Nguyen v. Grain Valley R-5 Sch. Dist.

• Decision Date: 13 December 2011
• Docket Number: No. WD 73182.,WD 73182.
• Citation: 274 Ed. Law Rep. 1089,353 S.W.3d 725
• Parties: June P. NGUYEN, et al., Appellants, v. GRAIN VALLEY R–5 SCHOOL DISTRICT, et al., Respondents.
• Court: Missouri Court of Appeals

274 Ed. Law Rep. 1089

353 S.W.3d 725

June P. NGUYEN, et al., Appellants,

v.GRAIN VALLEY R–5 SCHOOL DISTRICT, et al., Respondents.

No. WD 73182.

Missouri Court of Appeals, Western District.

Dec. 13, 2011.

Leland F. Dempsey, Kansas City, MO, for Appellants.

Jo Stephanie Warmund, for Respondent Grain Valley R–5 School District.

Before Division Three: JAMES E. WELSH, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.

JOSEPH M. ELLIS, Judge.

June Nguyen and Bob Haynes (“the Plaintiffs”) appeal from the Circuit Court of Jackson County's dismissal of Dr. Chris Small, Theresa Nelson, Keri Peterson, Ryan Evans, Francie Aumua, Robin Wagoner, and Denise Beach from a wrongful death action filed by Plaintiffs related to the death of their eleven-year-old daughter, Sabrina Nguyen, resulting from a head injury Sabrina sustained at school. The circuit court concluded that these individual defendants were protected from liability by official immunity. For the following reasons, the judgment is reversed in part, and the cause is remanded for further proceedings.

On December 3, 2008, Sabrina was participating in her physical education class at Grain Valley Middle School when she tripped while skipping and struck her head on the cinderblock wall of the school gymnasium and fell to the ground. Classmates helped Sabrina to her feet and escorted her to the gym teacher, Keri Peterson. Peterson noted that Sabrina was crying hysterically, unable to speak, and was bent over holding her head. Peterson asked another teacher, Ryan Evans, to escort Sabrina to the nurse's office. As Evans walked Sabrina down the hallway, she complained of vision problems and Evans had to hold her arm to steady her gait. Evans delivered Sabrina to health aide Francie Aumua in the nurse's office and left without comment. Aumua noted that Sabrina was hysterical and complained that her head hurt very badly. Aumua provided Sabrina with an ice pack for her head and shined a light in her eyes to make sure the pupils “get larger when you put the light on them.” Aumua contacted Sabrina's parents to take her home and wrote a note for them indicating that Sabrina had suffered a minor head injury and that they should wake her up and check on her at midnight to make sure she was normal. Aumua then left Sabrina with a receptionist in the front office and went to lunch. Sabrina's parent's picked her up along with the note.

Haynes woke Sabrina up at midnight, and she appeared to be normal. At 6 a.m., Sabrina indicated that she did not feel like going to school, and her mother told her to go back to bed and get some rest. When Sabrina's mother checked on her again at about 10:30 a.m., Sabrina had turned blue and was not breathing. Neither Sabrina's mother nor paramedics were able to revive Sabrina, who was pronounced dead by the paramedics at 10:46 a.m. An autopsy revealed that Sabrina died as a result of blunt head trauma that had caused skull fractures and hemorrhaging.

On October 14, 2009, the Plaintiffs filed a wrongful death petition against the Grain Valley School District, Grain Valley District Superintendent Dr. Chris Small, Grain Valley Middle School Principal Theresa Nelson, Peterson, Evans, Aumua, district nurse Robin Wagoner, and district nurse Denise Beach. ¹ In short, Plaintiffs alleged that the gymnasium was a dangerous condition for children to be running around in; that the activities the children were engaged in were dangerous; that the children were insufficiently supervised; that Peterson, Evans, and Aumua were negligent in their treatment and handling of Sabrina's injuries; and that the other defendants were negligent in their training and supervision of Peterson, Evans, and Aumua.

On November 17, 2009, the defendants collectively filed a motion to dismiss the Plaintiffs' petition based upon sovereign immunity and official immunity. After the Plaintiffs responded, the trial court entered its order denying the defendant's motion as it related to the school district but postponing a ruling as to the individual defendants pending discovery related to whether those defendants were acting in a discretionary or ministerial capacity.

