Lemond Robertson, as Guardian and Next Friend of A.R., a Minor v. Houston, Mississippi Public School District

• Court: Court of Appeals of Mississippi
• Decided: December 14, 2021
• Docket: 2020-CA-00931-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CA-00931-COA

LEMOND ROBERTSON, AS GUARDIAN AND APPELLANT NEXT FRIEND OF A.R., A MINOR

v.

HOUSTON, MISSISSIPPI PUBLIC SCHOOL APPELLEE DISTRICT

DATE OF JUDGMENT: 07/20/2020 TRIAL JUDGE: HON. JOHN KELLY LUTHER COURT FROM WHICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: MARK TYLER JACKSON ATTORNEYS FOR APPELLEE: WALTER WILLIAM DUKES MARA MICHÈLE LESIEUR JOFFE NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 12/14/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE BARNES, C.J., GREENLEE AND SMITH, JJ.

SMITH, J., FOR THE COURT:

¶1. Lemond Robertson, as the guardian and next friend of A.R.,1 a minor, sued the

Houston, Mississippi Public School District (the School District) under the Mississippi Tort

Claims Act (MTCA). Following a hearing on the School District’s motion for summary

judgment, the Chickasaw County Circuit Court found that no genuine issues of material fact

existed to show the School District had “breached its ministerial dut[ies]” or “failed to use

ordinary care and take reasonable steps to minimize foreseeable risks to [A.R.].” The circuit

1 We use initials to protect the privacy of the minors involved in this matter. court therefore granted the school district’s summary judgment motion. Robertson appeals

and argues the circuit court erred because genuine issues of material fact exist. Finding no

error, we affirm.

FACTS

¶2. A.R. attended Houston High School. Around 7 a.m. on May 5, 2017, A.R.’s mother

called the high school and spoke to a school secretary. A.R.’s mother stated she had just

learned from a fellow parent that another student, T.B., had allegedly expressed an intention

to harm A.R. once both girls arrived at school that day. After receiving the phone call from

A.R.’s mother, the secretary immediately passed along the information to Assistant Principal

Robert Winters, who then notified Principal Jason Cook of the alleged threat.

¶3. When A.R.’s school bus arrived at school around 7:15 a.m., she found Cook, Winters,

and Coach Chris Pettit waiting for her as she exited the bus. Pettit escorted A.R. away from

the other students gathered in the commons area and into the gym. When T.B.’s bus arrived

at the high school later that morning, Cook and Winters met T.B. as she exited the bus. The

two administrators escorted T.B. into the high school with the intention of taking her to the

front office to determine whether T.B. had threatened A.R. As the three entered the

commons area, however, T.B. suddenly broke into a run. Winters attempted to restrain T.B.,

but she broke away from his grasp and ran into the gym.

¶4. With Winters and Cook in pursuit, T.B. chased A.R. into the gym’s bleachers. A.R.

stated that as she began to run down the bleacher stairs, she saw Pettit and another teacher,

Carolyn Matthews, standing at the bottom of the stairs. According to A.R., Matthews told

2 her to jump down the last few remaining steps to the gym floor. Pettit testified that he,

however, did not recall Matthews being inside the gym, much less standing beside him, when

the incident occurred, and he never heard any adult in the gym tell A.R. to run into the

bleachers or to jump down from the bleacher stairs to the floor. Matthews testified that she

was inside the school when the incident occurred but was not standing at the bottom of the

bleacher stairs. Matthews also stated that she never instructed A.R. to jump down from the

bleacher’s landing to the gym floor.

¶5. Upon jumping down the last several steps of the bleachers and landing on the gym

floor, A.R. experienced pain in her right knee. Winters, Cook, and Pettit then managed to

detain T.B. until police officers arrived. Following the incident, A.R. sought medical

treatment for her right knee. She later underwent surgery on the knee.

