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04/14/95 C. B. v. THOMAS BOBO

April 14, 1995

C. B., ET AL.
v.
THOMAS BOBO, ET AL.



Appeal from Montgomery Circuit Court. (CV-93-607). Joseph D. Phelps, TRIAL JUDGE.

Released for Publication August 25, 1995. The Name of this Case has been Corrected by the Court December 8, 1995. As Corrected December 8, 1995. Second Correction December 20, 1995.

Houston, Maddox, Shores, Kennedy, Ingram, and Butts, JJ., concur.

The opinion of the court was delivered by: Houston

HOUSTON, JUSTICE.

The plaintiffs appeal from a dismissal of their action as to certain defendants. The trial court made the dismissal final pursuant to Rule 54(b), A.R.Civ.P.

The student plaintiffs, by and through their parents and next friends, *fn1 sued defendants William Paul McGee, a physical education teacher at Vaughn Road Elementary School in Montgomery, Alabama; *fn2 Thomas Bobo (then superintendent of the Montgomery County Board of Education), individually and in his official capacity; Mary Bullard (at some times material hereto, principal of Vaughn Road Elementary School), individually and in her official capacity; Dorothy Moore (at some times material hereto, principal of Vaughn Road Elementary School), individually and in her official capacity; and other current and former members of the Montgomery County Board of Education, individually and in their official capacities, *fn3 alleging: (1) that McGee sexually abused each of the student plaintiffs and thereby caused humiliation, embarrassment, severe mental pain and anguish, and severe emotional distress that will continue into the future; (2) that McGee committed an assault and battery on each of the student plaintiffs; (3) that Bobo, Bullard, Moore, and the other Board members negligently or wantonly allowed McGee access to minor children, including the student plaintiffs, and negligently or wantonly supervised and monitored the activities of McGee; (4) that the acts of McGee, Bobo, Bullard, Moore, and the other Board members were carried out while they were acting under color of state law and that their "actions deprived each [student] plaintiff of her constitutional rights and privileges to be free from sexual abuse and molestation," citing 42 U.S.C. 1983; and (5) that Bobo, Bullard, Moore, and the other Board members negligently or wantonly failed to comply with and negligently or wantonly neglected the student plaintiffs' rights as described under the Child Abuse Reporting Act, Ala. Code 1975, § 26-14-1 et seq., thereby causing the student plaintiffs serious mental and emotional damage.

Certain parents of those students, ("the parent plaintiffs") sued also, in the same action, alleging that as a result of the alleged sexual abuse of their children, they had been caused to suffer, and would continue to suffer, emotional distress. All of the defendants, except McGee, moved to dismiss, arguing, among other things, that the complaint failed to state a claim upon which relief could be granted and arguing that the defendants were protected by the doctrine of qualified immunity. They argued that pursuant to that doctrine they can be held liable only for knowingly violating a "clearly established" constitutional right of the plaintiffs, but, they claimed, no such violation was alleged. The trial court granted the motion and dismissed the action as to all defendants except McGee. The plaintiffs appealed.

State Law Claims

The original complaint in this case charged the defendants with negligent or wanton conduct -- more specifically, it alleged that these defendants knew McGee had a propensity for sexual abuse, and that, in light of that knowledge, the defendants' retention and supervision of McGee was negligently and wantonly deficient.

County boards of education are not agencies of the counties, but are local agencies of the state, charged by the legislature with supervising public education within the counties. As such, they execute a state function, not a county function, and therefore, they partake of the state's immunity from lawsuits to the extent that the legislature authorizes. Hutt v. Etowah County Board of Education, 454 So. 2d 973, 974 (Ala. 1984); Hill v. Allen, 495 So. 2d 32 (Ala. 1986); Ala. Code 1975, §§ 16-8-8, -9; Clark v. Jefferson County Board of Education, 410 So. 2d 23 (Ala. 1982); Sims v. Etowah County Board of Education, 337 So. 2d 1310 (Ala. 1976); Enterprise City Board of Education, 348 So. 2d 782 (Ala. 1977).

Actions against employees of boards of education are also generally barred. See Hill v. Allen, supra; Gill v. Sewell, 356 So. 2d 1196 (Ala. 1978); Deal v. Tannehill Furnace & Foundry Commission, 443 So. 2d 1213 (Ala. 1983).

In the Hill case, the defendants were members of a school board, a special education coordinator, a superintendent of the board, and a principal of the school. The complaint alleged that they "knew, or should have known" of physical, mental, and sexual abuse of mentally retarded students. Like the complaint in Hill, the complaint in this case charges the defendants with negligent or wanton conduct. The gist of the charges against the defendants is that they knew of McGee's propensities and had received complaints about his actions, but had taken no action to stop the abuse perpetrated by McGee and to protect these plaintiffs from his acts -- but the complaint does not allege any fraud or bad faith on their part. Cf. Donahoo v. State, 479 So. 2d 1188 (Ala. 1985); Unzicker v. State, 346 So. 2d 931 (Ala. 1977). Whatever that action might have been, it related to the performance of the defendants' statutory duties, which were discretionary functions for which they possessed constitutional immunity. Hill v. Allen, supra.

As to defendants Bobo, Moore, Bullard, and the other Board members, the trial court properly dismissed the plaintiffs' claims alleging negligent or wanton conduct. That dismissal was proper under the doctrine of discretionary immunity.

The plaintiffs also allege that the defendants negligently or wantonly failed to comply with, and neglected the plaintiffs' rights under, the Child Abuse Reporting ...


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