J.E. v. Jackson Pub. Sch. Dist.

• Decision Date: 31 July 2018
• Docket Number: NO. 2016-CA-01566-COA,2016-CA-01566-COA
• Citation: 264 So.3d 786
• Parties: J.E., Natural Grandmother and General Guardian of A.C., a Minor, and C.A., Natural Mother and Next Friend of A.C., a Minor, Appellants v. JACKSON PUBLIC SCHOOL DISTRICT, Appellee
• Court: Mississippi Court of Appeals

264 So.3d 786

J.E., Natural Grandmother and General Guardian of A.C., a Minor, and C.A., Natural Mother and Next Friend of A.C., a Minor, Appellants

v.JACKSON PUBLIC SCHOOL DISTRICT, Appellee

NO. 2016-CA-01566-COA

Court of Appeals of Mississippi.

July 31, 2018

Rehearing Denied November 6, 2018

ATTORNEYS FOR APPELLANTS: DAVID NEIL MCCARTY, THOMAS A. WALLER, ROBERT ALLEN SMITH JR., RIDGELAND

ATTORNEYS FOR APPELLEE: STEVEN LLOYD LACEY, JOANNE N. SHEPHERD, JACKSON, KASHONDA LEKESHA DAY, RIDGELAND, CYDNEY JEHEIDA ARCHIE

BEFORE LEE, C.J., BARNES AND TINDELL, JJ.

BARNES, J., FOR THE COURT:

¶ 1. A.C.'s¹ mother and grandmother (the plaintiffs) sued the Jackson Public School District (JPS) under the Mississippi Tort Claims Act (MTCA) after A.C., a special-education student, was involved in a sexual encounter with another special-education student. The complaint alleged A.C. was sexually assaulted by the other student as a direct result of JPS's failure to provide proper care and supervision of its students. After a bench trial, the trial court ruled in favor of JPS, finding that JPS did not breach its general ministerial duty to supervise the students properly and that even if it had, there was no evidence that the breach was causally related to the sexual encounter. The plaintiffs appealed. We find no manifest error in the trial court's ruling and affirm.

FACTS

¶ 2. On October 9, 2013, sixteen-year-old A.C. was walking to class in the hallway of Callaway High School in Jackson, Mississippi, when she and a nineteen-year-old male student entered a bathroom and had sex. The sexual encounter was confirmed by a rape kit at a local hospital.

¶ 3. At the time of the incident, A.C. was a special-education student in the ninth grade at Callaway. She had Down Syndrome. Psychiatrist Dr. Mark Webb evaluated A.C. and found that she had a "severe intellectual disability." He testified that she was emotionally "very childlike" and functioned on the level of a five or six year old. He opined that, to a reasonable degree of medical probability, she was incapable of consenting to the sexual act. This finding is undisputed by JPS on appeal. The male student, T.H., was also a special-education student. Both A.C. and T.H. had individualized-education programs (IEP), which specified the education plan and care they were to receive at school. Per T.H.'s IEP, he had a history of behavioral issues, including stabbing another student in the head with a pencil, making obscene gestures with his tongue, using inappropriate language, and writing profanity on the board in the classroom. He was also known to "touch ... girls in their private areas whenever he thinks that [the teacher is] not aware."

¶ 4. On the day of the incident, A.C. and T.H. had been in homeroom together on the first floor and were dismissed to go to their next classes. The special-education assistant teacher testified that T.H. was not left alone with other students due to his past behavior. To keep him separated from the other students when homeroom was dismissed, the assistant teacher sent T.H. out of the classroom several minutes before the other students and to the left toward his ROTC class down the hall on the first floor. The assistant teacher testified that on the day in question, she followed her normal procedure of watching him walk to his ROTC class, and she believed he had entered the classroom, although she could not be sure because the classroom doorways are in inlets, and she could not see the door. After she believed he was in the classroom, the assistant teacher dismissed A.C. and the other students to the right to go to art class on the second floor. She testified that she watched them walk to the elevator and get on it, but she did not follow them.

¶ 5. Moments later, on the second floor, a security officer saw A.C. and T.H. near one another. T.H. was behind A.C. and stopped to high five the security officer prior to proceeding down the hallway. The security officer did not follow them. This was captured on surveillance video. T.H. and A.C. then entered the girls' bathroom around the corner, outside the view of the surveillance camera. They were missing from class for approximately twenty minutes, during which time the incident occurred. A.C. was found exiting the bathroom and adjusting her clothes by the assistant principal, who then entered the bathroom and found T.H. hiding inside. A.C.'s mother was not notified of the incident, and A.C. was sent home on the bus as usual. A.C.'s mother later learned of the incident from A.C.'s cousin, who also attended Callaway.

