If your child has been hurt while at school and you are considering bringing a claim, you need to know what you are up against.

First and foremost, you need to know that the doctrine of Sovereign Immunity (or “Government Immunity”) protects public (but not private) schools from most lawsuits. Sovereign Immunity is a shield that stops cold most injury claims against school districts and public school teachers/coaches, etc . . . Sovereign Immunity means that you can not sue the government without it’s consent. And as you might imagine, the government is not often inclined to give that consent.

In the State of Georgia the rule is that you can not sue a governmental employee (which includes school teachers, coaches, and school administrators) unless the governmental entity that employs them has waived Sovereign Immunity.

There are narrow exceptions to the Georgia rule. For instance, you generally can bring a claim if your child is injured in an automobile accident caused by a County employee. There is a statute, O.C.G.A. § 33-24-51, which allows a waiver of sovereign immunity when a county purchases liability insurance for the negligent use or operation of a government owned motor vehicle. So if your child has been hurt in that manner, you are protected.

But outside the motor vehicle accident injury context, the law is quite unfavorable to injured children and their families. Let me give you some examples drawn from legal cases that have been decided in Georgia Courts.

Example # 1

In a case decided in 2003, a ten year old girl was killed in an accident at her elementary school. Her first grade teacher was directing her class in the making of posters. The teacher sent the girl to get some paper from a large roll in the school storage garage.

The ten year old went to the garage and tried to get the paper off of a large, heavy, eight-foot high roll of paper which was standing upright in the storage garage. In the process, the roll fell onto her and killed her.

The Court determined that the school teacher had official immunity and upheld dismissal of the wrongful death claim.

Example # 2

In a case decided in 2010, an eight grade boy suffered an eye injury during a science experiment conducted under the supervision of his teacher. The school had a written eye protection policy that specifically told teachers to require students to wear eye protection at all times when participating in or observing any such experiments. The teacher did not enforce the policy.

The experiment in question consisted of “launching” a two-liter plastic soda bottle by means of water and air pressure. The soda bottle, containing water, lifted off the launch pad when air was pumped into the bottle and the U-shaped pin holding the bottle in place was removed. The eighth grade boy was struck in the eye by the metal pin when another student removed the pin by pulling on the string attached to the pin in order to launch the bottle.

Despite the fact that the teacher failed to follow the written eye protection policy, the Court determined that she was entitled to official immunity and shielded the teacher from legal liability.

Example # 3

In a case decided in 2007, a 14 year old freshman girl was repeatedly sexually molested by an employee of a high school in Cobb County, Georgia. The employee had previously sexually molested a different girl while employed by the same high school. School officials had investigated the previous molestation but did not report the acts to child welfare authorities.

Instead school officials had delivered a memo to the employee which stated that his employment would continue on a probationary basis and laying out certain future conditions for his continued employment.

Obviously the memo failed to prevent the employee from acting out again and for about 9 months the employee actively molested the 14 year old girl.

The girl’s parents brought suit against the school officials who had covered up the molestation and permitted the molestor to continue to have access to children.

Yet the Court determined that the school officials had official immunity and could not be sued.

I could give you many more examples of cases where school teachers and officials were negligent and caused harm to children but faced absolutely no legal accountability.

In one recent nationwide study of school liability for injury to school children, the author concluded that in almost two thirds of the cases studied, the school district won conclusively. The injured student won conclusively in less than one tenth of the cases. Government and official immunity was the most prominent factor (46 percent) in district-favorable outcomes.

Here is a graph showing the distribution of outcomes (from the nationwide study) –

Why? Why have so many Courts decided against the rights of school children, and in favor of protecting state officials?

To adequately answer that question, I have to get a little technical. So please bear with a little legalese for a moment. I’ll try and translate a bit further on in the post.

If you read the Georgia cases on school injury liability you’ll find the rationale behind the decisions are about as clear as mud.  You’ll find that under Georgia law, a suit against a public officer acting in his or her official capacity will be barred by official immunity unless the public officer (1) negligently performed a ministerial duty, or (2) acted with actual malice or an actual intent to cause injury while performing a discretionary duty. In other words, public officials are immune from damages that result from their performance of discretionary functions, unless those functions were undertaken with malice or intent to cause injury.

So essentially Georgia Courts have said that public officials’ acts (or failure to act) fall into one of two categories, something called “ministerial” and another category called “discretionary.”

What’s the difference between the two? To be honest, I don’t always know. The cases don’t always agree with one another on how to tell the two apart and the difference between the two is razor thin often times.

The cases define a “ministerial” act as one that is commonly simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.

Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a “ministerial” duty on the part of the official to perform the specified task. Happoldt v. Kutscher, 256 Ga.App. 96 (1), 567 S.E.2d 380 (2002). See also Standard v. Hobbs, 263 Ga.App. 873(1), 589 S.E.2d 634 (2003) (“when ‘a governmental department creates its own policy requiring certain actions under certain situations, then the actors for that department have a ministerial duty to follow the policy.’ ”). In order for the written policy to impose a ministerial duty, the policy must mandate simple, absolute, and definite action and require the execution of a specific task without any exercise of discretion. McDowell v. Smith, 285 Ga. at 593-594, 678 S.E.2d 922.

