Bumpous v. Tishomingo Cty. Sch. Dist.

391 So.3d 257

Chelsea BUMPOUS and Jason Bumpous O/B/O A.B., Appellants

v.TISHOMINGO COUNTY SCHOOL DISTRICT, Appellee

NO. 2022-CA-01010-COA

Court of Appeals of Mississippi.

11/14/2023

TISHOMINGO COUNTY CIRCUIT COURT, HON. MICHAEL PAUL MILLS JR., JUDGE

ATTORNEYS FOR APPELLANTS: JAMES R. FRANKS JR., WILLIAM R. WHEELER JR.

ATTORNEYS FOR APPELLEE: DANIEL J. GRIFFITH, KATHERINE M. PORTNER, Cleveland

EN BANC.

GREENLEE, J., FOR THE COURT:

¶1. Chelsea and Jason Bumpous, on behalf of their son A.B.,¹ sued the Tishomingo County School District (TCSD) for negligent supervision resulting in A.B.’s injury during show choir class. The Tishomingo County Circuit Court granted summary judgment in favor of TCSD. Finding that there were no genuine issues of material fact and that TCSD was entitled to the judgment as a matter of law, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On February 27, 2020, eighth-grade student A.B. was attending show choir class at Iuka Middle School with other eighth and seventh-grade students. His show choir teacher was Bethany Cheaves.

On that day, Cheaves was preparing for an upcoming class trip to Nashville, Tennessee. Contacting the students’ parents about the trip was on Cheaves’ agenda.

¶3. Show choir was a unique class compared to others at Iuka Middle School in that the students were not expected to stay seated the entire time. Rather than using desks, students sat in fold-up chairs to allow for easy movement around the room. Students were often split into groups, with Cheaves working with particular groups on singing or choreography. When students were not receiving direct teaching from Cheaves, they worked on their singing or choreography alone or in their groups. It was not unusual or against the rules for students to have their cell phones out to help with lyrics or choreography. Students described the class as a "safe" place where all students were friends with each other. Cheaves described the class as "a family."

¶4. On the day of the incident, Cheaves had given the students special permission to have their phones out to contact their parents for permission to attend an upcoming Nashville field trip. Cheaves testified that this was not a typical day of show choir class because of the upcoming trip. Cheaves was sitting at her desk surrounded by three to four other students who had their parents on the phone. Cheaves was talking with each student’s parents to get their permission to drive the students to Nashville. During this time, two students in the class, K.M. and D.C., decided to film a "TikTok challenge." This particular challenge was dubbed "Skull Crusher." The challenge was to trick someone into participating in a "jump challenge," where participants would try and jump as high as they could. Meanwhile, the intention was to kick the unsuspecting jumper’s feet out from under him, causing him to fall. K.M. and D.C. chose their friend A.B. as the unlucky victim.

¶5. K.M. set her phone against the wall and started recording. They walked over to A.B. and asked if he wanted to participate in their "jump challenge." A.B. willingly agreed to participate, unaware of the challenge’s true intentions. The three students were approximately three to six feet away from Cheaves’ desk. When all three students jumped together, K.M. and D.C. kicked A.B.’s legs out from under him, causing him to hit the ground hard. Cheaves testified that she saw A.B. jump and fall. This was disputed by other students’ testimonies that stated Cheaves had her back turned and did not see A.B. fall. Cheaves immediately checked on A.B. and cleared the room.

¶6. The school nurse attended to A.B., and his parents were contacted. He was taken to North Mississippi Medical Center in Tupelo, Mississippi, for treatment and evaluation. One of the school’s administrators took a video of the cell phone recording and deleted the recording on the girl’s phone. There was no evidence that the recording was ever posted to any social media site or sent to any other device. Assistant Principal Smith, who was aware of the TikTok trend, conducted an investigation, and ultimately the students involved were suspended for three days.

¶7. In February 2021 the Bumpouses filed suit against TCSD on behalf of A.B. for negligent supervision. Cheaves, Smith, K.M., D.C., and several other students were deposed. TCSD filed a motion for summary judgment on which a hearing was held. The circuit court granted summary judgment, finding that the injury to A.B. was not foreseeable.

STANDARD OF REVIEW

[1] ¶8. "We review the grant or denial of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the party against whom the motion has been made." Karpinsky v. Am. Nat. Ins. Co., 109 So. 3d 84, 88 (¶9) (Miss. 2013). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). "A material fact is one that matters in an outcome determinative sense." Gillespie v. Lamey, 338 So. 3d 653, 657 (¶9) (Miss. Ct. App. 2022) (internal quotation marks omitted). "[T]he existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact." Id.