With leave of the court, the Plaintiffs filed an amended petition on May 13, 2010. The individual defendants filed a second motion to dismiss based upon sovereign immunity and official immunity. Defendant Grain Valley School District filed an answer to the amended petition. On September 7, 2010, the trial court entered a judgment concluding that teachers, nurses, and school administrators are public officials and, therefore, entitled to official immunity as long as the challenged actions were discretionary rather than ministerial.

Following a hearing, on October 6, 2010, the trial court entered its judgment dismissing all of the individual defendants. The trial court noted that the Plaintiffs had not identified any specific statutory or regulatory duty that was breached by the defendants and concluded that they, therefore, failed to establish that the individual defendants' actions were ministerial. The court then certified this matter for appeal, finding that there was no just reason for delay in any appeal from that judgment.² The Plaintiffs bring two points on appeal.

In their first point, the Plaintiffs contend that the trial court erred in dismissing the petition for failure to state a claim upon which relief could be granted. They argue that their petition did not establish, on its face, that official immunity applied to bar their recovery.

Where an affirmative defense is asserted in a motion to dismiss, a trial court may dismiss the petition only if the petition clearly establishes “on its face and without exception” that the defense applies and the claim is barred.” Cornelius v. CJ Morrill, 302 S.W.3d 176, 179 (Mo.App. E.D.2009); Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995) (internal quotation omitted). In this case, the trial court expressly stated that evidence was required for it to rule on the issue of official immunity, evidence was presented and considered by the trial court, and the trial court indicated that it was treating the motion as a motion for summary judgment. Where the trial court entertains matters and evidence outside of the pleadings on a motion to dismiss, the motion to dismiss is converted into a motion for summary judgment, and the judgment is reviewed by this Court as such. Wilson v. Cramer, 317 S.W.3d 206, 208 (Mo.App. W.D.2010). Point denied.

In their second point, the Plaintiffs claim that the trial court erred in granting summary judgment in favor of the individual defendants because the defendants failed to prove that they were public officials engaged in discretionary acts. The Plaintiffs argue that evidence that the teachers chose their own lesson plans and that administrators supervised their subordinates does not establish that the teachers and nursing aide properly utilized discretion in treating Sabrina's injuries.

“This Court's review on an appeal from summary judgment is essentially de novo.” Dydell v. Taylor, 332 S.W.3d 848, 852 (Mo. banc 2011) (internal quotation omitted). “Summary judgment is proper only if the moving party establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” Id. “This Court will review the record in the light most favorable to the party against whom judgment was entered and accords the non-movant the benefit of the all reasonable inferences from the record.” Id. “The movant bears the burden of establishing a legal right to judgment and the absence of any genuine issue of material fact required to support the claimed right to judgment.” Southers v. City of Farmington, 263 S.W.3d 603, 608 (Mo. banc 2008). Where summary judgment has been granted based upon an affirmative defense of official immunity, “we must consider whether there is a genuine dispute as to the existence of facts necessary to support this properly pleaded affirmative defense.” Conway v. St. Louis Cnty., 254 S.W.3d 159, 164 (Mo.App. E.D.2008).

The judicially-created doctrine of official immunity “protects public employees from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts.” ³ Southers, 263 S.W.3d at 610. “Whether an act can be characterized as discretionary depends on the degree of reason and judgment required.” Id. “A discretionary act requires the exercise of reason in the adaptation of means to an end and discretion in determining how or whether an act should be done or course pursued.” Id. The determination of whether an act is discretionary “is made on a case-by-case basis, considering (1) the nature of the public employee's duties; (2) the extent to which the act involves policymaking or exercise of professional judgment; and (3) the consequences of not applying official immunity.” ⁴ Id.

As the party asserting the affirmative defense of official immunity, the individual defendants bore the burden of pleading and proving that they are entitled to that defense. Black & Veatch Corp. v. Wellington Syndicate, 302 S.W.3d 114, 127 (Mo.App. W.D.2009). In its judgment, the trial court improperly shifted this burden to the Plaintiffs, stating that the defendants were entitled to official immunity unless the Plaintiffs identified in their petition a ministerial duty established by a statute or regulation that had been violated by the defendants. The court then based its conclusion that official immunity protected the defendants upon the Plaintiffs' failure to plead a violation of such a statute or regulation.

In requiring that the defendant plead and prove that a plaintiff employed by the government was not entitled to official immunity in order to avoid dismissal, the trial court relies upon Boever v. Special Sch. Dist. of St. Louis Cnty., 296 S.W.3d 487, 492 (Mo.App. E.D.2009), and Brummitt v....