In the following cases, written policies were ruled to require ministerial acts because the policy clearly set out the factual situation that required the ministerial act and gave the public official no discretion. (when a phone call or facsimile transmission requests the early release of a child from school, the written policy requires the school employee to follow certain procedures to authorize the child’s release) Meagher v. Quick, 264 Ga.App. 639, 643, 594 S.E.2d 182; (when a police officer responds to a call reporting suspected family violence, the written policy (OCGA § 17-4-20.1(c)) requires the officer to complete a written family violence report) Nelson v. Spalding County, 249 Ga. at 336, 290 S.E.2d 915; (when a traffic sign is in need of placement or replacement, the written policy requires Nelson to do so upon being notified of the need) Wanless v. Tatum, 244 Ga.App. 882, 884, 536 S.E.2d 308 (2000); (when a citizen lodges a complaint, the written policy requires the employee receiving the complaint to make a written record of it and for the complaint to be investigated) Lincoln County v. Edmond, 231 Ga.App. 871(2), 501 S.E.2d 38 (1998).

As you can see, only one of these cases has to do with a school.

A “discretionary” act, on the other hand, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

For examples of cases in which Georgia Courts have determined that the school official’s task of supervising students was a discretionary action, see Payne v. Twiggs County School Dist., 232 Ga.App. 175, 177(2), 501 S.E.2d 550 (1998) (alleged failure to enforce policy prohibiting students from carrying weapons on school property); Perkins v. Morgan County School Dist., 222 Ga.App. 831, 835(2), 476 S.E.2d 592 (1996) (alleged failure to enforce policy governing early dismissal of students); and Wright v. Ashe, 220 Ga.App. 91, 93-94, 469 S.E.2d 268 (1996) (alleged failure to enforce policies prohibiting students from leaving school and governing students’ use of cars on campus and class attendance).

If an act is deemed “ministerial” a school official can be held liable for failing to perform that act or negligently performing it.

If an act is deemed to be “discretionary” a school official is immune unless the acts in question were undertaken with actual malice, which requires a deliberate intention to do wrong.

The general duty of teachers to monitor, supervise, and control students has been held by Georgia Courts to be a discretionary action which is protected by the doctrine of official immunity.

So, in theory any time an injured child can show (through counsel) that they were hurt by the negligence of a school official in the course of a “ministerial” act, that child (and their family) can bring a claim and get heard on the merits.

But, in reality, the Georgia Court of Appeals has observed that it’s a rare thing for the Courts to treat an act as “ministerial”. Instead there has been case after case after case where the Courts have categorized negligent acts as “discretionary”. And as soon as the act is considered “discretionary”, the case is all but over for the injured child.

In fact, I think the observation by the Court of Appeals is so remarkable and noteworthy, that I’m going to quote it here (as reported by the Georgia Supreme Court):

“Moreover, the Court of Appeals conducted a thorough review of recent Georgia decisions and found that ‘a de facto absolute immunity for school employees [cits.] has developed gradually across the last decade. Not one recent case exists in which the Georgia courts have found a ministerial duty on the part of a school employee.” Smith v. McDowell, supra at 734, 666 S.E.2d 94.” McDowell v. Smith 285 Ga 592, 678 S.E. 2d 922, 925 (Ga Supreme Court, 2009). (emphasis added)

So, even the Georgia Supreme Court recognizes that odds are slim an injured child is going to be allowed to bring a claim against a school official. What is supposed to be qualified immunity is in fact nearing absolute immunity.

I have a big bone of contention with this state of affairs. Millions of parents entrust their children to government schools. School attendance is compulsory. Children spend the better part of their weekdays in the custody of the government school system. Yet they have few rights to recourse if those watching over them are negligent.

How is that we as a community tolerate this kind of treatment of children’s legal rights? Why do public officials get a “free pass” when it comes to most of their negligent acts? Why are they not accountable when they harm a child? Why should private school teachers be held accountable for negligence that public school teachers get away with? Why should a child attending public school have fewer rights than a child attending private school?

As you can tell, I think we need legal reforms in this area of the law. I see no fairness in shielding public officials and employees from liability when they hurt children. I think they should be held to the same standard as everybody else.

I have spent the better part of this post telling you that it is tough to bring a claim against a public school for a child injury. Is there any hope?

Well, it turns out there is hope, but it is absolutely essential that as early in the claim process as possible you evaluate if your child’s claim falls into one of the exceptions to official immunity.

The determination of whether an action is “discretionary” or “ministerial” is where these cases rise or fall. And the Courts have repeatedly said that the relevant issue is the character of the specific actions complained of, and the determination is to be made on a case-by-case basis. For that reason, you (and your attorney) need to begin as soon as possible to collect evidence in order to (hopefully) demonstrate that the actions (or non-actions) that caused harm to your child were “ministerial” not “discretionary”.

Keep in mind also that if there is a way to prove that the school official acted with malice (specific intent to harm your child – spanking them would be a good example), it doesn’t matter whether the act was “ministerial” or “discretionary” – you have a case.

Keep in mind also that if your child has a disability, this may change the legal analysis. A student with a known disability, for instance, will require closer supervision than one without. Moreover, courts have held that a student’s individualized education plan and unique needs are relevant in determining a reasonable level of supervision.

One more thing – claims against public schools are subject to special “ante-litem” notice requirements. The Courts are very strict in enforcing those requirements. The proper notices must be sent to the proper entities (often more than one) by the proper means. Consult with an attorney about your specific situation, but generally you have only 12 months from the date of injury to properly serve an “ante-litem” notice on county schools and 6 months if your school is a city school. Again, please call a child injury attorney early in the process before your rights and the rights of your child are compromised.

Sources: Understanding Liability In School Cases

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Attorney Pete Pearson practices personal injury law in Atlanta, Georgia and has a special interest in helping families of injured children. He is a father to six and lives with his wife and children in Conyers, Georgia. He can be reached directly at Six-Seven-Eight 358-2564.