¶ 6. On October 7, 2014, A.C.'s mother and grandmother filed a complaint under the MTCA against JPS in the Hinds County Circuit Court, First Judicial District.² The complaint alleged negligence, violation of state statutes, breach of contract, tortious breach of contract, and an argument under the theory of res ipsa loquitur. The plaintiffs alleged that JPS was under a ministerial duty to provide A.C. with an escort to and from class at school and that its failure to do so led to the sexual assault.

¶ 7. JPS raised various affirmative defenses, including immunity under the MTCA for any claims based on the performance or failure to perform a discretionary function. JPS later moved for summary judgment, and its motion was denied. A bench trial was held on August 22, 2016.

¶ 8. On October 10, 2016, the circuit court entered its final judgment in favor of JPS. The court found JPS owed A.C. a general ministerial duty but did not owe A.C. a specific ministerial duty to escort her at all times. The court further found that A.C.'s IEP did not impose upon JPS a duty to provide A.C. with an escort because the IEP contained no language requiring A.C. to be escorted. A.C.'s mother testified that she did not request an escort provision in the IEP because Callaway's former principal—whose name A.C.'s mother did not know—had orally promised her that A.C. would be escorted. The court found no duty was created by the alleged oral promise. The promise was allegedly made prior to the IEP, and the court found that to the extent the IEP was a contract, as the plaintiffs argued, prior oral promises were void unless included.

¶ 9. Because there was no specific duty to escort A.C. in the IEP or elsewhere, the court found that JPS's duty was the general ministerial duty imposed on all schools to supervise children properly. See Miss. Code Ann. § 37-9-69 (Rev. 2013). The court, as the fact finder, found that reasonable efforts had been made to supervise the students properly and keep them safe because the assistant teacher monitored the students in the hallway and reasonably believed T.H. had entered his ROTC class prior to allowing A.C. to enter the hallway. The court further found no causal relationship existed between JPS's alleged failure to supervise A.C. or T.H. and A.C.'s injuries. The plaintiffs timely appealed the trial court's ruling.

STANDARD OF REVIEW

¶ 10. "The circuit court has the sole authority for determining the credibility of witnesses when it sits as the trier of fact." Miss. Dep't of Pub. Safety v. Durn , 861 So.2d 990, 994 (¶ 7) (Miss. 2003). "A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor[,] and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence." Hinds Cty. v. Burton , 187 So.3d 1016, 1020 (¶ 11) (Miss. 2016). "A trial judge's findings of fact must be manifestly wrong and against the overwhelming weight of the evidence for an appellate court to disturb them." Id. at (¶ 13). Questions of law, including proper application of the MTCA, are reviewed de novo. Id. at (¶ 11).

ANALYSIS

I. Whether JPS breached its ministerial duty to A.C.

¶ 11. The plaintiffs argue that JPS failed in its ministerial duty to provide a safe environment and that A.C. was directly harmed as a result.

¶ 12. "The MTCA provides the exclusive civil remedy against a governmental entity for acts or omissions which give rise to a suit." Smith ex rel. Smith v. Leake Cty. Sch. Dist. , 195 So.3d 771, 774-75 (¶ 9) (Miss. 2016). "Any tort claim filed against a governmental entity or its employee shall be brought only under the MTCA," and "a school district is a governmental entity under the MTCA." Id. "Under the MTCA, sovereign immunity is waived for claims for money damages arising out of the torts of governmental entities and their employees, unless they are explicitly exempted from this waiver under Section 11-46-9(1) of the Mississippi Code." Smith , 195 So.3d at 774-75 (¶ 9). Mississippi Code Annotated section 11-46-9(1) (Rev. 2012) exempts discretionary but not ministerial duties from immunity. Smith , 195 So.3d at 774-75 (¶ 9).³

¶ 13. A ministerial duty is a duty that is "positively designated ... by statute, ordinance, or regulation." Id. at 776 (¶ 17). Section 37-9-69 states that "each superintendent, principal and teacher in the public schools of this state ... shall hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess." The Mississippi Supreme Court has found that " Section 37-9-69 of the Mississippi Code imposes upon school districts a ministerial duty to ‘use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment.’ " Smith , 195 So.3d at 776 (¶ 14) (quoting Moss Point Sch. Dist. v. Stennis , 132 So.3d 1047, 1050 (¶ 13) (Miss. 2014) ). "The school is not an insurer of the safety of pupils, but has the duty of exercising ordinary care, of reasonable prudence, or of acting as a reasonable person would act under similar circumstances." Summers ex rel. Dawson v. St. Andrew's Episcopal Sch. Inc. , 759 So.2d 1203, 1213 (¶ 40) (Miss. 2000).

¶ 14. Although the trial court found JPS was under the general ministerial duty imposed on all schools by section 37-9-69 to...