Cotton v. Smith

310 Ga.App. 428

714 S.E.2d 55

270 Ed. Law Rep. 885

11 FCDR 2244

COTTON

v.SMITH et al.

No. A11A0390.

Court of Appeals of Georgia.

July 1, 2011.

Mayer & Harper, Randolph A. Mayer, Mark Harper, Atlanta, for appellant.Hall, Booth, Smith & Slover, Kenneth Drew Jones, Kevin Andrew Leipow, Atlanta, for appellees.ELLINGTON, Chief Judge.

On the morning of September 3, 2008, a LaGrange High School front office employee allowed a 14–year–old student, N.F., to leave school with a middle-aged man who claimed to be the girl's uncle. Shortly thereafter, the man, a 52–year–old convicted felon who had given the employee a fake name and who was not related to N.F., took her to a house and molested her. N.F.'s mother, LaTasha Cotton, as parent and next friend of the girl, filed a negligence suit against the employee, Deann Smith, and her supervisor, school principal Steven Cole, in their individual capacities. Cotton now appeals from an order of the Superior Court of Troup County granting summary judgment in favor of both defendants. Cotton contends that the trial court erred in finding as a matter of law that Smith's duties in determining whether to release a student from school were discretionary in nature, not ministerial, and that, as a result, Smith was entitled to official immunity from liability for her claims. Cotton also argues that the court erred in finding, alternatively, that, even if Smith violated a ministerial duty, such violation was not the proximate cause of N.F.'s injuries, because they were the result of an unforeseeable criminal act by a third party. As explained below, we reverse the trial court's grant of summary judgment to Smith, while the court's grant of summary judgment to Cole is affirmed by operation of law.

1. As an initial matter, Cotton has failed to assert on appeal any error in the trial court's grant of summary judgment to Cole. Thus, any error in that portion of the court's order is deemed abandoned, and the court's grant of summary judgment to Cole is affirmed by operation of law. See Court of Appeals Rule 25(c)(2); Lang v. Becham, 243 Ga.App. 132, 530 S.E.2d 746 (2000) (because the appellant presented no specific argument, cited no authority, and made no reference to the transcript or record to support a claim of error regarding the grant of summary judgment to one of the appellees, any error as to that appellee was deemed abandoned).

2. Cotton contends that the trial court erred in finding as a matter of law that Smith's duties in determining whether to release a student from school were discretionary in nature, not ministerial, and that, as a result, Smith was entitled to official immunity from liability for her claims.

In order to prevail on a motion for summary judgment under OCGA § 9–11–56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment[,] the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470, 629 S.E.2d 204 (2006). Viewed in this light, the record shows the following, undisputed facts.¹

On September 3, 2008, N.F. was a 14–year–old freshman student at LaGrange High School, which had an enrollment of approximately 1,400 students. The school maintained a computerized “master file” on each student which contained, among other things, a list of people who were authorized to check the student out of school during regular school hours. Further, all incoming students that year received a copy of LaGrange High School's “Student Planner 2008–2009,” which contained the following relevant provision in the section entitled “Check Out Early”:

Students checking out of class early must check out on their “early out record” card in the front office. A parent note, doctor appointment note, court appearance summons, or other certified documentation must be presented to the attendance clerk at the time of check out each time a student checks out. The note must have a phone number whereby the parent can be reached by an administrator for verification.... Students without a note will not be granted permission to leave. Students will not be granted permission to leave based on telephone requests. Students without notes must be signed out by a parent or guardian.

(Emphasis in original.) Defendant Smith, the front office employee, admitted during her deposition that she was familiar with the student planner and the quoted provision and that the planner contained “rules” that tell school employees and students what they are supposed to do and what the school expects from them. In fact, Smith admitted that she considered the above provision to be a “requirement” that had to be met before a student would be allowed to leave school early, adding that she checked students in and out of school “at least 150 times a day.” During his deposition, the school principal, Cole, agreed that compliance with the provision was mandatory, and he testified that the purpose of the rules in the student planner was, at least in part, to protect the students.

Although the 2008–2009 school year started in early August 2008, N.F. did not start her freshman year until mid-August, about two weeks before the incident at issue in this case. N.F. had not checked out of school through the front desk prior to September 3, however, and Smith admitted that, on that date, she did not know N.F. or the girl's parents. N.F.'s computerized master file showed that the only people who were authorized to check her out were her mother, Cotton, and her father, “Vincent Cameron.” Even so, at approximately 9:37 a.m. on September 3, a middle-aged man approached Smith at the school's front desk and told her that he was there to check N.F. out of school for an appointment.² Smith did not recognize the man, who was later identified as 52–year–old convicted felon Joseph Hardy, so she asked him for his name, and Hardy responded that he was the girl's uncle, “Frank F___.” Smith did not ask to see Hardy's driver's license or other identification, ³ but had him sign a “check-out card” for N.F. while she called N.F.'s class and asked her to come to the front desk. Shortly thereafter, N.F. arrived at the front desk and then left school with Hardy. According to N.F., Hardy told her that her mother had asked him to pick her up from school and that her mother was going to meet them.⁴ Hardy then drove N.F. to his daughter's house, where he molested her.⁵

Cotton filed suit against Smith and Smith's supervisor, school principal Cole, contending that Smith was negligent in releasing N.F. to Hardy and that Cole negligently supervised Smith. In response to the defendants' assertion that they were protected by official immunity, Cotton contended that, when Smith failed to ask Hardy for identification to confirm his name and failed to check N.F.'s master file to see if “Frank F___” was authorized to check N.F. out from school, Smith breached her ministerial duty to take specific actions that were mandated by the school and the county school board.

In support of these contentions, Cotton showed, in addition to the above evidence, that the Troup County School System had an “Emergency Preparedness Plan” for LaGrange High School and that the plan included two relevant sections. The section entitled “F. School Visitors,” stated as follows:

The Troup County staff considers the parents of its student[ ]s one of its greatest assets. While all parents are encouraged to be active participants in the education of their children, several measures are taken to ensure that the open-door policy does not jeopardize the safety of the students or staff.... Signs are posted on all doors welcoming visitors by directing them to the office. Once in the office, visitors must state the nature of their business and will be asked for identification if the office staff does not know them.

(Emphasis supplied.) Further, the section entitled “G. Student Sign–In and Out,” included the following provision:

Students who arrive after the tardy bell must be signed-in. Parents or other authorized persons who wish to pick up students before regular dismissal time must report to the office to sign the student out. Office staff will routinely ask for picture ID and check[ ] to see [if] that person is on the list of those authorized to pick up that particular student. Students are then called to the office[,] where they are signed out. Any student who leaves early must be signed out through the office.

(Emphasis supplied.) Moreover, Cotton showed that the Troup County Board of Education's “Administrative Regulations, Dismissal Precautions” contained the following relevant directions for “Early Dismissal” of students:

1. When a child leaves school early, a note, stating the time of departure and the reason for leaving, should be sent to the office....

4. Occasionally, divorced parents or other relatives request permission to take a child from school. When the other parent has been given legal custody of the child, principals must be very tactful. In case there is [a] question about the right of the parent or relative to take the child from school, the principal is justified in requesting the person to show evidence that he/she has legal custody of the child or permission of the legal guardian.

5. A pupil should never be released to an unidentified person.

(Emphasis supplied.)

The testimony of two of the assistant principals at LaGrange High School, Kimberly Parks and Kenneth Redding, supports a finding that the policies and procedures of both the high school and the school board are mandatory rules to...