Harper v. Patterson

• Decision Date: 15 November 2004
• Docket Number: No. A04A1287.,A04A1287.
• Citation: 270 Ga. App. 437,606 S.E.2d 887
• Parties: HARPER et al. v. PATTERSON et al.
• Court: Georgia Court of Appeals

606 S.E.2d 887

270 Ga. App. 437

HARPER et al. v. PATTERSON et al.

No. A04A1287.

Court of Appeals of Georgia.

November 15, 2004.

Patrick W. McKee, Sammie M. Mitchell, for appellants.

Swift, Currie, McGhee & Hiers, James T. McDonald, Christopher Denied D. Balch, Maren R. Frost, Harben & Hartley, Phillip L. Hartley, Cynthia N. Johnson, for appellees.

BARNES, Judge.

Jaime D. Harper, by his next friend and mother, Alisa Harper, Clarissa Gail Sexton, by her next friend and mother, Iva Kathryn Sexton, and Jeffrey D. Sheriff, by his next friend and grandmother, Bobbie J. Sheriff, (collectively "the plaintiffs") appeal the final judgment, based on a jury verdict, in favor of the defendants, Jeffrey Stephen Patterson and Phillis Sparks Ramsey ("the defendants"). The named plaintiffs are mentally handicapped and also suffer from a number of physical, mental and emotional disabilities. They alleged that while enrolled in a special education program they were subjected to repeated sexual abuse, exploitation, and harassment by Patterson, a paraprofessional employed to assist them, and that Ramsey, their special education teacher, allowed Patterson to molest them and take pornographic pictures of them and also participated with him in some of these activities.

The plaintiffs also appeal the grants of summary judgment to defendants Ben Arp and Danette Ozment, two school officials, based on the statute of limitation, and the Gilmer County School District based on sovereign immunity. They further appeal the grant of judgment on the pleadings to Ramsey on the plaintiffs' negligence claims based on the defense of official immunity, and the grant of the defendants' motions in limine to exclude certain hearsay statements and allegedly similar transaction evidence. For the reasons that follow, we affirm.

1. The plaintiffs contend the trial court erred by granting summary judgment to the school district based upon sovereign immunity and to defendants Arp and Ozment based on the running of the statute of limitation. When we review the grant of summary judgment, this court conducts a de novo review of the evidence. Further, as movants for summary judgment, these defendants had the burden of showing no genuine issue of material fact existed for trial and the undisputed facts, viewed most favorably to the plaintiffs, demanded judgment as a matter of law. Phillips v. Walls, 242 Ga.App. 309, 310, 529 S.E.2d 626 (2000).

(a) The trial court did not err by granting summary judgment to the school district. Under Art. I, Sec. II, Par. IX (e)¹ of the Georgia Constitution of 1983, the defense of sovereign immunity extends to a county-wide school district, such as in this case. Coffee County School District v. Snipes, 216 Ga.App. 293, 294, 454 S.E.2d 149 (1995).

The plaintiffs' arguments that sovereign immunity does not apply because the actions taken involved malice, were ministerial, or violated the public duty doctrine misconstrue our constitutional provision on sovereign immunity. The first part of the argument relies upon Art. I, Sec. II, Par. IX (d), which concerns official immunity for State employees, and not sovereign immunity for agencies of the State. As these are different concepts, Gilbert v. Richardson, 264 Ga. 744, 750(4), 452 S.E.2d 476 (1994), this argument has no merit. Further, the plaintiffs' reliance on the special duty doctrine adopted in City of Rome v. Jordan, 263 Ga. 26, 28-29(1), 426 S.E.2d 861 (1993), is misplaced. This doctrine does not apply outside of the police protection context. Hamilton v. Cannon, 267 Ga. 655, 656(1), 482 S.E.2d 370 (1997). Accordingly, this enumeration of error is without merit.

(b) The plaintiffs argue that the trial court erred by granting summary judgment to Superintendent of Schools Arp and Ozment, the school district's director of special education, on the plaintiffs' claims for negligent hiring, supervision, and retention because they contend the statute of limitation in OCGA § 9-3-33 is tolled as they continue to be mentally handicapped. See OCGA § 9-3-90(a): "Minors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons."

