Brock v. Sumter County School Bd.

• Decision Date: 16 November 2000
• Docket Number: No. A00A1131.,A00A1131.
• Citation: 542 S.E.2d 547,246 Ga. App. 815
• Parties: BROCK et al. v. SUMTER COUNTY SCHOOL BOARD et al.
• Court: Georgia Court of Appeals

542 S.E.2d 547

246 Ga. App. 815

BROCK et al. v. SUMTER COUNTY SCHOOL BOARD et al.

No. A00A1131.

Court of Appeals of Georgia.

November 16, 2000.

Neal H. Howard, Joann B. Williams, Atlanta, for appellants.

Hawkins & Parnell, Thomas G. Tidwell, Atlanta, for appellees.

POPE, Presiding Judge.

Wendy Brock and Jimmy Yoemans (hereinafter "Brock") sued the Sumter County School Board and several individual employees of the County after their seven-year-old daughter, Elizabeth, was killed in an unfortunate accident while she was waiting for the morning school bus. The Sumter County School District was substituted as a party in place of the school board. The trial court granted summary judgment for the school district on the ground of sovereign immunity and granted summary judgment for the individual defendants. This appeal raises the familiar questions of whether the school district waived its sovereign immunity by purchasing motor vehicle liability insurance and whether certain duties of the school district employees were ministerial, meaning that their actions were not protected by official immunity.

Construed in favor of Brock, the facts show that the family lived in a mobile home park located on a dirt, privately owned driveway that intersects Brady Road, a paved, county-owned roadway. Seven-year-old, second grader Elizabeth and the other children were supposed to wait for the bus ten to twenty feet from Brady Road. Only when the bus arrived were the children to cross Brady Road in order to board the bus. The children were instructed to arrive at the bus stop no earlier than five minutes before the scheduled pickup time of 6:55 a.m.

On the morning of March 25, 1997, Elizabeth made the ten-minute walk to the bus stop by herself as usual. She arrived at the bus stop at least four or five minutes before 6:50 a.m. At the same time, Michael Trussell was driving to work on Brady Road. As he rounded a turn he saw children on both sides of the road where the dirt driveway intersects. They were watching a crop-duster airplane that was passing overhead at that moment. Elizabeth was one of the children who had crossed the road. Trussell slowed as he approached, but Elizabeth suddenly ran onto Brady Road and was struck by the truck. There were no adults at the scene. Trussell ran to a nearby house and asked someone to call 911. Sumter County Emergency Medical Services received the 911 call at 6:46 a.m., and paramedics arrived at 6:53 a.m. The bus arrived thereafter.

Although Brock had instructed her daughter not to cross the street before the bus arrived, she had seen Elizabeth do exactly that "a couple of times" during the prior school year and had to warn her not to do so. She also knew that Elizabeth was a very troubled child who had attempted suicide; that she was hyperactive and took Ritalin; that she was only seven years old; that Brady Road was a busy street; and that Elizabeth did not always follow her instructions. For instance, Elizabeth left for the bus stop too early on many occasions despite her mother's instruction not to. And Brock allowed Elizabeth to make the ten-minute walk from their home to the bus stop by herself on most occasions. ¹

1. The school district moved for and was granted summary judgment on the ground that it was protected by sovereign immunity and had not waived that immunity. Brock contends that the school district waived sovereign immunity in accordance with OCGA § 33-24-51 because it had purchased liability insurance coverage for damages arising by reason of ownership, maintenance, operation, or use of a motor vehicle, namely the school bus.

But "procurement of insurance under this statute does not constitute a waiver of sovereign immunity in regard to damages caused by the [school district's] negligence not connected with motor vehicles." Revels v. Tift County, 235 Ga. 333, 335(4), 219 S.E.2d 445 (1975).² And the party seeking to benefit from the waiver of sovereign immunity has the burden of establishing it. Ga. Dept. of Human Resources v. Poss, 263 Ga. 347, 348(1), 434 S.E.2d 488 (1993), overruled on other grounds, Hedquist v. Merrill Lynch &c., 272 Ga. 209, 211(1), 528 S.E.2d 508 (2000).

Although the policy covering the school bus is not in the record, the school district admits there is a policy. Construing the evidence and all inferences therefrom in favor of Brock raises the inference that the school district has purchased the insurance described in OCGA § 33-24-51(a). Chamlee v. Henry County Bd. of Ed., 239 Ga.App. 183, 185(2), 521 S.E.2d 78 (1999). But even so, we find no evidence that the incident arose from use of a motor vehicle as provided by the statute.

