BOATRIGHT v. COPELAND Et Al.

THIRD DIVISION

DILLARD, J.

MCFADDEN and PETERSON, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

March 9, 2016

In the Court of Appeals of Georgia

A15A2043. BOATRIGHT v. COPELAND et al. PE-039

PETERSON, Judge.

Tracy Boatright appeals the dismissal of his personal injury lawsuit against the

Appling County school superintendent and school board members. He argues that,

because the school district violated its ministerial duty to comply with state law

prohibiting weapons like the cannon that injured him, the trial court erred in finding

that official immunity bars his claims. We reverse because the trial court erred when

it concluded that interpreting the criminal law of this state was a discretionary act

within the scope of authority of the school board and school superintendent.

We review the trial court’s grant of a motion to dismiss de novo. See TechBios

v. Champagne, 301 Ga. App. 592, 593 (688 SE2d 378) (2009). “A motion to dismiss

may be granted only where a complaint shows with certainty that the plaintiff would

not be entitled to relief under any state of facts that could be proven in support of his

claim.” Alcatraz Media v. Yahoo!, 290 Ga. App. 882, 882 (660 SE2d 797) (2008)

(citation omitted). For purposes of this review, we take as true all the factual

allegations in the complaint. Brantley v. Dep’t of Human Res., 271 Ga. 679, 679 n.3

(523 SE2d 571) (1999).

So viewed, Boatright’s amended complaint asserted that, during an Appling

County High School football game, he was assisting in loading and firing a cannon

owned by the Appling County School District. While Boatright was compressing the

gunpowder in the cannon with a rod, it discharged, launching the rod into the air. The

explosion permanently injured Boatright’s hand. Boatright brought a personal injury

suit against the school district’s superintendent, Scarlett Miles Copeland, and school

board members Randy Crawford, Randy Sellers, Jeffrey Miller, Scottie Ammons, and

Cindy Tomberlin (collectively, “Defendants”), asserting claims for negligence per se

and premises liability/negligence on the theory that Defendants were negligent in

allowing the cannon to be present and used in a school safety zone and at a school

function in violation of OCGA § 16-11-127.1. Defendants filed a motion to dismiss

on the basis of official immunity, which the trial court granted, finding that

Defendants had “discretion to interpret the law and decide that particular conduct

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does not violate it[,]” and to decide that the cannon was permitted by the “classroom

work” exception to the general prohibition on weapons on campus found in OCGA

§ 16-11-127.1. This appeal followed.

Boatright argues that the trial court erred by concluding that Defendants were

entitled to official immunity. We agree.

The doctrine of official immunity protects individual public agents from

personal liability for discretionary actions taken within the scope of their

official authority, and done without wilfulness, malice or corruption. A

discretionary act requires personal deliberation and judgment, which

entails examining the facts, reaching reasoned conclusions, and acting

on them in a way not specifically directed.

Aliffi v. Liberty Cnty. School Dist., 259 Ga. App. 713, 715 (578 SE2d 146) (2003)

(citation omitted). “The rationale for this immunity is to preserve the public

employee’s independence of action without fear of lawsuits and to prevent a review

of his or her judgment in hindsight.” Taylor v. Campbell, 320 Ga. App. 362, 363 (739

SE2d 801) (2013) (citation omitted). But this immunity for discretionary acts does not

extend to ministerial acts. “A ministerial act is commonly one that is simple, absolute,

and definite, arising under conditions admitted or proved to exist, and requiring

merely the execution of a specific duty.” Aliffi, 259 Ga. App. at 715 (citation

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omitted). For example, “[a] ministerial duty may be established by evidence such as

a written policy, an unwritten policy, a supervisor’s specific directive, or a statute.”

Roper v. Greenway, 294 Ga. 112, 114-15 (751 SE2d 351) (2013) (citations omitted).

A public officer or employee may be personally liable for ministerial acts negligently

performed, or for ministerial acts he or she negligently failed to perform. Taylor, 320

Ga. App. at 363; see also GA. CONST. Art. I, Sec. II, Para. IX(d); Gilbert v.

Richardson, 264 Ga. 744, 752 (6) (452 SE2d 476) (1994).

Here, Boatright does not argue that Defendants acted wilfully or with malice,

but rather argues that they negligently performed their ministerial duty to comply with

the prohibition on weapons in school safety zones and at school functions imposed

by OCGA § 16-11-127.1. He also argues that, due to the current procedural posture

of the case, we cannot definitively determine that Defendants are entitled to official

immunity. We agree.

