July 17, 2015
Melissa Lewis, as mother and next friend of P.L., a minor
from DeKalb Circuit Court. (CV-13-900364).
Judge. Thompson, P.J., and Pittman and Donaldson, JJ.,
concur. Thomas, J., dissents, with writing. THOMAS, Judge,
On Application for Rehearing
court's opinion of May 22, 2015, is withdrawn, and the
following is substituted therefor.
Lewis, as mother and next friend of P.L., a minor, appeals
from a summary judgment entered by the DeKalb Circuit Court
(" the trial court" ) in favor of Stuart Mitchell.
We reverse and remand.
December 18, 2013, Lewis filed an amended complaint against
Mitchell, a teacher at Plainview School, alleging that
Mitchell had committed assault and battery against her son,
P.L., who was a student at Plainview School, and that
Mitchell had negligently and wantonly injured P.L. On January
21, 2014, Mitchell answered Lewis's amended complaint,
asserting, among other things, that he was entitled to
state-agent immunity for his actions in using corporal
punishment to discipline P.L.
filed a motion for a summary judgment, along with a brief and
evidentiary materials in support thereof. Mitchell argued,
among other things, that he was entitled to state-agent
immunity. See Ex parte Cranman, 792 So.2d 392 (Ala.
2000). Thereafter, Lewis filed a brief, along
with evidentiary materials in support thereof, in opposition
to Mitchell's summary-judgment motion. Subsequently,
Mitchell filed a reply in further support of his
October 2, 2014, the trial court entered a summary judgment
in favor of Mitchell, specifically finding that Mitchell was
entitled to state-agent immunity. On October 21, 2014, Lewis
filed her notice of appeal to the Alabama Supreme Court; that
court transferred the appeal to this
court pursuant to § 12-2-7(6), Ala. Code 1975.
Our standard of review for a summary judgment is as follows:
" 'We review the trial court's grant or denial
of a summary-judgment motion de novo, and we use the same
standard used by the trial court to determine whether the
evidence presented to the trial court presents a genuine
issue of material fact. Bockman v. WCH, L.L.C., 943
So.2d 789 (Ala. 2006). Once the summary-judgment movant shows
there is no genuine issue of material fact, the nonmovant
must then present substantial evidence creating genuine issue
of material fact. Id. " We review the evidence
in a light most favorable to the nonmovant." 943 So.2d
at 795. We review questions of law de novo. Davis v.
Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.
Lloyd Noland Found., Inc. v. HealthSouth Corp., 979
So.2d 784, 793 (Ala. 2007) (quoting Smith v. State Farm
Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala. 2006)).
appeal, Lewis argues that Mitchell exceeded the scope of his
authority in administering corporal punishment to P.L. and,
therefore, that he was not entitled to state-agent immunity.
She specifically argues that there was a genuine issue of
material fact as to whether Mitchell acted in accordance with
the policy set forth by the DeKalb County Board of Education
(" the board" ).
" 'A State agent shall be immune from civil
liability in his or her personal capacity when the conduct
made the basis of the claim against the agent is based upon
" '(5) exercising judgment in the discharge of
duties imposed by statute, rule, or regulation in ....
" 'Notwithstanding anything to the contrary in the
foregoing statement of the rule, a State agent shall not be
immune from civil liability in his or her personal capacity
" '(1) when the Constitution or laws of the United
States, or the Constitution of this State, or laws, rules, or
regulations of this State enacted or promulgated for the
purpose of regulating the activities of a governmental agency
require otherwise; or
" '(2) when the State agent acts willfully,
maliciously, fraudulently, in bad faith, beyond his or her
authority, or under a mistaken interpretation of the
" Ex parte Cranman, 792 So.2d 392, 405 (Ala.
2000) (plurality opinion) (adopted by [the Alabama Supreme]
Court in Ex parte Butts, 775 So.2d 173 (Ala.
Ex parte Monroe Cnty. Bd. of Educ., 48 So.3d 621,
625 (Ala. 2010).
parte Monroe County Board of Education, our supreme court
held that, because a teacher " did not adhere to the
[Monroe County Board of Education's] policy, she exceeded
the scope of her authority, and she was not entitled to a
summary judgment based on State-agent immunity." 48
So.3d at 628. In the present case, Mitchell maintained that
he had used corporal punishment on P.L. because of P.L.'s
failure to complete his homework; Mitchell also maintained
that he had similarly punished three other students. P.L.,
however, testified in his deposition that Mitchell had used
corporal punishment on him because he had failed a test.
Statements from the other three students confirmed P.L.'s
testimony. Charles Warren,
the superintendent of the board, testified that a
teacher's use of corporal punishment on a student for
making a bad grade on a test is a violation of the
board's policies. Ronald Bell, the principal of Plainview
School, as well as Mitchell himself, agreed that corporal
punishment is not authorized for making a bad grade.
note that, although Mitchell maintained that he had used
" moderate" force in accordance with the
board's policy, Lewis introduced a photograph of
P.L.'s injuries that had resulted from the imposition of
the corporal punishment. Bell testified that the board's
policies do not authorize a teacher to use the amount of
force it would take to result in the bruising reflected in
that photograph. Warren and Bell both testified that, if the
bruising reflected in the photograph had been caused by the
child's mother, they would have been obligated to report
the incident to the Department of Human Resources as
suspected child abuse.