¶6. On September 19, 2018, Robertson, as A.R.’s guardian and next friend, filed a lawsuit

against the School District. Robertson alleged that the School District had acted negligently

under Mississippi Code Annotated section 37-9-69 (Rev. 2019) by failing to (1) “hold [T.B.]

to strict account for disorderly conduct at the school”; (2) “use ordinary care and take

reasonable steps to minimize foreseeable risks to [A.R.]”; and (3) “provide a safe school

environment for [A.R.].” Following discovery, the School District moved for summary

judgment. After a hearing, the circuit court entered a judgment on the School District’s

motion. The circuit court found that the only disputed fact was whether Matthews had told

A.R. to jump down the bleacher stairs to the gym floor. Even assuming that fact to be true,

however, the circuit court concluded that no genuine issues of material fact existed to show

3 that the School District had (1) “breached its ministerial duty . . . to hold [T.B.] to strict

account for disorderly conduct”; (2) “breached its ministerial duty . . . to prevent bullying or

harassing behavior by [T.B.]”; or (3) “failed to use ordinary care and take reasonable steps

to minimize foreseeable risks to [A.R.].” The circuit court therefore granted the School

District’s summary judgment motion. Aggrieved, Robertson appeals.

STANDARD OF REVIEW

¶7. “We review an order granting summary judgment de novo.” Smith v. Baker, 321 So.

3d 575, 581 (¶18) (Miss. Ct. App. 2021). Viewing the evidence in the light most favorable

to the nonmovant, we recognize that “[s]ummary judgment is proper if there is no genuine

issue of material fact[,] and the moving party is entitled to a judgment as a matter of law.”

Wood v. Reynolds, 316 So. 3d 208, 211 (¶15) (Miss. Ct. App. 2021) (quoting Wright v. R.M.

Smith Invs. L.P., 210 So. 3d 555, 557 (¶6) (Miss. Ct. App. 2016)). The movant “bears the

burden of demonstrating that no genuine issue of material fact exists.” Id. at (¶17) (quoting

Bolden v. Murray, 97 So. 3d 710, 714 (¶15) (Miss. Ct. App. 2012)). Where the movant

demonstrates that no genuine issue of material fact exists, the nonmoving party “must rebut

by producing significant probative evidence showing that there are indeed genuine issues for

trial.” Id. (quoting Miller v. Myers, 38 So. 3d 648, 651 (¶13) (Miss. Ct. App. 2010)). A

“genuine” dispute arises when “the evidence is such that a reasonable jury could return a

verdict for the nonmovant.” Id. (quoting Brown Lakeland Props. v. Renasant Bank, 243 So.

3d 784, 790 (¶17) (Miss. Ct. App. 2018)).

DISCUSSION

4 ¶8. Robertson asserts that the School District breached its ministerial duties to A.R. under

section 37-9-69 and that as a direct result of the breach, A.R. suffered harm. According to

Robertson, genuine issues of material fact existed as to whether the School District complied

with its duty under section 37-9-69 to (1) “use[] ordinary care and [take] reasonable steps to

minimize foreseeable risks to [A.R.]”; (2) “exercise[] ‘reasonable efforts’ in supervising the

students involved in [the subject] incident”; and (3) “[hold T.B.] to strict account for

disorderly conduct at the school.” Robertson contends that these disputes of material fact

precluded summary judgment.

¶9. As this Court has previously explained,

The MTCA provides the exclusive civil remedy against a governmental entity for acts or omissions which give rise to a suit. Any tort claim filed against a governmental entity or its employee shall be brought only under the MTCA, and a school district is a governmental entity under the MTCA. Under the MTCA, sovereign immunity is waived for claims for money damages arising out of the torts of governmental entities and their employees, unless they are explicitly exempted from this waiver under Section 11-46-9(1) of the Mississippi Code. Mississippi Code Annotated section 11-46-9(1) [(Rev. 2019)] exempts discretionary but not ministerial duties from immunity. A ministerial duty is a duty that is positively designated by statute, ordinance, or regulation. Section 37-9-69 states that each superintendent, principal[,] and teacher in the public schools of this state shall hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess. The Mississippi Supreme Court has found that [s]ection 37-9-69 . . . imposes upon school districts a ministerial duty to use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment. 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 Pub. Sch. Dist., 264 So. 3d 786, 791 (¶¶12-13) (Miss. Ct. App. 2018)

(citations and internal quotation marks omitted).

