Jarrett v. Butts

• Decision Date: 22 February 1989
• Docket Number: 77254,Nos. 77253,s. 77253
• Citation: 379 S.E.2d 583,190 Ga.App. 703
• Parties: , 53 Ed. Law Rep. 1008 JARRETT et al. v. BUTTS et al. BALDWIN COUNTY BOARD OF EDUCATION et al. v. BUTTS et al.
• Court: Georgia Court of Appeals

Page 583

379 S.E.2d 583

190 Ga.App. 703, 53 Ed. Law Rep. 1008

JARRETT et al. v. BUTTS et al.

BALDWIN COUNTY BOARD OF EDUCATION et al. v. BUTTS et al.

Nos. 77253, 77254.

Court of Appeals of Georgia.

Feb. 22, 1989.

Rehearing Denied March 13, 1989.

Certiorari Denied April 19, 1989.

Anderson, Walker & Reichert, Leland M. Malchow, Macon, for appellants (case no. 77253).

Milton F. Gardner, Jr., Milledgeville, for appellants (case no. 77254).

Charles A. Mathis, Jr., Macon, for appellees.

SOGNIER, Judge.

Ernest and Ernestine Butts, individually and as next friends of their daughter Cynthia Gay Butts, brought suit against George Jarrett, the Baldwin County Board of Education and its members in their official capacities, and county school superintendent William Gardner, alleging claims of invasion of privacy, assault and battery, and violation of 42 USC § 1983. We granted Jarrett's interlocutory appeal from the denial of his motion for summary judgment in Case No. 77253, and the remaining defendants' interlocutory appeal from the denial of their summary judgment motion in Case No. 77254.

Construed favorably to appellees as respondents below, the record reveals that appellant Jarrett, a teacher at Boddie Junior High, is an amateur photographer who often photographs his students at school functions and athletic events and for the school yearbook. On March 26, 1986, he approached Cynthia Butts, appellees' daughter, then a fourteen-year-old student, at school and indicated he wanted to photograph her because of her distinctive attire and decoratively painted fingernails. She testified by affidavit that after Jarrett's repeated requests, she "reluctantly allowed him to take some pictures of my fingernails," but that he then "ordered" her to pose for several other pictures, using a "loud, intimidating and forceful manner," and in so doing touched her wrists and hair. Jarrett denied forcing or intimidating appellees' daughter, and testified in his affidavit that he touched her only as necessary for positioning her hands prior to photographing them.

1. Appellees have moved to dismiss Jarrett's appeal on the ground that Jarrett did not file his enumeration of errors within twenty days after his case was docketed as required by OCGA § 5-6-40 and Court of Appeals Rule 27. A review of the record discloses that Jarrett timely filed his brief, which included his enumeration of errors, on June 30, 1988, but did not file a separate enumeration of errors until July 7th. Belated filing of the separate enumeration is not a basis for dismissal of an appeal, see OCGA § 5-6-48(b), especially where, as here, the enumeration of errors was included in appellant's brief and thus timely filed therewith. Accordingly, appellees' motion to dismiss is denied.

2. Appellant Jarrett first enumerates as error the denial of his motion for summary judgment as to appellees' claim for tortious invasion of privacy on the grounds that the undisputed evidence does not show a physical intrusion or an appropriation of appellees' daughter's likeness for appellant's advantage.

Under Georgia law, the concept of invasion of privacy encompasses four loosely related but distinct torts, but appellees acknowledge their claim raises only two: "intrusion upon the plaintiff's seclusion or solitude, or into [her] private affairs," and "appropriation for the defendant's advantage of the plaintiff's name and likeness." Sun v. Langston, 170 Ga.App. 60, 61(2), 316 S.E.2d 172 (1984). Reviewing the undisputed evidence presented, we conclude appellees' daughter was not subjected to a physical intrusion analogous to a trespass, as is required to recover for an intrusion upon seclusion. See Kobeck v. Nabisco, Inc., 166 Ga.App. 652, 654(2), 305 S.E.2d 183 (1983). The photographs were taken in the classroom and hallway of a school building during regular school hours when other students were present, and did not reveal any aspect of Cynthia Butts' person that was not readily visible to anyone who saw her during the day.

Similarly, the undisputed evidence discloses that no wrongful appropriation occurred, as Jarrett received nothing of value for the photographs, and that there was no use of appellees' daughter's likeness to his advantage, as the photographs were never sold, published, or publicly displayed. See Williams v. Church's Fried Chicken, 158 Ga.App. 26, 32, 279 S.E.2d 465 (1981). Accordingly, appellant Jarrett was entitled to summary judgment on appellees' tortious invasion of privacy claim. See id. at 31-32(5), 279 S.E.2d 465.

