Bajjani v. Gwinnett County School Dist., A05A1781.

• Decision Date: 30 March 2006
• Docket Number: No. A05A1781.,A05A1781.
• Citation: 630 S.E.2d 103
• Parties: BAJJANI et al. v. GWINNETT COUNTY SCHOOL DISTRICT et al.
• Court: Georgia Court of Appeals

630 S.E.2d 103

BAJJANI et al. v. GWINNETT COUNTY SCHOOL DISTRICT et al.

No. A05A1781.

Court of Appeals of Georgia.

March 30, 2006.

Reconsideration Denied April 14, 2006.

Carothers & Mitchell, Richard A. Carothers, Cheryl Benton Reid, Buford, for appellants.

Thompson & Sweeney, E. Victoria Sweeny, Stephen D. Pereira, Lawrenceville, Davidson & Tucker, Gerald Davidson, Jr., Duluth, for appellees.

PHIPPS, Judge.

Joe and Michelle Bajjani, individually and as parents and guardians of Timothy, filed suit against the Gwinnett County School District, Board of Education, members of the Board, Superintendent of Schools, and three individual employees¹ (principal, assistant principal, and clinic nurse) of North Gwinnett High School as the result of injuries suffered by Timothy when he was assaulted by a fellow student. The Bajjanis appeal from the trial court's grant of the defendants' motion for judgment on the pleadings. For reasons which follow, we reverse.

In this state, when

deciding a motion for judgment on the pleadings, the issue is whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law. All well-pleaded material allegations by the nonmovant are taken as true, and all denials by the movant are taken as false. But the trial court need not adopt a party's legal conclusions based on these facts.²

Thus, the question before us

is whether the undisputed facts appearing from the pleadings indicate that [defendants are] entitled to judgment as a matter of law. Where the part[ies] moving for judgment on the pleadings [do] not introduce affidavits, depositions, or interrogatories in support of [their] motion, such motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that the plaintiff[s] would not be entitled to relief under any state of facts which could be proved in support of [their] claim.³

We review a trial court's order dismissing a plaintiff's complaint de novo.⁴

* * *

Here, the trial court accepted as true the following factual allegations of the Bajjanis:

On August 19, 2002, Timothy responded to a question posed by his fellow student Richard Bagley in an inflammatory way. The teacher heard Timothy's comment and responded. Several students heard Bagley threaten to beat Timothy in response to Timothy's remark. No further action was taken by the teacher and, when class ended, as soon as Timothy and Bagley left class, Bagley severely beat Timothy, including kicking him in the face and stomach and stomping on his head while he lay unconscious on the concrete floor.

Defendants John Green, the principal, and Roland Wallace, the assistant principal, arrived in the hallway where the attack occurred and found Timothy unconscious and bleeding profusely. They took him to the school clinic where defendant Susan Stephenson, the clinic nurse, cleaned his wounds. No other medical assistance was requested by school officials, but another assistant principal attempted to call Mr. and Mrs. Bajjani. Unable to reach them, he left messages for them that Timothy was okay, but the school needed to speak to them.

Mrs. Bajjani received the message and returned the call. Upon finding that Timothy had been injured, she went immediately to the school while Mr. Bajjani was on the phone with Green. Upon arriving, Mrs. Bajjani found Timothy still covered in blood, writhing in pain, begging for help, and unable to say what had happened to him.

Mrs. Bajjani took the phone and told her husband of Timothy's condition and that no medical assistance had been summoned. Mr. Bajjani then demanded that Green call 911 and, 40 minutes following the attack, Green did call 911. It was 49 minutes from the attack before medical assistance arrived and, during that time, spinal fluid was leaking out of Timothy's brain and he was vomiting blood. Because of the failure of any school official to immediately notify the proper police authority or to summon medical assistance, it was more than an hour and a half before treatment was begun at Gwinnett Medical Hospital, where Timothy was placed in the intensive care unit for traumatic brain injury. Further, because the school failed to notify the hospital of the severity of the attack, the true extent of his injuries was not discovered until hours later when a CT scan was performed.

Timothy's injuries included severe head trauma, a subdural hematoma, temporal skull fracture, and three facial fractures. As a result of the trauma and resulting leakage of spinal fluid due to the lack of immediate treatment, Timothy underwent surgery and extensive dental work, and suffers from seizures, inability to sleep, and difficulty eating.

Bagley, the assailant, had an extensive history of explosive, violent behavior, known to school officials and his parents. He had been involved in fights at the Mall of Georgia and numerous assaults on school premises. School officials failed to take measures to prevent further occurrences by warning teachers of Bagley's violent tendencies. As a result, the teacher ignored the threats made by Bagley toward Timothy.⁵

Under the federal No Child Left Behind Act, states must develop a definition of "persistently dangerous" schools and allow public school choice for students who attend a school that meets this definition. Georgia's definition of a persistently dangerous school includes one in which, for each of three consecutive years, "[a]t least one student enrolled in that school is found by official action to have committed an offense in violation of a school rule that involved one or more of the following criminal offenses . . . [a]ggravated battery . . ."⁶ either on campus or at a school-sanctioned event.

Local school systems are required to report to the Georgia Department of Education incidents of criminal offenses and, each year, the Department publicly identifies persistently dangerous public schools. Those schools must notify all parents or guardians that the school has been so designated and specify the process by which the student may transfer to a safe public school.

Because the publicity of such a designation is unwanted by local schools and school systems, it was widely known that Gwinnett County Public Schools repeatedly grossly underreported student discipline data used to determine the designation. In fact, in 2002, Gwinnett County reported only 4,258 of 70,138 disciplinary incidents, as admitted by Superintendent J. Alvin Wilbanks. This has resulted in an anti-reporting policy in Gwinnett County that discourages the accurate reporting of violent incidents and has impacted the way violent incidents are handled on school grounds, including the discouragement of requesting medical assistance for victims of violence. At North Gwinnett High School, teachers have been specifically instructed never to call 911 for any injury on school grounds.

The complaint contains six counts. The first alleges negligent performance of ministerial duties required by OCGA § 20-2-1185 by failing to develop a security plan for North Gwinnett High School; by failing to have measures to insure appropriate and timely medical response; by failing to have measures designed to warn teachers and students of dangerous students; and by failing to immediately notify appropriate authorities of the assault, as required by OCGA § 20-2-1184. Count 2 alleges that these actions were motivated by the desire to cover up incidents of this type and were wilful, malicious, and corrupt. Count 3 alleges that the failure to develop and implement an effective security plan, pursuant to OCGA § 20-2-1185, was wilful, wanton, malicious, and corrupt, arising from a systemic need to avoid publicity as an unsafe school system and local school. In Count 4, it is alleged that, by failing to seek immediate medical attention for Timothy, defendants failed to exercise ordinary care for his safety and failed to comply with OCGA § 20-2-1184 and the ministerial duties therein. Finally, Count 5 alleged that Wilbanks, the school board members, and Green discouraged reporting of violent incidents, thereby creating an environment at the local school level that amounted to a dangerous condition of which they were aware and which they failed to abate. Count 6 seeks punitive damages.

The Bajjanis' first four enumerations deal with the issue of official immunity and whether certain acts or failures to act were ministerial or discretionary and are considered together.

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee's independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.⁷

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.⁸

In 1994, the "School Safety and Juvenile Justice Reform Act" was passed. Therein, it was "found and determined by the General Assembly . . . that: (1) The State of Georgia should ensure a safe and secure learning environment for...