Opinion
NO. 2011-CA-001898-MR
04-19-2013
SCOTT BROWN AND DAVIDA HATFIELD-PATTERSON APPELLANTS v. S.F., AS NEXT FRIEND AND GUARDIAN OF W.S.F., A MINOR APPELLEE
BRIEFS FOR APPELLANTS: C. Tom Anderson Pikeville, Kentucky BRIEF FOR APPELLEE: Adam P. Collins Hindman, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE, III, JUDGE
ACTION NO. 09-CI-00413
OPINION
REVERSING AND REMANDING
BEFORE: CLAYTON, LAMBERT, AND VANMETER, JUDGES. LAMBERT, JUDGE: Scott Brown and Davida Hatfield-Patterson ("the defendants" or "the appellants") have appealed from the interlocutory order of the Perry Circuit Court denying their motion for summary judgment of dismissal related to their claim of qualified official immunity. The circuit court denied the motion, holding that disputed issues of material fact existed. Because we agree with the appellants that no disputed issues of material fact existed and that the circuit court erred in concluding their actions related to supervision were ministerial, we reverse the interlocutory order.
In July 2009, S.F., as next friend and guardian of his minor grandson, W.S.F., ("the child") filed a complaint seeking compensatory and punitive damages from the Perry County Board of Education and School System ("the Board of Education"); Scott Brown, both individually and in his official capacity; and Davida Hatfield-Patterson, both individually and in her official capacity. Brown is the principal of the elementary school where the child was a student during the 2008-2009 school year, and Patterson was his teacher. The claim arose from an incident on May 14, 2009, when the child was injured by another student on school grounds during a bathroom break. The other student, D.B., kicked the child in the groin, ultimately resulting in the loss of his left testicle. S.F. claimed that the defendants breached their duties to provide proper monitoring and administrative supervision to ensure that the children were not injured. S.F. specifically alleged that he had complained to school officials that the child had been bullied and assaulted on school grounds, but the defendants had ignored his warning and took no action to remedy the situation.
We shall refer to the plaintiff and children involved in this case using initials in an attempt to protect their privacy.
The three defendants, the Board of Education, Brown, and Patterson, immediately moved to dismiss the complaint on the basis of governmental immunity. They argued that Brown and Patterson were entitled to governmental immunity for all acts taken in their official capacities, arguing that monitoring and administrative supervision were discretionary functions, rather than ministerial functions, and that any claim against the Board must be asserted in the Board of Claims. In addition, the defendants argued that they were entitled to qualified official immunity in their individual capacities as a matter of law, citing Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), because no factual issues needed to be decided. The court only had to determine as a matter of law whether the complained of activity was discretionary or ministerial.
In response, S.F. argued that the supervision of school children and providing those children with medical treatment are ministerial actions, not discretionary. Therefore, he argued that the defendants were not entitled to either official or qualified official immunity. However, S.F. stipulated that his claims against the Board of Education should be dismissed pursuant to the doctrine of governmental immunity.
By order entered September 28, 2009, the circuit court granted the motion to dismiss as to the Board of Education, but denied the motion as to Brown and Patterson, both in their official and individual capacities. In reaching this decision, the court stated "that the act of supervising school children [and] providing for their safety while on the school campus is a ministerial act under prevailing case law, and this Court retains jurisdiction to hear those claims."
Based upon later filings, orders, and statements by the circuit court and parties, it is apparent that the circuit court intended to dismiss Brown and Patterson in their official capacities and permitted the case to continue against them in their individual capacities.
The defendants filed an answer, continuing to maintain that they were entitled to official and qualified official immunity as a defense to the allegations in the complaint and that S.F. failed to state a claim upon which relief could be granted, and the parties began discovery. Later, the circuit court ordered the case to be mediated no later than August 2011 (which was ultimately unsuccessful) and scheduled a trial date for later that year.
