T.M. v. Noblitt, 91-CA-00536

Citation650 So.2d 1340
Decision Date12 January 1995
Docket NumberNo. 91-CA-00536,91-CA-00536
Parties98 Ed. Law Rep. 599 T.M., as Next Friend of E.N.M. v. Donna NOBLITT, individually and as Principal, Casey Elementary School.
CourtUnited States State Supreme Court of Mississippi

Isaac K. Byrd, Jr., Rhonda C. Cooper, Pieter John Teeuwissen, Byrd & Associates, Jackson, for appellant.

Pamela W. Dill, James A. Keith, Brunini Grantham Grower & Hewes, Jackson, for appellee.

Before HAWKINS, C.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.

SMITH, Justice, for the Court:

This case comes on appeal from an order of dismissal entered in the Circuit Court of Hinds County, Mississippi. The lower court determined Principal Noblitt, appellee herein, was entitled to qualified public immunity which effectively shielded her from liability in response to appellants' charges that she was negligent in carrying out the performance of certain tasks in her capacity as a public school official. We are of the opinion that the lower court correctly articulated the law of qualified public official immunity, but find that the dismissal of this cause was premature. Finding the matter is more properly suited for consideration following further discovery, we remand.

FACTS

On October 29, 1990, T.M. filed her original complaint on behalf of her minor daughter against Donna Noblitt, (Noblitt), principal of Casey Elementary School; Ben Canada, Superintendent of the Jackson Public School District; and all members of the Jackson Public School District Board of Trustees. The complaint charged the District officials with negligent retention and supervision of an employee, and Noblitt with negligent violation of a state statute. All defendants were dismissed by Memorandum Opinion and Order entered by Judge James D. Bell, Special Circuit Court Judge, on January 25, 1991.

On February 25, 1991, T.M. filed her Amended and Restated Complaint naming the same defendants, in their individual and official capacities, as well as naming Demetrist Perryman, a teacher's aide employed at Casey Elementary School. On March 27, 1991, T.M. filed a voluntary motion to dismiss all the defendants except Principal Noblitt and Perryman.

As this appeal stems from a Rule 12(b)(6) motion for dismissal, Noblitt for purposes of this appeal only has accepted the facts as set It was alleged that defendant Perryman, while under the supervision of defendant Noblitt, exhibited a propensity to fondle and sexually molest children, including minor plaintiff who was six years old. Minor plaintiff's mother notified defendant Noblitt of Perryman's molestation of minor plaintiff. Minor plaintiff's mother was advised that Perryman would be relieved of his duties. Noblitt failed to report said abuse as required by statute. As a result, plaintiff and her mother suffered mental anguish and trauma, anxiety and distress. Plaintiff alleged further that Noblitt's actions were grossly negligent and showed a careless disregard for the rights of minor plaintiff.

forth in T.M.'s complaint as true. T.M.'s statement of facts is as follows:

The court by Memorandum Opinion and Order dated April 25, 1991, concluded that the complaint as amended failed to state a set of facts which would pierce Noblitt's shield of qualified immunity and upon which relief could be granted.

Counsel for Noblitt responded with an Amended Motion to Dismiss and for Sanctions stating that the amended complaint again named Noblitt in her official capacity despite the previous order of dismissal, and raised no new allegations. By Memorandum Opinion and Order dated April 25, 1991, Judge James E. Graves, Jr., the complaint against Noblitt was dismissed in both her individual and official capacities. The motion for sanctions was denied.

Feeling aggrieved, T.M. perfected an appeal to this Court on May 23, 1991, and assigns the following issues for review:

I. IS DEFENDANT NOBLITT IMMUNE FROM COMPLAINT IN HER INDIVIDUAL CAPACITY?

II. DID THE TRIAL COURT ERR IN DISMISSING THE COMPLAINT BEFORE ANSWER BY THE DEFENDANTS AND BEFORE ANY DISCOVERY HAD BEEN COMPLETED?

