dissenting.
I must respectfully dissent.
1. As to Division 1 of the majority, as stated in Leake v. Murphy, 274 Ga. App. 219, 224 (1) (617 SE2d 575) (2005) “[i]f the present lawsuit alleged that the defendants had developed an inadequate plan and that the plan’s inadequacies resulted in [the student’s] injury, the defendants would be entitled to official immunity. It is the total absence of any plan which precludes dismissal of the lawsuit.”
As stated in the trial court’s order, although the complaint alleged a failure to produce a safety plan, at oral argument on the motion for judgment on the pleadings, plaintiffs’ counsel “clarified during argument that the allegation is not that there was no school safety plan created, but, instead, that the plan was grossly inadequate.”
Therefore, the Bajjanis are judicially estopped to argue before this Court that, because there is no copy of the safety plan in the record, the case must be reversed pursuant to Leake, supra. See IBF Participating Income Fund v. Dillard-Winecoff, LLC, 275 Ga. 765 (573 SE2d 58) (2002); Glover v. Ware, 276 Ga. App. 759 (624 SE2d 285) (2005).
I believe the Superintendent and members of the Board of Education are clothed with official immunity because deciding on the contents of the plan is discretionary. Leake, supra.
2. Regarding Division 2 of the majority, I believe that Timothy was not within the class of persons sought to be protected by this reporting requirement nor were his injuries the harm sought to be protected against.
The majority states, without citing any authority for the proposition, that “[b]ecause reporting [of] such an incident to the school superintendent, the district attorney, and the police would inexorably lead to the summoning of medical assistance, a jury could find a causal connection between the school personnel’s failure to report the incident and Timothy’s aggravated injuries.”
Such a conclusion, however, is neither logical nor consistent with proximate causation analysis.
An injury or damage is proximately caused by an act or a failure to act whenever it appears from the evidence in the case that the act or omission played a substantial part in *877bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably probable consequence of the act.Decided March 30, 2006 Reconsideration denied April 14, 2006 Carothers & Mitchell, Richard A. Carothers, Cheryl Benton Reid, for appellants.
(Citation omitted.) Ponder v. State, 274 Ga. App. 93, 95 (1) (616 SE2d 857) (2005).
Merely failing to report the assault so that it could be considered in determining whether this school should be deemed “persistently dangerous” for purposes of allowing students to transfer to a safer school could not, as a matter of law, have played a substantial part in Timothy’s injuries.
Therefore, I believe the trial court correctly granted defendants’ motion for judgment on the pleadings on this claim.
3. Regarding Division 3 of the majority, I believe that Teston v. Collins, 217 Ga. App. 829 (459 SE2d 452) (1995), controls. Cantrell v. Thurman, 231 Ga. App. 510 (499 SE2d 416) (1998) cited by the majority, involved the Eighth Amendment, 42 USC § 1983, the State Tort Claims Act, and other legal theories, none of which are involved in this case.
Regarding the Bajjanis’ allegations of actual malice, “ ‘[i]n the context of official immunity, actual malice means a deliberate intention to do a wrongful act [and] such act may be accomplished with or without ill will and whether or not injury was intended.’ Adams v. Hazelwood, 271 Ga. 414, 415 (2) (520 SE2d 896) (1999).” Meagher v. Quick, 264 Ga. App. 639, 645 (3) (594 SE2d 182) (2003). See also Caldwell v. Griffin Spalding County Bd. of Ed., 232 Ga. App. 892 (503 SE2d 43) (1998) (physical precedent only).
I agree with the trial court and appellees that, although it was alleged that the intention of the superintendent and board members was to create an environment that amounted to a dangerous condition, creation of a climate in which injury can occur does not meet the standard for actual malice. Meagher, supra at 645 (3); Caldwell, supra. Nor is there any allegation of deliberate intent to cause harm to Timothy by the principal, assistant principal, and nurse. Therefore, I believe that the grant of the motion to dismiss on this ground was not error.
*878Thompson & Sweeny, E. Victoria Sweeny, Stephen D. Pereira, Davidson & Tucker, Gerald Davidson, Jr., for appellees.