In accordance with the scheduling order, the parties filed their respective witness and exhibit lists, disclosures, and pre-trial motions, and pre-trial briefs pursuant to the scheduling order. S.F. moved for a partial summary judgment on causation of the child's injuries, to which the defendants objected in part. By order entered October 3, 2011, the court granted the motion as to causation of the injury to his left testicle, but denied it as to his right testicle and psychological issues. The defendants moved the circuit court to exclude evidence of a claim for failure to provide medical treatment, noting that the claim was not pled in the complaint and any mention was too indirect to put defense counsel on notice of the claim. At that time, S.F. had not filed a motion to conform the pleadings to the proof pursuant to Kentucky Rules of Civil Procedure (CR) 15.02, and recent medical depositions had been the first time his intention to add a claim became clear. S.F., in turn, moved the circuit court to conform the pleadings to the proof and filed a response to the defendants' motion to exclude evidence. S.F. argued that his intention to bring this as a claim was clear from the beginning, referencing his response to the motion to dismiss and answers to interrogatories, both filed in 2009. By separate order entered October 3, 2011, the court set these issues for a hearing on October 7, 2011. The record does not contain the recording of this hearing. On October 14, 2011, the court granted S.F.'s motion to conform his pleadings to the proof and denied the defendants' motion to exclude evidence of a claim for failure to provide adequate medical treatment. None of these rulings are before this Court. The certificate of service for the appellants' notice of appeal shows that it was served on October 11, 2011, and filed on October 14, 2011.
Pertaining to the subject matter of this appeal, the defendants filed a motion for summary judgment in August 2011. In the motion, the defendants set forth the undisputed facts as established through discovery as well as the Board of Education's policies related to supervision and safekeeping of students. These included policies for progressive discipline methods. Because there was no argument that they had acted outside of their roles as teacher and principal and because the acts complained of occurred on school grounds and in furtherance of the educational process, the defendants asserted that they were entitled to qualified official immunity for their conduct. As in the motion to dismiss filed early in the case, the defendants argued that they were engaged in discretionary acts and should be afforded immunity. They pointed out that while discipline and supervision is mandatory, the policies left the specific methods to the discretion of the teacher. In support, the defendants cited to a case that had been rendered a few months prior, Turner v. Nelson, 342 S.W.3d 866 (Ky. 2011), in which the Kentucky Supreme Court confirmed that teachers act in a discretionary manner when they supervise their students. Affidavits attached to the motion from Brown and Josh Baker, the current principal of elementary school, established that no formal discipline processes had been started or requested for the child or the student who assaulted him, or any requests from the child's family to investigate or discipline the other child for bullying or threats against the child. Brown added that he believed the classroom teacher had taken some informal discipline measures. Brown also stated that the school did not have a policy in place regarding bathroom procedures or supervision of students while in the bathroom. He stated, "such practices were left to the classroom teacher to supervise in their discretion."
In response to the motion, S.F. detailed the events that took place surrounding the claims, including prior reports, the incident itself, and the child's care at the school after the injury. S.F. specifically stated that had the school taken the proper action to inform him of the incident or ensure that the child had received the proper medical treatment, he might not have lost his left testicle. S.F. continued to argue that supervision and providing the students with medical treatment are both ministerial acts, citing Williams v. Kentucky Dep't of Educ., 113 S.W.3d 145 (Ky. 2001). He contended that the defendants failed to supervise or take action to protect the child and failed to provide him access to proper medical treatment. This failure to act distinguished the holding in Turner, which related to the means of supervision, rather than a failure to supervise, as he claimed was the case here. S.F. pointed out that the court had already addressed this issue in ruling on a previous motion to dismiss, and that the present motion argued the same case law, with the exception of adding the citation to Turner.
The defendants did not raise or address the issue of failure to provide medical treatment in their motion for summary judgment.