According to the appellees, however, the statute of limitation expired because the alleged abuse could have occurred no later than July 1998 and the complaint was not filed until October 31, 2001. The appellees further contend that, under Price v. Dept. of Transp., 214 Ga.App. 85, 88(1), 446 S.E.2d 749 (1994), the statute of limitation began running on October 22, 1999, when the plaintiffs, through their next friends, filed suit on their claims in United States District Court. We agree. Because the next friends actually filed suit on behalf of the disabled plaintiffs on October 22, 1999, the statute of limitation began to run on that date, and as the complaint was not filed against Arp and Ozment until October 31, 2001, the plaintiffs' claims against them were barred by the statute of limitation. Id.; Cline v. Lever Bros., 124 Ga.App. 22, 23(4)(a), 183 S.E.2d 63 (1971) (statute of limitation tolled until capacity to act for himself is regained or until a guardian is appointed and acts for him, or until a "next friend thereafter, during the continuance of the disability of plaintiff, brings an action seeking recovery for the injury sustained"). This is not a case in which guardians were merely appointed for the disabled children. Compare Whalen v. Certain-Teed Products Corp., 108 Ga.App. 686, 687-688, 134 S.E.2d 528 (1963).

2. The plaintiffs allege the trial court erred by granting judgment on the pleadings on their claim that Ramsey negligently supervised Patterson. 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.

(Citations and punctuation omitted.) Holsapple v. Smith, 267 Ga.App. 17, 20(1), 599 S.E.2d 28 (2004).

Thus, the question before us

is whether the undisputed facts appearing from the pleadings indicate that [Ramsey] is entitled to judgment as a matter of law. Where the party moving for judgment on the pleadings does not introduce affidavits, depositions, or interrogatories in support of [her] 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 would not be entitled to relief under any state of facts which could be proved in support of [her] claim.

(Citations omitted.) Cox v. Turner, 268 Ga.App. 305(1), 601 S.E.2d 728 (2004). Here, the plaintiffs contend the trial court erred by granting judgment on the pleadings because under Georgia law classroom teachers are required to supervise paraprofessionals in their classrooms, and, therefore, Ramsey's duty to supervise Patterson was a ministerial, not a discretionary duty. Relying on the doctrine of official immunity, however, the trial court granted Ramsey's motion for judgment on the pleadings on this claim.

Under our law,

[a] suit against a public officer acting in his or her official capacity will be barred by official immunity unless the public officer (1) negligently performed a ministerial duty, or (2) acted with actual malice or an actual intent to cause injury while performing a discretionary duty. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d) (as amended 1991); [cit.]

(Emphasis in original.) Lincoln County v. Edmond, 231 Ga.App. 871, 874(2), 501 S.E.2d 38 (1998). "In other words, public officials are immune from damages that result from their performance of discretionary functions, unless those functions were undertaken with malice or intent to cause injury." Phillips v. Walls, supra, 242 Ga.App. at 311, 529 S.E.2d 626.

Because the plaintiffs' complaint alleges that Ramsey was negligent in the performance of her ministerial duty of supervising Patterson, and not that she acted with malice or intent to cause injury, our primary inquiry is whether she was exercising a discretionary or ministerial duty. This court has defined a ministerial act as "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." Id. On the other hand, a discretionary act requires "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 omitted.) Id. Here, the plaintiffs contend that supervising Patterson was a ministerial duty because Georgia law imposes the duty of supervising Patterson, a paraprofessional, on Ramsey, as the professional teacher in the classroom. Although framed in those terms, what the plaintiffs really complain of is that Ramsey did not supervise her classroom activities in such a manner as to protect the children from molestation. Therefore, we find this case is controlled by the line of cases holding that "the supervision of student safety is a discretionary function, the proper exercise of which entitles school officials to immunity." (Citation omitted.) Brock v. Sumter County School Bd., 246 Ga.App. 815, 821(2)(b), 542 S.E.2d 547 (2000). See also, e.g., Caldwell v. Griffin Spalding County Bd. of Ed., 232 Ga.App. 892, 893, 503 S.E.2d 43 (1998) (physical precedent only); Kelly v. Lewis, 221 Ga.App. 506, 508, 471 S.E.2d 583 (1996); Wright v. Ashe, 220 Ga.App. 91, 94, ...