, supervising, and controlling the activities of students is a discretionary action protected by the doctrine of official immunity.’ ” Leake v. Murphy, 274 Ga. App. 219 (2) (617 SE2d 575) (2005), overruled on other grounds, Murphy v. Bajjani, 282 Ga. 197 (647 SE2d 54) (2007). Leake is directly applicable to the case at bar. After an incident where a random man entered the school, the school adopted a policy whereby a person was required to stand in the lobby and make sure visitors entering the school signed in at the administration office which was adjacent to the lobby. In addition, the policy required the principal and her two staffers to monitor persons in the lobby by watching the lobby area from the glassed-in administrative office. The policy was in place for a year before the incident giving rise to the suit occurred. On the day of the incident leading to the suit, a mentally-ill man entered the school and severely injured a child. In contravention of the policy, there was no one stationed in the lobby to monitor visitors and the principal and her two staffers also failed to monitor the area from their office. The Court of Appeals held that the principal and her two staffers had official immunity because, although there was a stated policy in place, they could not be held liable for the complete failure to perform a discretionary act. Id. at 226. See also Reece v. Turner, 284 Ga. App. 282 (1) (643 SE2d 814) (2007) (“decisions concerning the supervision of students and school personnel are considered discretionary, ‘even where specific school policies designed to help control and monitor students have been violated.’ ”) (citations omitted); Perkins v. Morgan County School Dist., 222 Ga. App. 831 (2) (476 SE2d 592) (1996) (a discretionary duty is not transformed into a ministerial duty simply because a rule or policy has been promulgated concerning the discretionary activity); Chamlee v. Henry County Bd. of Ed., 239 Ga. App. 183 (1) (521 SE2d 78) (1999) (“Supervision of students is considered discretionary even where specific school policies designed to help control and monitor students have been violated.”).

Monitoring and supervising students includes checking them in and out of school. Perkins v. Morgan County School Dist., supra, 222 *596Ga. App. 831. See also Wright v. Ashe, 220 Ga. App. 91 (469 SE2d 268) (1996) (enforcement of policies regarding students leaving campus is discretionary). As such, Ms. McDowell’s failure to adhere to the check-out policy was a failure to perform a discretionary act for which she cannot be held liable. Leake, supra, 274 Ga. App. at 226. Holding otherwise has the effect of deterring nonsupervisory employees from working in schools, and other state government positions, for fear of being sued for missteps in following policies designed to perform discretionary acts.1

Decided June 29, 2009. Claxton & Claxton, William P. Claxton, Darcy Sue DuVal, for appellant.

Here, Ms. McDowell attempted to adhere to what she believed was the proper policy and procedure, but was hindered by a series of routine omissions. She could not find a warning about releasing the child to the father because another coworker had not entered the warning into the computer; she could not locate the child’s information card because she had not been made aware of a new filing system; and she could not locate an administrator for consultation. Ms. McDowell was also the victim of a fraud. Now, because of the day-to-day vagaries of running an office and because we have the benefit of hindsight to critique the breakdown of policy, Ms. McDowell, a school receptionist, stands to take the brunt of personal liability for this unfortunate incident. This result is in contravention of the official immunity doctrine that all state agents, no matter their status, are immune from liability for discretionary acts performed in the scope of their authority. Id. (principal and staff people had official immunity although policy was not followed); Chamlee v. Henry County Bd. of Ed., supra, 239 Ga. App. at 184 (automotive shop instructor supervising students fixing cars had official immunity although policy was not followed); Payne v. Twiggs County School Dist., 232 Ga. App. 175, 177 (2) (501 SE2d 550) (1998) (because supervising students is a discretionary act, the principal and bus driver were entitled to immunity for failure to enforce weapons policy). Accordingly, I would reverse the judgment by the Court of Appeals and reinstate the grant of summary judgment in favor of Ms. McDowell.

*597Kirk J. Post, Shiv K. Kapoor, David S. Bills, for appellee.

Alternatively, supervisory employees such as principals, vice principals, and department heads will be forced to perform such tasks as checking students in and out throughout the day, to the detriment of more salient concerns, in order to avoid liability.