The circuit court heard arguments from the parties on September 23, 2011. The defendants argued that they were entitled to qualified official immunity, stating that Patterson's acts related to supervising her students was wholly within her discretion. Patterson's practice for the bathroom break supervision was to stand outside of the open door of the boys' bathroom, where she could see the doors of the stalls, but not the urinals. This would allow her to know what was going on without having to go into the bathroom. She did not have problems with the girls during bathroom breaks, so she focused her attention on the boys. In the time before the incident, there were allegations about D.B.'s behavior and whether the school officials addressed his behavior. The evidence established that these issues were addressed through various disciplinary methods, including notes to home and moving his seat. The defendants contended that they did act, and are therefore entitled to immunity, as opposed to S.F.'s allegation that they took no action. Rather, the defendants contend that S.F. is arguing that they did not do enough. They continued to rely on the holding in Turner to support their argument. The method used, and whether another would have been better, would be an issue to be raised before the Board of Claims. Williams, relied upon by S.F., was distinguishable, in part because it arose out of a Board of Claims negligence action. The defendants went on to discuss other immunity cases, and noted that in order to decide whether an action is discretionary or ministerial, the court must identify the dominant nature of the action being criticized. Here, that action was supervision, which has been held to be discretionary. Because the defendants took action, they were entitled to immunity.
In response to the defendants' argument, S.F. continued to argue that this was a failure to supervise case because the child was not being supervised when he was injured. He stated that there was a non-discretionary duty to supervise students at all times and to provide needed medical treatment. S.F. argued that his allegation that the child was not properly supervised is a question of fact for the jury. S.F. agreed teachers have discretion about how to supervise, but supervision is mandatory. The defendants contended that they definitely acted. Regarding the failure to provide medical care, they asserted that the claim was not pled and requested a continuance. S.F. then argued that it was a question of fact whether the defendants were supervising the students (as the defendants argued) or not (as S.F. argued).
Upon questioning by the court, the defendants stated that immunity is a question of law the court must decide. After reviewing Turner for a second time, the court denied the appellants' motion, noting a factual distinction between this case and Turner. In Turner, the court noted that complaints were made two or three times, and the school took action. Here, complaints were made, but nothing changed in terms of the method of supervision. Therefore, the court concluded no action was taken and found these to be ministerial acts, but acknowledged that the law was in such a state that it was difficult to determine what the differences in the holdings from case to case actually were. The court held that under these circumstances, where it was not entirely clear, the best result was to deny the motion for summary judgment. The court directed that the written order should state that the act was ministerial, that S.F. was alleging that there was no supervision, and that there were disputed issues of material fact.
By order entered October 7, 2011, the circuit court denied the defendants' motion for summary judgment, finding "that there do exist genuine issues of material fact[.]" This interlocutory appeal, taken by the defendants (now appellants) pursuant to Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883 (Ky. 2009), follows.
On appeal, the appellants contend that no genuine issues of material fact exist. They also argue that they are entitled to the protection of qualified official immunity as a matter of law because they were exercising a discretionary function in supervising the students and in sending the child to the nurse's office. S.F., on the other hand, contends that whether there was a failure to supervise, as opposed to an issue with the manner of supervision, is a question of fact that must be determined by a jury, and that there is evidence establishing that there was no adequate supervision being provided when the child was injured.
The appellants have moved that any citation or argument based upon Marson v. Thomason, 2010-CA-002319-MR (Ky. App. 2012), be stricken from S.F.'s appellee brief both because it was unreported and was not final. We note that the Supreme Court of Kentucky accepted discretionary review in Marson on February 13, 2013. Accordingly, we shall not consider any references to Marson.
In Lewis v. B&R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001), this Court set forth the applicable standard of review in summary judgment appeals.
The standard of review on appeal when a trial court grants a motion for summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." The trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present "at least some affirmative evidence showing that there is a genuine issue of material fact for trial." The trial court "must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists." While the Court in Steelvest[, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991),] used the word "impossible" in describing the strict standard for summary judgment, the Supreme Court later stated that that word was "used in a practical sense, not in an
absolute sense." Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo. [Citations in footnotes omitted.]
Before we address the merits of this appeal, we note that our review of the record in this case establishes that the circuit court has never considered the immunity issue in relation to S.F.'s claim that the child did not receive proper medical treatment. Rather, only the supervision issue was before the court in the appellants' motion for summary judgment and argued by the appellants at the September hearing. In fact, the appellants moved for a continuance based upon S.F.'s discussion of this claim during the hearing. Furthermore, the court's oral remarks only addressed the supervision claim. After the court ruled on the appellants' motion for summary judgment, the parties went on to discuss other issues, including whether the evidence regarding a claim for failure to receive proper medical treatment should be permitted. The court did not rule on that issue that day, but scheduled a hearing for a later date and permitted additional briefing. The appellants had already served their notice of appeal before the orders had been entered, which permitted S.F. to proceed with his claim for failure to provide proper medical treatment. This Court is not aware if the court and the parties discussed the immunity issue at the October 7, 2011, hearing because no recording of that hearing was designated or included in the certified record. Accordingly, any review by this Court of arguments related to immunity from the failure to provide medical treatment claim is premature because it has not yet been brought before or decided by the circuit court. Therefore, we shall confine this opinion to the supervision issue.