1. The trial court erred in concluding that official immunity applied to

Defendants’ exercise of discretion in interpreting Georgia criminal law.

a. In this procedural posture, we assume that Boatright may be able to

prove facts showing that possession or control of the cannon at football games

violates OCGA § 16-11-127.1. OCGA § 16-11-127.1 makes it “unlawful for any

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person to carry to or to possess or have under such person’s control while within a

school safety zone, [or] at a school function . . . any weapon or explosive

compound[.]” OCGA § 16-11-127.1(b)(1).

Cannons, of course, will usually qualify as “weapon[s]” within the definition

of the statute. A “weapon” is defined as including “any pistol, revolver, or any

weapon designed or intended to propel a missile of any kind . . . “ OCGA § 16-11-

127.1(a)(4). Cannons are generally designed to propel missiles, and this is precisely

what the cannon at issue here is alleged to have done; that it allegedly fired a rod by

accident, instead of a cannonball on purpose, is of no moment to a definition focused

on general design. We can affirm the dismissal of Boatwright’s complaint only if we

conclude that he can prove no set of facts consistent with his complaint that entitle

him to relief. See S-D RIRA, LLC v. Outback Prop. Owners’ Ass’n, 330 Ga. App. 442,

448 (1) (765 SE2d 498) (2014). We lack any basis for concluding that Boatwright

cannot prove a set of facts showing that the cannon at issue here was designed to fire

a missile, and thus we presume for purposes of this appeal that the cannon is a

weapon within the meaning of the statute. Of course, if on remand facts are developed

showing otherwise, this decision does not preclude the trial court from reaching a

different conclusion.

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Presuming thusly that the cannon is a “weapon” under OCGA § 16-11-127.1,

we next consider whether the cannon is subject to the statute’s prohibition, and

conclude that it is. Boatwright alleges that the cannon was present and used at a

school function (a location in which the statute prohibits possession of weapons) and

on school property (which, whether owned or leased by the school district, qualifies

as a “school safety zone” and is, therefore, also a location in which the statute

prohibits possession of weapons). See OCGA § 16-11-127.1(a)(2, 3). The statute

contains several narrow exceptions to this general prohibition, but the only exception

arguably applicable here appears in OCGA § 16-11-127.1(a)(4), which carves out

from the definition of “weapon” any item “used for classroom work authorized by the

teacher.” But can firing a cannon on a football field as part of a football game’s

festivities be considered “classroom work”? Not in this case, at least.

When we consider the meaning of a statute, we must presume that the

General Assembly meant what it said and said what it meant. To that

end, we must afford the statutory text its plain and ordinary meaning, we

must view the statutory text in the context in which it appears, and we

must read the statutory text in its most natural and reasonable way, as an

ordinary speaker of the English language would.

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Deal v. Coleman, 294 Ga. 170, 172-73 (1) (a) (751 SE2d 337) (2013) (citations and

internal punctuation omitted). The plain text and structure of the (a)(4) exception is

limited to classroom work done with the authorization of a teacher. This is not a

blanket exception for all school-related – or even school-authorized – uses. Whether

or not the exception requires classroom work to be done in the classroom, it clearly

requires the work to arise from the classroom environment and with the authorization

of the classroom teacher. There is no allegation or argument that the use of the

cannon did so here. Not even the greatest possible respect for the life lessons learned

through the game of football can warrant interpreting the statutory term “classroom

work” as applying to firing a cannon on a football field as part of a football game

without any relation to a classroom or a teacher. The (a)(4) exception is not

applicable.

b. Defendants’ hypothetical erroneous interpretation of OCGA § 16-11-

127.1 does not entitle them to immunity.

The trial court held that Defendants had discretion to conclude that it would be

absurd to read OCGA § 16-11-127.1 as (1) allowing teachers to bring cannons into

classrooms while (2) prohibiting administrators from allowing cannons to be present

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outdoors.1 But as we have already explained, that is precisely what the text of the

statute means. Defendants lack the authority to construe it otherwise, so they cannot

be granted immunity for having done so.

We observed nearly 20 years ago that “[t]he time and effort our Legislature has

spent in perfecting [OCGA § 16-11-127.1] reflects the inherent difficulty in

developing restrictions when education is involved.” In the Interest of R.F.T., 228 Ga.

App. 719, 720 (1) (492 SE2d 590) (1997) (physical precedent only). At the time of

that observation, the General Assembly had amended this Code section three times

since its 1992 enactment; in the 19 years since our decision in R.F.T., the General

Assembly has amended OCGA § 16-11-127.1 an additional 16 times. See Ga. L.

1999, p. 362, § 1; Ga. L. 2000, p. 20, § 6; Ga. L. 2000, p. 1630, § 4; Ga. L. 2003, p.