3. The appellants in Case No. 77254 (hereinafter collectively referred to as the "school system appellants") also contend the trial court erred by denying their summary judgment motion on the invasion of privacy claim. Appellees made no allegations and introduced no evidence against these appellants other than the evidence regarding Jarrett's actions. Pretermitting the question of whether the school system appellants are entitled to the defenses of either sovereign or official immunity as to this claim because of the exclusions contained in their liability insurance policies, we hold that the trial court erred by denying their motion for summary judgment on the privacy claim for the reasons discussed in Division 2, supra.

4. Appellant Jarrett next asserts the trial court erred by denying his motion for summary judgment on appellees' claim for assault and battery. Although there is no allegation or evidence of reasonable apprehension of "violent injury from the unlawful act of [Jarrett]," Quaker City Life Ins. Co. v. Sutson, 102 Ga.App. 53, 57, 115 S.E.2d 699 (1960), " '[i]n the interest of one's right of inviolability of one's person, any unlawful touching is a physical injury to the person and is actionable.' [Cit.]" Irwin v. Arrendale, 117 Ga.App. 1, 5(4), 159 S.E.2d 719 (1967). Thus, even the minimal touching alleged in this case can support a cause of action for assault and battery. The record reveals that factual questions exist regarding whether appellees' daughter consented to or invited the touching of her person by agreeing to be photographed, see J.H. Harvey Co. v. Speight, 178 Ga.App. 812, 813, 344 S.E.2d 701 (1986), and if so, whether that consent affects appellees' right of action. See OCGA § 51-11-2. Thus, we cannot conclude the trial court erred by denying appellant Jarrett's summary judgment motion on the assault and battery claim. See Newsome v. Cooper-Wiss, Inc., 179 Ga.App. 670, 672(1), 347 S.E.2d 619 (1986).

5. The school system appellants contend they are entitled to summary judgment on the assault and battery claim on the basis of sovereign and official immunity accorded under Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution because their liability insurance policies do not cover such a claim. The record reveals that the school system holds a school board legal liability policy, which expressly excludes, inter alia, claims "based upon or arising out of ... assault and battery." Moreover, the school system appellants' comprehensive general liability policy covers only bodily injury, which is defined as "physical harm to a person's health including sickness or disease," arising from an accidental event, which encompasses "any event that results in bodily injury or property damage that the protected person didn't expect or intend to happen." Appellees have alleged that Jarrett committed an intentional tort, not an unexpected act, and have not alleged any physical harm to their or their daughter's health. Accordingly, we find the trial court erroneously rejected the school system appellants' argument that the assault and battery claim is not covered by the insurance policies at issue and thus the school system appellants have not waived their sovereign or official immunity. See Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301-303(2), 357 S.E.2d 569 (1987).

We note that the individual school board members and the superintendent are not entitled to the defense of official immunity for purely ministerial acts regardless of the lack of insurance coverage. Swofford v. Cooper, 184 Ga.App. 50, 52-53(1), 360 S.E.2d 624 (1987), aff'd sub nom., 258 Ga. 143, 368 S.E.2d 518 (1988). However, the only acts or omissions appellees alleged as to these appellants are negligent failure to terminate Jarrett prior to the incident at issue, and the decision of whether to terminate a tenured teacher is a discretionary one and thus is subject to the defense of official immunity. See generally Hennessy v. Webb, 245 Ga. 329, 330-332, 264 S.E.2d 878 (1980). Therefore, we hold that the trial court erred by denying summary judgment to the school system appellants on appellees' assault and battery claim.

6. Appellants in both cases enumerate as error the trial court's denial of their motions for summary judgment on appellees' claims asserted pursuant to 42 USC § 1983 on the ground that appellees' invasion of privacy claim does not raise a violation of any federal constitutional or statutory right. The school system appellants also argue that, because there is no evidence of any intentional or established policy or practice that led to a violation of any constitutional right of appellees, they cannot be held liable for mere negligence in failing to terminate Jarrett or for his tortious acts.

(a) Appellees have asserted a claim for violation of their privacy rights contained in the penumbrae of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution. Because 42 USC § 1983 establishes the remedy for individual deprivations of constitutional interests, Martin, supra 257 Ga. at 304, 357 S.E.2d 569, we will construe these allegations as a Section 1983 claim.

To recover under Section 1983, appellees must show that an act done under color of state law deprived them of a federal constitutional or statutory right. 42 USC § 1983. We find no authority for appellees' assertions that the alleged...