Our first consideration is whether any disputed issues of material fact exist related to supervision. While the appellants state that the circuit court did not specify what issues of fact were disputed, we note that the court's oral statements during the hearing indicate that the disputed factual issue related to whether the students were being properly supervised or disciplined, specifically related to the behavior issues of D.B. and the ensuing incident in the bathroom. The appellants contend that only two issues were in dispute, but that they were not material. One of these issues addressed whether S.F. notified the school about D.B.'s behavior and asked that he be supervised; the appellants contend that this is not material because they were already aware of D.B.'s behavior, and Patterson was implementing measures to address it. We agree with the appellants that this factual dispute is not material. We also disagree with the circuit court's conclusion that because D.B.'s bad behavior continued and the school's methods did not apparently change, it naturally followed that no action was taken. Rather, the appellants produced undisputed evidence that they (certainly Patterson) were addressing D.B.'s behavior problems by separating him from other students in the classroom, including the child; sending notes home; and placing him in "time-out."
One addressed the failure to provide medical treatment claim - specifically, whether Patterson knew the child had been kicked in the groin and if so failed to report to this to the nurse - which we have already held is not properly before this Court.
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In his brief, S.F. contends that "there is certainly evidence that shows there was no adequate supervision provided at the time of [the child's] injuries." Because Patterson testified that she had to monitor both the girls' and the boys' bathrooms, S.F. argues that Patterson was therefore not supervising the boys' bathroom when the child was injured. Based upon this testimony, S.F. argued:
At the time of the assault, there were no adults in or near enough to the boy's restroom to supervise the children, as Patterson was not at the door or at least not in a position to be able to see and/or hear them at that time. Thus, [the child] was left alone with an aggressive child with a known predisposition to harm him. The children were not being properly supervised as they were beyond Patterson's eyesight and earshot, such that she was unable to perceive or intervene in the attack, or even to know about it after it occurred.The appellants argue that there is no support for S.F.'s position in the record, and we must agree. Patterson, a female teacher, testified that she would stand outside of the open boys' bathroom door where she could see the stalls, but not the urinals, so as not to violate the boys' privacy. While she also had to monitor the girls' bathroom down the hallway, she spent the majority of her time monitoring the boys' bathroom because she did not have any problems with the girls during bathroom breaks. S.F. has not established that Patterson was away from the boys' bathroom when the incident took place. In fact, the child testified at his deposition that the incident took place where the hand dryer was located and that Patterson could not see them. This does not indicate that she was not standing outside of the boys' bathroom door, as was her general method of supervising their bathroom breaks. Accordingly, S.F. has not presented evidence to establish that Patterson was not supervising the students when the incident took place, and the circuit court improperly held that issues of material fact existed.
While this would generally end our inquiry, especially in light of the language in the written order, we know from the recording of the hearing and the 2009 order partially denying the motion to dismiss that the court held that the act in question was ministerial, and that therefore the appellants would not be entitled to the protection of qualified official immunity. Rather than remand this matter for the court to rule on this issue of law, we shall address it in this opinion.