DISCUSSION

I. IS DEFENDANT NOBLITT IMMUNE FROM COMPLAINT IN HER INDIVIDUAL CAPACITY?

Standard of Review

A motion to dismiss under Miss.R.Civ.P. 12(b)(6) raises an issue of law. Tucker v. Hinds County, 558 So.2d 869 (Miss.1990); Lester Engineering Co. v. Richland Water and Sewer District, 504 So.2d 1185, 1187 (Miss.1987). This Court conducts de novo review on questions of law. UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So.2d 746, 754 (Miss.1987).

When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim. Overstreet v. Merlos, 570 So.2d 1196 (Miss.1990); DeFoe v. Great Southern National Bank, 547 So.2d 786 (Miss.1989); Comet Delta, Inc. v. Pate Stevedore Co. of Pascagoula, Inc., 521 So.2d 857 (Miss.1988).

T.M. contends that Noblitt was "merely an employee of the school district," held no policy-making position, and performed purely ministerial acts. The complaint charges Noblitt was "grossly negligent in failing to report to the Department of Public Welfare her knowledge of Perryman's conduct with and abuse of plaintiff." Thus, particularly focusing on her "duty" to report child abuse under Miss.Code Ann. Sec. 43-21-353 (Supp.1991), the plaintiff contends that Noblitt is entitled to no immunity.

Noblitt responds that since she was employed by a political subdivision of the State of Mississippi and was required to perform discretionary duties, qualified immunity does extend to her.

In dismissing the complaint against Noblitt, the trial court noted:

Plaintiff's Amended and Restated Complaint charges defendant Noblitt with negligent retention and supervision of defendant Perryman and with negligent violation of statute. Qualified immunity provides public officials such as Noblitt with This Court has determined limited immunity applies to "those actions by a state agency, an arm of the state or local government and the members thereof, who either for remuneration or as public service, engage in discretionary functions for which the agency or the arm of government was set up." Hudson v. Rausa, 462 So.2d 689, 694 (Miss.1984). Thus, Noblitt as an employee of the Jackson Public School District would be entitled to limited immunity if she is found to engage in discretionary duties in the performance of her job. Noblitt argues that her duty to report instances of child abuse is included within the discretionary acts she performs in her capacity as school principal.

protection from suits resulting from the performance of discretionary duties. Davis v. Little, 362 So.2d 642, 644 (Miss.1978). A duty is discretionary if it requires the official to use her own judgment and discretion in the performance thereof. Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 923 (1935).

The issue of common law qualified immunity was recently revisited in Womble v. Singing River Hosp., 618 So.2d 1252 (Miss.1993). Therein the Court stated:

Common law qualified immunity has traditionally sought to protect the discretion of public officials so that those officials would not be deterred by the threat of suit from making decisions and formulating policies that are in the public good. State of Mississippi for the Use and Benefit of Brazeale v. Lewis, 498 So.2d 321, 322 (Miss.1986); Pruett v. City of Rosedale, 421 So.2d 1046, 1052 (Miss.1982); and Hudson, 462 So.2d 689, 695 (citing Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir.1949) (Learned Hand, J.); See also, generally, Wyatt v. Cole, 504 U.S. [----], [---- - ----], 112 S.Ct. 1827, 1832-1833, 118 L.Ed.2d 504, 514-15 (1992) (contains thorough discussion of the history of and rationales underlying common law public official immunity). In Lewis, this Court noted that qualified immunity for the discretionary acts of public officials has evolved '[i]n order to allow our lawmakers and government officials to participate freely and without fear of retroactive liability in risk-taking situations requiring the exercise of sound judgment.' 498 So.2d at 322. In Gregoire v. Biddle, Justice Learned Hand said of qualified immunity:

The justification for doing so is that it is impossible to know whether the claim is well-founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matters from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.

177 F.2d 579, 581 (quoted in Hudson, 462 So.2d at 695). We noted a further rationale for removing such policy decisions from the purview of the Court in Pruett v. City of Rosedale, where we said

Judicial review of basic policy-making decisions continues to be regarded by many as inappropriate because courts have no standards by which to judge such decisions. Judges and jurors are in no better position to evaluate the reasonableness of policy determinations than are those officials who are charged with making them. The reasonable man...

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