DISCUSSION

¶9. The appellants argue that the circuit court erred by granting the appellee’s motion for summary judgment because a genuine issue of material fact exists as to whether or Cheaves and TCSD breached their duty and failed to utilize ordinary care and take reasonable steps to prevent a foreseeable injury.

[2–4] ¶10. To recover for negligent supervision, the Bumpouses bear the burden of proving the existence of a duty, a breach of duty, causation, and damages. Faul v. Perlman, 104 So. 3d 148, 153 (¶14) (Miss. Ct. App. 2012). "Duty and breach must be established first." Chaffee ex rel. Latham v. Jackson Public Sch. Dist., 270 So. 3d 905, 907 (¶10) (Miss. 2019). "The elements of breach and proximate cause must be established by the plaintiff with supporting evidence." Id.

[5, 6] ¶11. "Public schools have the responsibility to use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment." Id. at 907-8 (¶11) (quoting Henderson ex rel. Henderson v. Simpson Cnty. Pub. Sch. Dist., 847 So. 2d 856, 857 (¶3) (Miss. 2003) (quoting L.W. v. McComb Sep. Mun. Sch. Dist., 754 So. 2d 1136, 1143 (¶29) (Miss. 1999), overruled on other grounds by Miss. Transp. Comm’n v. Montgomery, 80 So. 3d 789, 797 (¶26) (Miss. 2012)). "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." J.E. v. Jackson Public Sch. Dist., 264 So. 3d 786, 791 (¶13) (Miss. Ct. App. 2018) (quoting Summers ex rel. Dawson v. St. Andrew's Episcopal Sch. Inc., 759 So. 2d 1203,1213 (¶40) (Miss. 2000)).

¶12. Both parties agree that TCSD had a duty of ordinary care to A.B. The Bumpouses’ sole argument on appeal is that genuine issues of material facts remain in the case. TCSD argues that there are no material facts in dispute.

¶13. The Bumpouses’ disputed facts can be broken down into four categories: (1) Cheaves’ classroom cell phone policy; (2) Cheaves’ inattentiveness; (3) Cheaves’ witnessing the event; and (4) Assistant Principal Smith’s knowledge of this TikTok challenge and lack of proper dissemination to the teachers.

[7] ¶14. We find there are no disputed material facts as to Cheaves’ classroom cell phone policy. The Bumpouses do not dispute that Cheaves allowed the students to have their phones out on the day of A.B.’s injury. Rather, they provide testimony from A.B. and his fellow classmates that throughout the semester students often had their phones out in class despite no explicit permission.

¶15. The Bumpouses’ reliance on the school’s cell phone policy is misplaced. The fact that students had their phones out on the day of A.B.’s injury does not support the Bumpouses’ claim of breach because students had Cheaves’ permission. Furthermore, Smith testified that it was not unusual or against the rules for students to use their phones in show choir class. The school’s cell phone policy was based on the guideline that individual teachers have the option to enforce how cell phones are used or allowed in class. Smith testified that she was okay with the show choir students using their phones to assist with their learning in that class. As noted above, the duty of ordinary care is that of a reasonable person acting in similar circumstances—in this case, a reasonable show choir teacher. J.E., 264 So. 3d at 791 (¶13). The use of cell phones that day was permitted and reasonable considering how cell phones were used in show choir and that parental engagement/permission was needed for the upcoming trip.

[8] ¶16. The Bumpouses’ argument about Cheaves’ inattentiveness has a similar problem as the cell phone issue. Much of the Bumpouses’ evidence points to Cheaves’ allegedly improper supervision generally throughout the semester, not just on the day of the incident. Taking all inferences in favor of the Bumpouses, we assume that Cheaves was often an inattentive teacher in show choir class. However, the only fact disputed on the day of the incident was whether Cheaves actually witnessed A.B. jump and fall. While this is in dispute, the fact is not material and does not provide support against the grant of summary judgment. Said another way, even if Cheaves did not witness A.B. fall, that does not show that Cheaves breached her duty as a reasonable show choir teacher.

¶17. In Slade v. New Horizon Ministries Inc., 785 So. 2d 1077, 1079 (¶12) (Miss. Ct. App. 2001), this Court ruled in favor of a school in a negligent...