The Supreme Court's opinion in Yanero v. Davis is the seminal case on sovereign immunity in the Commonwealth. On the issue of official immunity, the Court instructs:
"Official immunity" is immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions. It rests not on the status or title of the officer or employee, but on the function performed. Salyer v. Patrick, 874 F.2d 374 (6th Cir. 1989). Official immunity can be absolute, as when an officer or employee of the state is sued in his/her representative capacity, in which event his/her actions are included under the umbrella of sovereign immunity as discussed in Part I of this opinion, supra. Similarly, when an officer or employee of a governmental agency is sued in his/her representative capacity, the officer's or employee's actions are afforded the same immunity, if any, to which the agency, itself, would be entitled, as discussed in Part II of this opinion, supra. But when sued in their individual capacities, public officers and employees enjoy only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in aYanero, 65 S.W.3d at 521-22. "Ultimately, however, once the material facts are resolved, whether a particular defendant is protected by official immunity is a question of law, Jefferson County Fiscal Court v. Peerce, 132 S.W.3d 824, 825 (Ky. 2004), which we review de novo. Estate of Clark ex rel. Mitchell v. Daviess County, 105 S.W.3d 841, 844 (Ky. App. 2003)." Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006). There is no dispute that Patterson or Brown did not act in bad faith or were not acting within the scope of their duties as teacher and principal. Therefore, the only issue to decide is whether the act of supervision was discretionary or ministerial. Based upon the law in the Commonwealth, we hold that the acts in question were discretionary and that the appellants were entitled to the protection of qualified official immunity related to their supervision.
legally uncertain environment. 63C Am.Jur.2d, Public Officers and Employees, § 309 (1997). Qualified official immunity applies to the negligent performance by a public officer or employee of (1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment, id. § 322; (2) in good faith; and (3) within the scope of the employee's authority. Id. § 309; Restatement (Second) Torts, supra, § 895D cmt. g. An act is not necessarily "discretionary" just because the officer performing it has some discretion with respect to the means or method to be employed. Franklin County v. Malone, supra, at 201 (quoting Upchurch v. Clinton County, Ky., 330 S.W.2d 428, 430 (1959)). Qualified official immunity is an affirmative defense that must be specifically pled. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980).
Conversely, an officer or employee is afforded no immunity from tort liability for the negligent performance of a ministerial act, i.e., one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts. Franklin County v. Malone, supra, at 201. "That a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in nature." Upchurch v. Clinton County, supra, at 430. See also Restatement (Second) Torts, supra, § 895D cmt. h; 63C Am.Jur.2d, Public Officers and Employees, §§ 324, 325 (1997).
As noted, S.F. relies upon Williams v. Kentucky Dep't of Educ. to support his argument that supervision is a ministerial act. The Williams case arose out of a wrongful death action brought in the Board of Claims following an automobile accident when the students should have been at a school-sponsored extracurricular activity at school. The suit alleged that the high school faculty was negligent in supervising the activity. The Supreme Court stated:
It is well established in this jurisdiction that a school teacher can be held liable for injuries caused by negligent supervision of his/her students. Yanero v. Davis, Ky., 65 S.W.3d 510, 529 (2001); Wesley v. Page, Ky., 514 S.W.2d 697, 699 (1974) ("The very adventuresome nature of teenagers leads to experimentation and should place a teacher on notice that he can look forward not only to the expected but also to the unexpected."). The basic premise for this duty is that a child is compelled to attend school so that "the protective custody of teachers is mandatorily substituted for that of the parent." Yanero, supra, at 529 (quoting McLeod v. Grant County Sch. Dist. No. 128, 42 Wash.2d 316, 255 P.2d 360, 362 (1953)). The "special relationship" thus formed between a school district and its students imposes an affirmative duty on the district, its faculty, and its administrators to take all reasonable steps to prevent foreseeable harm to its students. Leger v. Stockton Unified Sch. Dist., 202 Cal.App.3d 1448, 249 Cal.Rptr. 688, 693-94 (1988); Doe Parents No. 1 v. State, Dep't of Educ., 100 Hawai'i 34, 58 P.3d 545, 590-Williams, 113 S.W.3d at 148 (footnote omitted). The Court further addressed the requirement that a teacher must supervise his or her students:
92 (2002); Eversole v. Wasson, 80 Ill.App.3d 94, 35 Ill.Dec. 296, 398 N.E.2d 1246, 1247 (1980); McLeod, supra, at 362-63; cf. Lane v. Commonwealth, Ky., 956 S.W.2d 874, 876-82 (1997) (Cooper, J., concurring).