140, § 16; Ga. L. 2008, p. 533, § 3; Ga. L. 2008, p. 1199, § 5; Ga. L. 2009, p. 8, § 16;

Ga. L. 2010, p. 463, § 2; Ga. L. 2010, p. 963, § 1-4; Ga. L. 2013, p. 294, § 4-10; Ga.

L. 2014, p. 432, § 1-1; Ga. L. 2014, p. 599, § 1-6; Ga. L. 2015, p. 5, § 16; Ga. L.

2015, p. 274, § 1; Ga. L. 2015, p. 422, § 5-27; Ga. L. 2015, p. 805.

1

The trial court observed that Defendants almost certainly did not perform any

such analysis, and likely instead simply retained the cannon-firing traditions of their

predecessors. It is unclear what relevance to this lawsuit might be found in immunity

for an act Defendants did not perform.

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Whether or not the Appling County school board and school superintendent

agree with the precise balance the General Assembly has struck, acting contrary to

that balance far exceeds any possible construction of the scope of their authority.

“The doctrine of separation of powers is an immutable constitutional principle which

must be strictly enforced. Under that doctrine, statutory construction belongs to the

courts, legislation to the legislature.” Allen v. Wright, 282 Ga. 9, 12 (1) (644 SE2d

814) (2007). Neither of those powers are granted to school boards or

superintendents.2 Because official immunity applies only to discretionary acts within

the scope of Defendants’ authority, the trial court erred in concluding that Defendants

were entitled to immunity.

2. Compliance with the criminal law of this state is a ministerial duty, and

Defendants are not entitled to official immunity at this point in the case.

2

Defendants cite Grammens v. Dollar as precedent for school officials’

discretionary authority to construe statutes. 287 Ga. 618 (697 SE2d 775) (2010). But

Grammens did not involve a statute at all. There, a school policy required protective

eyewear to be worn when explosive materials were being used, and our Supreme

Court held that because the policy did not define “explosive materials,” the language

of the policy imposed a discretionary duty on teachers to determine what materials

qualified. This bears no resemblance whatsoever to determining that the plain

language of a criminal statute need not be followed because of a belief that it is

absurd.

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Because we conclude that Defendants did not perform a discretionary act

within the scope of their authority, we next consider whether Boatwright has

sufficiently pled negligent breach of a ministerial duty.

“A school official does not have legal discretion to participate in a crime[.]”

Caldwell v. Griffin Spalding Cnty. Bd. of Educ., 232 Ga. App. 892, 893 (503 SE2d

43) (1998) (physical precedent only). “Compliance with the law is mandatory, and in

that sense arguably ‘ministerial.’” Id. at 894. This case is necessarily different from

those in which the defendants were accused of failing to stop third parties from

violating the law, because here Defendants are the ones accused of violating the law.

Compare Caldwell, 232 Ga. App. at 894 (rejecting claim based on alleged failure to

prevent hazing); Teston v. Collins, 217 Ga. App. 829, 830 (1) (459 SE2d 452) (1995)

(rejecting claim based on alleged failure to enforce loitering statute). OCGA § 16-11-

127.1 does not impose a ministerial duty on school officials to enforce it against third

parties, but it does impose a ministerial duty of personal compliance.

It is another question, however, whether Boatright has sufficiently pled that

Defendants violated that statute in their individual capacities. It is unclear from

Boatwright’s complaint exactly what Defendants are accused of having done – in

their individual capacities – that violated OCGA § 16-11-127.1. Boatwright alleges

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several times that Defendants “allowed” the cannon on school property, but that is not

action criminalized by the statute. The statute prohibits “any person” from

“carry[ing],” “possess[ing],” or “hav[ing] under such person’s control” any “weapon”

“within a school safety zone [or] at a school function....” OCGA § 16-11-127.1(b)(1).

Boatwright does not allege that any Defendant actually carried or possessed the

cannon individually during the incident in question. Under Boatwright’s complaint,

however, it is at least conceivable that Defendants may have had the cannon within

their individual “control.” Given that Boatwright alleges that the school district owns

the cannon, and that Defendants (at least some of whom together manage and control

the school district, see, e.g., GA. CONST. Art. VIII, Sec. V, Para. II) knew of and

encouraged its use at football games, we cannot say in this posture as a matter of law

“that the allegations of the complaint disclose with certainty that [Boatwright] would

not be entitled to relief under any state of provable facts asserted in support.” Austin

v. Clark, 294 Ga. 773, 775 (755 SE2d 796) (2014).

Defendants’ erroneous interpretation of the statute is not a discretionary act

entitling them to an official immunity defense. Because we find the trial court erred

in granting the motion to dismiss on these grounds, we reverse the decision of the

trial court granting Defendants’ motion to dismiss.

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Judgment reversed. Dillard and McFadden, JJ., concur.

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