A.F. ex rel. L.F. v. Hazelwood Sch. Dist., ED 103056

• Decision Date: 22 March 2016
• Docket Number: No. ED 103056,ED 103056
• Parties: A.F., by and through her next friend L.F., Appellant, v. Hazelwood School District, Brenda Rone and Elizabeth Brands, Respondents.
• Court: Missouri Court of Appeals

491 S.W.3d 628

A.F., by and through her next friend L.F., Appellant,

v.Hazelwood School District, Brenda Rone and Elizabeth Brands, Respondents.

No. ED 103056

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: March 22, 2016

Motion for Rehearing and/or Transfer to Supreme Court Denied May 11, 2016

Application for Transfer Denied June 28, 2016

Robert J. Radice, 911 Washington Avenue, Suite 400, St. Louis, MO 63101, for Appellant.

Cindy R. Ormsby, 130 South Bemiston, Suite 602, Clayton, MO 63105, for Respondents.

ROBERT G. DOWD, JR.

, Presiding Judge

A.F., by and through her next friend, L.F., appeals from the judgment dismissing her petition for failure to state a claim against her teacher, principal and school district that was not barred by official and sovereign immunity. We affirm.

A.F. alleged in her petition that she was a student at McNair Elementary School in the Hazelwood School District during the 2007–2008 school year. Brenda Rone was the principal at the time, and A.F.'s teacher was Elizabeth Brands. A.F. alleged she was “subjected to repeated bullying, including physical harassment, physical assault, sexual harassment and sexual assault by a fellow student, [K.S.].” She alleged that there was a School District Student Behavior Guide (“the Guide”) in place at that time that set forth the rules and regulations to be followed regarding bullying, including physical harassment and assault, as well as sexual harassment and assault. The Guide also allegedly “set forth the consequences when a student failed to meet the standard of behavior required by [the District]” and “required that rules be enforced fairly, firmly and consistently.” The District and the individual defendants were alleged to have been negligent by failing to separate, supervise and discipline K.S. At the time of “the occurrence,” Brands was allegedly in a master's degree program paid for by the District. A.F. alleged that K.S. was a participant in Brands's coursework for that program and this was the reason the defendants would not separate K.S. from her. She also alleged that the District had insurance that provided coverage “for the incident in question” and waived sovereign immunity.

The defendants filed a motion to dismiss for failure to state a claim, alleging that A.F.'s claims were barred under the doctrines of sovereign and official immunity and she had not pled facts sufficient to show any exceptions thereto. The court granted the motion to dismiss without explanation. A.F. filed a motion to reconsider, which was denied also without explanation. This appeal follows.

We review the trial court's grant of a motion to dismiss de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008)

. “A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition.” State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009). A plaintiff's averments are taken as true, and all reasonable inferences therefrom are liberally construed in the plaintiff's favor. Id. Where, as here, the court gives no basis for its dismissal, we must presume it was based on one of the grounds stated in the motion to dismiss. Duvall v. Lawrence, 86 S.W.3d 74, 78 (Mo.App.E.D.2002). We review only the grounds in the motion and must affirm if dismissal was appropriate on any ground supported by the motions. In re Estate of Austin, 389 S.W.3d 168, 171 (Mo. banc 2013).¹

In her first point on appeal, A.F. contends that she sufficiently pled a claim against Rone and Brands that was not barred by official immunity. We disagree.

Employees of a public school district are, like other public employees, entitled to official immunity. See Woods v. Ware, 471 S.W.3d 385, 391 (Mo.App.W.D.2015)

. Official immunity is a judicially-created doctrine that “protects public employees from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts.” Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008). Official immunity is intended to provide protection for these employees “who, despite limited resources and imperfect information, must exercise judgment in the performance of their duties.” Id. at 611. The goal of the doctrine is “to permit public employees to make judgments affecting public safety and welfare without concerns about possible personal liability.” Id.