We disagree with the Board of Claims' conclusion that a teacher's duty to supervise students is a "regulatory" (discretionary?) function. Promulgation of rules is a discretionary function; enforcement of those rules is a ministerial function. Yanero, 65 S.W.3d at 529. See also KRS 161.180(1):Williams, 113 S.W.3d at 150-51.
Each teacher and administrator in the public schools shall in accordance with the rules, regulations and bylaws of the board of education made and adopted pursuant to KRS 160.290 for the conduct of pupils, hold pupils to strict account for their conduct on school premises, on the way to and from school, and on school sponsored trips and activities.Pursuant to KRS 160.290, the Floyd County Board of Education had adopted a Code of Conduct that identified, inter alia, the following behavior violations that would subject a student to disciplinary action: non-attendance of class; leaving school grounds without permission; and use or possession of alcohol at any time "during the entire school day, to and from school, on school buses, and all school sponsored activities." Another section of the Code of Conduct charged teachers with the responsibility to "enforce rules and regulations of the Board of Education." Compliance with this directive was a ministerial, not a discretionary or regulatory, function.
The appellants cite to Turner to support their argument that their actions were discretionary, not ministerial, as S.F. argued. Turner was a kindergarten teacher in the Fayette County school system who was sued by the parent of one of her five-year-old students. The student had allegedly been sexually abused by another student in the classroom. Nelson claimed that Turner failed to exercise ordinary care to supervise her students or report the assault to law enforcement officials. The Supreme Court detailed Turner's actions related to the incident:
[I]n furtherance of the call from Nelson and F.B.'s subsequent comment to her, Turner separated F.B. and C.Y. in the classroom, directed that they not be together during school, and explained to C.Y. that such touching was inappropriate, although she believed from all she knew and had discovered that that the incidents were the childish pranks of giving one another "wedgies" and yelling "up your butt!" For further assurance, she also informed her teaching assistant of the incident and of her plan to keep the children apart. And, after F.B. told her that C.Y. had been "up [her] butt" again, she took C.Y. aside, discussed what had occurred, and tried to find the principal or a counselor that day, which she did not. She was not advised of any later incident by F.B. or her mother.Turner, 342 S.W.3d at 875-76. The Court then held as follows:
Relying upon our rationale in Stratton and Haney, we consider Turner's actions in supervising the children to have been discretionary. While there may be legitimate disagreement as to the approach taken by Turner, the consequences of liability under such circumstances would injuriously "deter independent action and impair the effective performance of [teaching] duties." Id. at 245.Id. at 876. Finally, addressing earlier decisions holding otherwise, the Supreme Court explained:
It is imperative that teachers maintain the discretion to teach, supervise, and appropriately
discipline children in the classroom. To do this, they must have appropriate leeway to do so, to investigate complaints by parents, or others, as to the conduct of their students, to form conclusions (based on facts not always known) as to what actually happened, and ultimately to determine an appropriate course of action, which may, at times, involve reporting the conduct of a child to the appropriate authorities. In fact, protection of the discretionary powers of our public officials and employees, exercised in good faith, is the very foundation of our doctrine of "qualified official immunity."
Although we consider Turner's conduct in this case to be discretionary, we recognize the apparent incongruity with our precedent regarding a supervisory duty in the public school setting, as "we have held that a claim of negligent supervision may go to a ministerial act or function in the public school setting." Id. at 244. However, Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001) and Williams, 113 S.W.3d 145—the cases relied upon in enunciating the public school distinction—have quite different facts from those before us. Id.Turner, 342 S.W.3d at 876-77 (emphasis in original).
In Yanero, this Court deemed "enforcement of a known rule requiring that student athletes wear batting helmets during baseball batting practice" to be ministerial. 65 S.W.3d at 522. Unlike the teacher's decision-making in this case, a helmet requirement constitutes "an essentially objective and binary directive." Haney, 311 S.W.3d at 242 (discussing Yanero, 65 S.W.3d 510). As a result, "[t]here is no substantial compliance with such an order and it cannot be a matter of degree: its enforcement was absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts." Id. (citation omitted) (internal quotation omitted). You do it or you don't—and unlike here, there is no factual determination required for its application.