5 ¶10. Although the circuit court recognized the School District’s ministerial duty under

section 37-9-69 to hold students to strict accountability for disorderly conduct at school, the

court concluded that no genuine issue of material fact existed to show a breach of this duty.

The circuit court further concluded that no genuine issues of material fact existed to show

that the School District either failed to use ordinary care in its actions or failed to take

reasonable steps to minimize the foreseeable risks to A.R.

¶11. A.R. admitted that prior to her mother’s phone call to the high school on the morning

of May 5, 2017, the school administration had no reason to know about or suspect a potential

threat against her. A.R. stated that she and T.B. had been friends and that T.B. had never

before threatened or attempted to harm her. Upon learning about the potential threat from

another parent after A.R. had departed for school, A.R.’s mother telephoned the school and

spoke to a secretary, who immediately informed the assistant principal, Winters, about the

situation. Winters testified that he then promptly passed along the information to the

principal, Cook. With only about fifteen minutes until A.R.’s bus arrived at the high school,

Cook and Winters formulated a plan to address the still-developing situation. Winters

testified that he and Cook planned to escort A.R. and T.B. to different areas of the school and

to question the two students separately about the alleged threat.

¶12. Along with Pettit, Cook and Winters met A.R. as she exited her school bus. Pettit

then escorted A.R. away from the students gathered in the commons area and to the largely

unoccupied gym. Cook and Winters subsequently met T.B. when her bus arrived at school,

and they attempted to escort her to the front office. Winters testified that in accordance with

6 their safety training, he and Cook did not restrain T.B. as they entered the school. Winters

stated the school personnel had been trained to not restrain a student until a definite threat

to either the student or others had been identified. Because the alleged threat had not yet

been verified, Winters and Cook chose to walk on either side of T.B. but did not restrain her

at that time.

¶13. As the two administrators and T.B. entered the school, T.B. suddenly ran toward the

gym. At that point, Winters attempted—unsuccessfully—to restrain T.B., who entered the

gym and headed toward A.R. When A.R. saw T.B. approach, she moved onto the bleachers.

A.R. acknowledged that she voluntarily went into the bleachers and that no one ever

instructed her to do so. Although A.R. stated that Matthews told her to jump from the

bleacher landing, she agreed that no one forced her to jump down and that she could have

simply continued to descend the last few remaining steps to the gym floor, where she saw

Pettit waiting to intercept T.B. A.R. also acknowledged that she was already descending the

bleacher stairs when she jumped down the last few remaining steps.

¶14. Upon review, we find no error in the circuit court’s grant of summary judgment to the

School District. Even after viewing the evidence in the light most favorable to Robertson,

we can find nothing to show that the School District either failed to provide A.R. with a safe

school environment or failed to use ordinary care and take reasonable steps to minimize

foreseeable risks to A.R. As discussed, a “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., 264 So. 3d at 791 (¶13) (quoting

7 Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch. Inc., 759 So. 2d 1203, 1213 (¶40)

(Miss. 2000)). Here, our review of the record reveals no evidence to demonstrate that the

School District negligently responded to the phone call from A.R.’s mother. Rather, the

undisputed evidence establishes that in the limited time available to them, Cook and Winters

took reasonable steps to address the potential threat to A.R. Because no genuine issue of

material fact exists to show that the School District breached its duty to hold students to strict

accountability for disorderly conduct on campus, we conclude this assignment of error lacks

merit.

CONCLUSION

¶15. Upon review, we find no genuine issue of material fact that would preclude the circuit

court’s grant of summary judgment to the School District. We therefore affirm the circuit

court’s judgment.

¶16. AFFIRMED.

BARNES, C.J., WILSON, P.J., GREENLEE AND LAWRENCE, JJ., CONCUR. CARLTON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS, McDONALD, McCARTY AND EMFINGER, JJ.