Brock asserts that the accident involved use of the bus for two reasons. First, she asserts that the driver's failure to arrive on time constitutes misuse of the bus, and that misuse is a form of use of a vehicle. Brock relies on Lincoln County v. Edmond, 231 Ga.App. 871, 501 S.E.2d 38 (1998). However, there is absolutely no evidence in the record that the school bus arrived late. The bus was due at 6:55 a.m., and the evidence shows only that it arrived after 6:53 a.m. The bus driver stated that he was on time. Although the bus driver had been late on other occasions, he explained that he was late only if the bus did not start or if it broke down. There is no evidence that either occurred on that morning. It is not reasonable to infer from these facts that the bus was late on the day Elizabeth was killed. Also, the accident occurred about ten minutes before the scheduled stop, and therefore, any delay in the arrival of the bus could not have contributed to the cause of the accident. And, Brock misconstrues Lincoln County v. Edmond. It does not stand for the proposition that failure of a county employee to use his vehicle to arrive somewhere on time constitutes a misuse of that vehicle, but rather, the opposite. Id. at 873(1), 501 S.E.2d 38.

Second, Brock contends loading and unloading the bus constitute use of a vehicle. It is true that "the loading of school children as well as the unloading thereof is included in the [definition of] `use' of a school bus." Cawthon v. Waco Fire &c. Ins. Co., 183 Ga.App. 238, 241, 358 S.E.2d 615 (1987). But, the facts of this case show that the accident did not arise out of loading the bus. This case is controlled by Cawthon and Roberts v. Burke County School Dist., 267 Ga. 665, 482 S.E.2d 283 (1997).³ In Cawthon, we held that "independent, voluntary actions taken by a school child cannot, alone, initiate the loading procedure...." Cawthon, 183 Ga. App. at 241,358 S.E.2d 615. In that case there was an issue of fact as to whether the bus driver was partly responsible for the student crossing the road before the bus had come to a stop. But we held that if the student was not acting in response to the bus driver's orders, or was acting unreasonably in response to them, then his death while crossing the road would not have occurred within the normal process of loading. Id. at 242, 358 S.E.2d 615. In the present case, the facts are undisputed that Elizabeth crossed the road in contradiction to both the driver's and her mother's orders. Thus, her actions did not involve the process of loading the bus and therefore did not involve "use" of the bus.

In Roberts, the Supreme Court, construing an exclusion to a policy, held that a child's death did not arise out of the use of the school bus where a five-year-old child was dropped off at an unauthorized location and had to cross a busy highway to get home. Roberts, 267 Ga. at 667-668, 482 S.E.2d 283. The child had walked about four-tenths of a mile and the bus had traveled approximately two miles away from the drop-off before the child was struck. Id. at 665, 482 S.E.2d 283. The Court acknowledged that although "use" of the school bus "can reach beyond actual physical contact," and that it encompasses unloading, the accident was so remote physically and temporarily from when the child disembarked, that the accident did not involve use of the bus. Id. at 667-668, 482 S.E.2d 283.

Here, the bus had not yet arrived, was not in sight, and the fact that Elizabeth was crossing the road was unrelated to the arrival of the bus. There is no evidence that Elizabeth was instructed to cross the road at anytime before the bus had stopped and the driver had given a signal to cross. The bus was too remote from the site of the accident as a matter of law for the accident to be considered as arising out of the use of the bus. Roberts v. Burke County School Dist., 267 Ga. at 668, 482 S.E.2d 283. Compare Ga. Farm &c. Ins. Co. v. Greene, 174 Ga. App. 120, 122-125, 329 S.E.2d 204 (1985).

2. Brock contends that several county officials were negligent in performing ministerial duties; that therefore they are not entitled to official immunity; and that their negligence caused Elizabeth's death.

Official immunity protects public officers acting in their official capacity from suit unless they negligently perform a ministerial duty or act with actual malice or intent to cause injury while performing a discretionary duty. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d); Teston v. Collins, 217 Ga.App. 829, 830(1), 459 S.E.2d 452 (1995). There is no allegation of actual malice here.⁴ The distinction between ministerial and discretionary acts is this:

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.

(Citation and punctuation omitted.) Joyce v. Van Arsdale, 196 Ga.App. 95, 96, 395 S.E.2d 275 (1990). Compare Brantley v. Dept. of Human Resources, 271 Ga. 679, 680-681, 523 S.E.2d 571 (1999) ...