State ex rel. Alsup v. Kanatzar

Decision Date10 December 2019
Docket NumberNo. SC 97427,SC 97427
Parties STATE of Missouri EX REL. Carlos D. ALSUP, Relator, v. The Honorable James F. KANATZAR, Respondent.
CourtMissouri Supreme Court

Alsup was represented by J. Andrew Marriott and Ryan VanFleet of EdCounsel LLC in Independence, (816) 252-9000.

The student was represented by Timothy H. Bosler Jr. and Timothy H. Bosler of Bosler Law Firm PC in Liberty, (816) 781-0085.

Paul C. Wilson, Judge

Israel Mariano ("Mariano"), a student at Independence Academy, filed a negligence suit against Relator, Carlos Alsup ("Alsup"), an in-school suspension teacher. Mariano sued Alsup in his individual capacity for the personal injuries Mariano sustained when Alsup physically restrained him and broke his arm. Alsup filed a motion for summary judgment, claiming he was entitled to official immunity, but the circuit court overruled the motion. Alsup now seeks a writ of prohibition barring the circuit court from taking any further action other than to vacate its order overruling Alsup’s motion for summary judgment and to enter judgment for Alsup. This Court has the authority to "issue and determine original remedial writs[,]" Mo. Const. art. V, § 4.1, and this Court’s preliminary writ of prohibition is now made permanent.


On April 28, 2016, Mariano was reluctant to go to school and refused to get on the school bus at his home. Mariano’s mother called Independence Academy to inform them that Mariano refused to get on the bus and that she would bring him to school in her own vehicle. When she arrived at Independence Academy, Mariano’s mother physically struggled to get him into the school. Once inside the school, Mariano’s mother turned him over to Alsup and another staff member, who took hold of him. In the course of physically restraining him, Alsup broke Mariano’s arm. At the time of this incident, Alsup was employed as an in-school suspension teacher at Independence Academy, an alternative school operated by the Independence School District ("District").

By statute, school districts are required to adopt a written policy addressing the use of restrictive behavioral interventions. See § As a result, the District adopted District Board Policy 2770 ("Policy 2770"). Pursuant to Policy 2770, an in-school suspension teacher is permitted to physically restrain students in three situations: (1) "[i]n an emergency situation;"2 (2) "[w]hen less restrictive measures [have] not effectively deescalated the situation;" and (3) when otherwise specified by various types of plans.3 Policy 2770 also provides physical restraint shall "[o]nly be used for as long as necessary to resolve the actual risk of danger or harm that warranted the physical restraint." And the school personnel using physical restraint shall "[u]se no more than the degree of force necessary to protect the student or other persons from imminent physical harm." Further, Policy 2770 permits the school personnel using physical restraint to only "[u]se methods of restraint in which the personnel has received district approved training."4

In addition to the guidelines set forth in Policy 2770, the District also provides its employees with training through the Crisis Prevention Institute ("CPI"). Alsup attended this training program as required by his employment. Generally, the CPI training program provides District employees with guidelines, strategies, and methods for deescalating emergency situations. The program also provides training for multiple methods of physically restraining a student.5

Mariano filed suit alleging Alsup was negligent in physically restraining Mariano and seeking damages for his injuries. Alsup filed two motions to dismiss, both of which were overruled. Alsup later filed a motion for summary judgment, arguing he was entitled to official immunity. The circuit court overruled Alsup’s motion. Alsup sought a writ of prohibition in the court of appeals, which was denied, and now seeks the same relief in this Court.


" ‘Immunity’ connotes not only immunity from judgment but also immunity from suit." State ex rel. Mo. Dep't of Agric. v. McHenry , 687 S.W.2d 178, 181 (Mo. banc 1985). When a defendant is entitled to immunity as a matter of law, "prohibition is an appropriate remedy." State ex rel. Twiehaus v. Adolf , 706 S.W.2d 443, 444 (Mo. banc 1986).