CARLTON, P.J., DISSENTING:

¶17. I dissent because I find that there are genuine issues of material fact (1) whether the

School District was negligent in the way in which it handled escorting the two quarreling

girls into the school that resulted in T.B. pursuing A.R. in the school gym and thereby

negligently creating an unsafe environment, and (2) whether Matthews negligently told A.R.

to jump down the last remaining gymnasium steps when A.R. was trying to evade T.B. I

8 would reverse the trial court’s grant of summary judgment in the School District’s favor and

remand this case for further proceedings.

¶18. To review the applicable law, section 11-46-9(1)(b) of the MTCA provides:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim . . . [a]rising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid.

Miss. Code Ann. § 11-46-9(1)(b) (Rev. 2019).

¶19. In this case, the applicable statutory provision is Mississippi Code Annotated section

37-9-69 (Rev. 2019), which provides that it is “the duty of each superintendent, principal and

teacher in the public schools of this state to . . . hold the pupils to strict account for disorderly

conduct at school, on the way to and from school, on the playgrounds, and during recess.”

As the majority acknowledges, “[s]ection 37-9-69 . . . imposes upon school districts a

ministerial duty to ‘use ordinary care and to take reasonable steps to minimize foreseeable

risks to students thereby providing a safe school environment.’” J.E. v. Jackson Pub. Sch.

Dist., 264 So. 3d 786, 791 (¶¶12-13) (Miss. Ct. App. 2018) (quoting Smith ex rel. Smith v.

Leake Cnty. Sch. Dist., 195 So. 3d 771, 776 (¶14) (Miss. 2016)).

¶20. In the instant case, Assistant Principal Winters and Principal Cook admit they were

made aware that a threat had been made by T.B. against A.R. Although several other

teachers were assigned to “duty posts” within the school’s common area to ensure the

students’ safety as they entered the school, including Adam Gentry, Carolyn Matthews, and

Chris Pettit, there is no indication in the record that Gentry or Matthews were made aware

9 of the threat made by T.B. to A.R. or that Pettit was aware of the extent of the threat against

A.R. Additionally, the record reflects that neither Gentry nor Matthews was aware of any

plan to ensure A.R.’s safety, and Pettit said in his deposition that he was “just kind of told

what we were going to try to do, and that was it” with respect to any “plan” to keep T.B.

away from A.R. at school that morning.

¶21. Thus, rather than alerting the other teachers of the threatened harm to A.R., or fully

explaining the circumstances to Pettit, Winters and Cook attempted to implement their plan

to protect A.R. primarily on their own. The plan failed. A.R. was placed in an open gym

(without Pettit, Winters, or Cook remaining as monitors), T.B. was somehow aware that A.R.

was in the gym, and as Winters and Cook accompanied T.B. into school, T.B. darted away

from them in pursuit of A.R. Regarding the circumstances that developed in the gym when

T.B. was pursuing A.R., A.R. said in her deposition that Matthews told her to jump down the

last remaining gym steps, and so she did, as she “had no clue” where T.B. was or what was

going on at that point. Although Matthews said in her deposition that she did not instruct

A.R. to jump, in reviewing a motion for summary judgment, A.R., the nonmovant, “is

entitled to the benefit of all reasonable favorable inferences that may be drawn from the

record.” Irwin-Giles v. Panola County, 253 So. 3d 922, 925 (¶10) (Miss. Ct. App. 2018).

¶22. Viewing the evidence in the light most favorable to the nonmovant, and allowing A.R.

all reasonable, favorable inferences, I find that these circumstances create genuine issues of

material fact as to the reasonableness of the actions of Winters, Cook, and Matthews in

preventing the foreseeable risks of injury to A.R. in this case. For these reasons, I

10 respectfully dissent and would remand this case to allow A.R. to pursue her negligence

claims pursuant to section 37-9-69 against the School District.

WESTBROOKS, McDONALD, McCARTY AND EMFINGER, JJ., JOIN THIS OPINION.