Thus, the key to official immunity is whether the public employee was performing a discretionary task, for which there is immunity, or a non-discretionary ministerial task, for which there is not. “A discretionary act requires the exercise of reason and discretion in determining how an act should be done or what course of action should be pursued.” Woods, 471 S.W.3d at 392

. A ministerial function, on the other hand, is one of a clerical nature that the employee “is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed.” Id. Thus, a public employee is only liable for a ministerial act if the conduct violates either a departmentally-mandated duty or a duty imposed by statute or regulation. Nguyen v. Grain Valley R–5 School District, 353 S.W.3d 725, 730 (Mo.App.W.D.2011). A departmentally-mandated duty may arise from sources other than statutes or regulations, such as from departmental rules, the orders of a superior or the nature of the employee's position. Id.

“Absent allegations averring the existence of a statutory or departmentally-mandated duty and a breach of that duty, a petition fails to state a claim that is not barred by the doctrine of official immunity as a matter of law.” Boever v. Special School District of St. Louis County, 296 S.W.3d 487, 492 (Mo.App.E.D.2009)

; State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 445 (Mo. banc 1986). In order to survive a motion to dismiss in which official immunity is raised, there must be on the face of the pleadings “specific facts” demonstrating that the employee failed to perform that mandated duty. Vaughn v. Genasci, 323 S.W.3d 454, 456 (Mo.App.E.D.2010). The existence and breach of that duty is the plaintiff's burden to plead. Stephens v. Dunn, 453 S.W.3d 241, 251 (Mo.App.S.D.2014).

Here, the allegations regarding Rone's and Brands's duties are not specific enough to survive the motion to dismiss. The only source of any duty alleged in the petition is the School District Student Behavior Guide. But the Guide itself was not attached or incorporated by reference to the petition,² nor is any reference made in the petition to any particular rule, regulation or consequence that is allegedly set forth in the Guide. Rather, the petition makes only general allegations that the Guide contained rules, regulations and consequences related to bullying. The petition then generally states that the Guide “required the rules to be enforced fairly, firmly and consistently” and that Rone and Brands failed to discipline K.S. “in accordance with” the Guide. From these allegations, we can at best infer that the Guide imposed some duty on Rone and Brands to enforce the consequences set forth therein. But without more specificity there is no way to determine that this duty was non-discretionary. In fact, the allegation that the rules are to be enforced “fairly” suggests the contrary.³ If the employee was mandated to impose certain consequence on a student without discretion, without exercising any judgment in the matter, then there would be no need to refer to fairness. Enforcing these rules “fairly” implies that the employee will have to use her own judgment to form an opinion about whether imposing a particular consequence will be just. Therefore, it cannot be deemed a non-discretionary act.

A.F. also alleged that Rone and Brands were “performing ministerial acts” and “had no discretion in handling the discipline of K.S.” But these conclusory statements are unsupported by the factual allegations and need not be taken as true. “[C]onclusory allegations of fact and legal conclusions are not considered in determining whether a petition states a claim upon which relief can be granted.” Hendricks v. Curators of University of Missouri, 308 S.W.3d 740, 747 (Mo.App.W.D.2010)

. The petition simply does not contain sufficiently specific facts demonstrating the existence of a mandated duty and breach thereof to survive the motion to dismiss on grounds of official immunity. Point I is denied.

In her second point on appeal, A.R. contends that she sufficiently pled a claim against the District that was not barred by sovereign immunity. We disagree.

Sovereign immunity is the longstanding common law rule that the State is not subject to tort liability without its consent. Metropolitan St. Louis Sewer District v. City of Bellefontaine Neighbors, 476 S.W.3d 913, 921 (Mo. banc 2016)

. Sovereign immunity is the rule, not the exception. Id. at 921–22. It is not an affirmative defense, and therefore the plaintiff bears the burden of pleading with specificity those facts giving rise to an exception to sovereign immunity when suing a public entity. Richardson v. City of St. Louis, 293 S.W.3d 133, 137 (Mo.App.E.D.2009). Two such exceptions are those found in Section 537.600, for injuries arising out of the operation of a motor vehicle or a dangerous property condition, neither of which is alleged here.

A.F. contends that she pled another exception to sovereign immunity by alleging that the District was performing a proprietary function, not a governmental function, and therefore the claim is not barred. This proprietary-government dichotomy applies to limit the immunity of municipalities. Because municipalities operate as both political subdivisions of the State and independent corporations, immunity bars only those claims arising out of the performance of a municipality's governmental functions, not its...