Two types of immunity often are confused when suit is brought against a governmental official. Southers v. City of Farmington , 263 S.W.3d 603, 610 (Mo. banc 2008). Broadly speaking, sovereign immunity protects governmental entities from tort liability and can be invoked when a governmental official is sued only in his or her official capacity. See id. Official immunity, on the other hand, protects public officials sued in their individual capacities "from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts." Id.6

At issue here is the doctrine of official immunity, which this Court has long held protects a public official from liability if that official acts within the course of his official duties and without malice.7 Id. at 610 & n.7 (citing Reed v. Conway , 20 Mo. 22, 52 (1854) ). The purpose of this doctrine is to allow public officials to "make judgments affecting the public safety and welfare" without "[t]he fear of personal liability." Green v. Denison, 738 S.W.2d 861, 865 (Mo. banc 1987), overruled on other grounds by Davis v. Lambert-St. Louis Int'l Airport , 193 S.W.3d 760, 765 n.8 (Mo. banc 2006). This is because, "[i]f an officer is to be put in fear of financial loss at every exercise of his official functions, ... the interest of the public will inevitably suffer...." Smith v. Berryman , 272 Mo. 365, 199 S.W. 165, 167 (Mo. banc 1917).

Indeed, "[c]ourts and legal commentators have long agreed that society’s compelling interest in vigorous and effective administration of public affairs requires that the law protect those individuals who, in the face of imperfect information and limited resources, must daily exercise their best judgment in conducting the public’s business." Kanagawa v. State ex rel. Freeman , 685 S.W.2d 831, 836 (Mo. banc 1985). Therefore, when a public official asserts the affirmative defense of official immunity, she should be afforded such immunity so long as she was acting within the scope of her authority and without malice. Green v. Lebanon R-III Sch. Dist. , 13 S.W.3d 278, 284 (Mo. banc 2000) ("Under the doctrine of official immunity, a public official is not liable to members of the public for negligence that is strictly related to the performance of discretionary duties.") (citing Green, 738 S.W.2d at 865 ).

Courts applying the doctrine of official immunity must be cautious not to construe it "too narrowly lest they frustrate the need for relieving public servants of the threat of burdensome litigation." Kanagawa , 685 S.W.2d at 836 (quotation marks omitted). There is, however, a narrow exception to the application of the official immunity doctrine – i.e., when a public officer fails to perform a ministerial duty required of him by law, he may be personally liable for the damages caused. Knox County. v. Hunolt , 110 Mo. 67, 19 S.W. 628, 630 (Mo. 1892). This narrow exception, therefore, focuses on the nature of a ministerial act.

Generally, a ministerial act has long been defined as merely "clerical." E.g. , McFaul v. Haley , 166 Mo. 56, 65 S.W. 995, 998 (Mo. 1901). And this Court has noted that a ministerial duty compels a task of such a routine and mundane nature that it is likely to be delegated to subordinate officials. See, e.g., id. ; Albright v. Fisher , 164 Mo. 56, 64 S.W. 106, 110 (Mo. 1901). For more than a century, this Court has held that a ministerial or clerical duty is one in which a certain act is to be performed "upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority, and without regard to [the public official’s] judgment or opinion concerning the propriety or impropriety of the act to be performed." State ex rel. Forgrave v. Hill , 272 Mo. 206, 198 S.W. 844, 846 (Mo. banc 1917) (quotation marks omitted). Thus, the central question is whether there is any room whatsoever for variation in when and how a particular task can be done. If so, that task – by definition – is not ministerial. See, e.g. , State ex rel. Clarke v. West , 272 Mo. 304, 198 S.W. 1111, 1113 (Mo. banc 1917) (holding mandamus will not lie to direct "the particular action he will take in the matter" when law authorizes the officer to choose between alternatives).

The task of identifying ministerial acts that fall outside the protections of official immunity is similar to the task of identifying ministerial acts that a writ of mandamus will issue to compel an official to perform. See State ex rel. Howser v. Oliver , 116 Mo. 188, 22 S.W. 637, 639 (Mo. 1893) ("It is well settled that mandamus will lie against a public officer to compel the performance of a mere ministerial act...."). In fact, the test for whether a task is "ministerial" for purposes of a writ of mandamus is precisely the same as the test for whether that task is "ministerial" such that official immunity will not apply. Compare Curtis v. Mo. Democratic Party , 548 S.W.3d 909, 915 (Mo. banc 2018) ("A ministerial duty is a duty of a clerical nature which a public officer 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.") (quotation and emphasis omitted), and State ex rel. Kan. City Power & Light Co. v. McBeth , 322 S.W.3d 525, 531 (Mo. banc 2010) (same), with Southers , 263 S.W.3d at 610-11 ("A ministerial function ... is one of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience...

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