Admittedly, we have also "rejected the notion that the failure of teachers ... to supervise their students in the face of known and recognized misbehavior was a discretionary act." Id. at 244 (discussing Williams, 113 S.W.3d at 150). This decision stemmed from the requirement in KRS 161.180(1) that teachers must "hold pupils to strict account for their conduct on school premises, on the way to and from school, and on school sponsored trips and activities." Id. The dispute in this case, though, concerns the means of supervision rather than a failure to supervise students who were drinking and driving to and from a school-sponsored function as occurred in Williams.
We hold that the situation in the present case is analogous to that in Turner and that the facts in Williams are distinguishable from the facts in the present case. Here, the appellants were not merely enforcing a rule, but were actually using discretion and judgment in the method of supervising the children in the bathroom and in addressing the disciplinary problems with D.B. Regarding the duty to supervise, Policy 03.233 states that "[a]ll employees are expected to use sound judgment in the performance of their duties and take reasonable measures to protect the health, safety, and well-being of others, as well as District property." Policy 09.221 relates to the supervision of students, stating that "[s]tudents will be under the supervision of a qualified adult" and that "[e]ach teacher and administrator shall hold pupils to a strict account for their conduct on school premises[.]" As the appellants point out, there were no school policies related to bathroom break supervision, meaning that the teachers had to use their own judgment in accomplishing this task, as Policy 03.233 required them to do.
The appellants also followed the policies related to discipline. Policy 09.42 provides that the principal "shall be responsible for administration and implementation of the Code [of Acceptable Behavior and Discipline] within each school" and "shall set school policy concerning the selection and implementation of appropriate discipline and classroom management techniques necessary to carry out the Code." Policy 400.23 addresses standards for supervising students and provides:
Each teacher and administrator in Perry County Schools shall hold students to strict account for their conduct on school premises, on the way to and from school and on school sponsored trips and activities. This supervision shall include the area, but not limited to, the playground, hallway, lunchroom and cafeteria, recreational activities and athletic events. The teacher shall supervise and control students in the classroom at all times.The student handbook contains a section implementing discipline policies, and both defines the rules students are expected to follow and the resulting disciplinary results for failure to abide by the rules. As the appellants state, the disciplinary methods are progressive, and provide a range of punishments from extra school work, detention, verbal warnings, and suspension. Policy 09.425 addresses assault and threats of violence and states that "[a]ny pupil who threatens, assaults, batters or abuses another pupil shall be subject to appropriate disciplinary action, including suspension or expulsion."
Learning takes place best under conditions of optimum behavioral patterns of pupils as controlled by authorized personnel. We support disciplinary methods which not only preserve an atmosphere conducive to learning but which have as their prime consideration the development of codes of behavior that are consistent with society's fundamental goals.
Although the school's influence on student behavior is important, we believe that the primary responsibility for shaping young people's behavior attitudes belongs to their parents. Further, as a means of developing a sense of individual maturity and social responsibility, students should assist teachers and
administrators in establishing codes of behavior at school.
The undisputed facts of this case in conjunction with the school's policies establish that the issue in this case is the means of supervision rather than a failure to supervise. Therefore, pursuant to the holding in Turner v. Nelson, the appellants' actions were discretionary. And because the appellants' acts of supervising and disciplining the students were discretionary, even if there might be a legitimate disagreement regarding the methods they used, they are entitled to the protection of qualified official immunity from S.F.'s suit. Accordingly, we hold that as a matter of law, the actions of the appellants in this case related to supervision were discretionary, and the circuit court erred in concluding that these acts were ministerial; therefore, we must reverse its ruling.
As we have stated previously, the appellants' argument relating to S.F.'s claim for failure to provide medical treatment is not properly before the Court. Therefore, on remand, the circuit court must rule on this issue upon the filing of a proper motion by the appellants, keeping in mind the Supreme Court's analysis in Turner v. Nelson.
For the foregoing reasons, the interlocutory judgment of the Perry Circuit Court denying the appellants' motion for summary judgment of dismissal is reversed, and this matter is remanded for further proceedings in accordance with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANTS: C. Tom Anderson
Pikeville, Kentucky
BRIEF FOR APPELLEE: Adam P. Collins
Hindman, Kentucky