Lewis presented evidence indicating that Mitchell had used
corporal punishment in violation of the board's policy,
we conclude that there was a genuine issue of material fact
regarding whether Mitchell " exceeded the scope of [his]
authority, and [that he, therefore,] was not entitled to a
summary judgment based on State-agent immunity." Ex
parte Monroe Cnty. Bd. of Educ., 48 So.3d at 628.
application for rehearing, Mitchell argues that this court
did not consider whether he was entitled to schoolmaster or
statutory immunity. We note that the trial court did not
enter the summary judgment in Mitchell's favor on either
of those bases. However, Mitchell did present arguments on
each of those types of immunity in support of his
summary-judgment motion. " [T]his court will affirm a
trial court's judgment on any valid legal ground
supported by the record." Barrett v. Roman,
[Ms. 2130824, May 8, 2015] 181 So.3d 364, 374, *19
(Ala.Civ.App. 2015). However, we conclude that Mitchell was
not entitled to a summary judgment on the basis of either
schoolmaster or statutory immunity.
regard to statutory immunity, Ala. Code 1975, §
16-28A-1, provides, in pertinent part: " Teachers are
hereby given the authority and responsibility to use
appropriate means of discipline up to and including corporal
punishment as may be prescribed by the local board of
education." In the present case, however, we have
determined that there is an issue of fact regarding whether
Mitchell violated the policy of the board. Therefore,
Mitchell is not entitled to a summary judgment based on
regard to schoolmaster immunity, in Hinson v. Holt,
776 So.2d 804 (Ala.Civ.App. 1998), this court noted:
" 'A schoolmaster is regarded as standing in loco
parentis and has the authority to administer moderate
correction to pupils under his care. To be guilty of an
assault and battery, the teacher must not only inflict on the
child immoderate chastisement, but he must do so with legal
malice or wicked motives or he must inflict some permanent
776 So.2d at 810 (quoting Suits v. Glover, 260 Ala.
449, 450, 71 So.2d 49, 50 (1954)). This court, in Hinson v.
Holt, held that evidence of a violation of a board of
education's policy regarding corporal punishment was
evidence of malice. 776 So.2d at 812. Similarly, in the
present case, evidence indicating that Mitchell had violated
the board's policy would be evidence of malice. Because
we have concluded that there is an issue of fact regarding
whether Mitchell violated the policy of the board, we
likewise conclude that there is an issue of fact regarding
whether there was evidence
of malice. Therefore, Mitchell is not entitled to a summary
judgment in his favor based on schoolmaster immunity.
also argues in his rehearing brief that there was no
violation of a " detailed rule or regulation which does
not require judgment or discretion" and that corporal
punishment may be administered for a minor offense pursuant
to the policy of the board. The definitions of "
offense" include " something that outrages the
moral or physical senses" ; " the act of
displeasing or affronting" ; " the state of being
insulted or morally outraged" ; " a breach of a
moral or social code" ; and " an infraction of
law." Merriam--Webster's Collegiate Dictionary 861
(11th ed. 2003). We conclude, based on the ordinary
definition of " offense," that neither failing a
test nor failing to complete one's homework is an "
offense" warranting the administration of corporal
on the foregoing, we reverse the summary judgment entered by
the trial court and remand this cause for further proceedings
consistent with this opinion.
GRANTED; OPINION OF MAY 22, 2015, WITHDRAWN; OPINION
SUBSTITUTED; REVERSED AND REMANDED.
P.J., and Pittman and Donaldson, JJ., concur.
J., dissents, with writing.
respectfully disagree with the main opinion's
characterization that the testimony of Superintendent Charles
Warren, Principal Ronald Bell, and Stuart Mitchell amounted
to admissions that Mitchell had failed to follow the DeKalb
County Board of Education's Code of Student Conduct and
Student Handbook (" the Board policy" ). The Board
policy defines " corporal punishment" as "
moderate use of physical force or physical contact by a
principal or designee as may be necessary to maintain
discipline or enforce school rules. Witness must be
present." The Board policy also provides that corporal
punishment may be administered for " any violation which
the school officials may deem reasonable to fall within this
category after consideration or extenuating
circumstances." The undisputed testimony was that
Mitchell delivered one swat with a paddle and that a witness
was present. Moreover, I agree with the DeKalb Circuit Court
(" the trial court" ) that, even assuming that
Mitchell paddled P.L. and the other students for failing a
test, Mitchell was " 'exercising judgment in the
discharge of duties imposed by statute, rule, or regulation
in ... educating students.'" See Ex parte
Butts, 775 So.2d 173, 178 (Ala. 2000) (quoting Ex
parte Cranman, 792 So.2d 392, 405 (Ala. 2000)).
agree with the trial court that the evidence presented
demonstrated that " [t]he child was not traumatized or
injured." Mitchell testified in his deposition that he
was not angry with P.L. and that he did not apply more than
moderate force when he paddled P.L. Jonathan Phillips, the
teacher who served as a witness, testified in his deposition
that, when he observed Mitchell paddle P.L., Mitchell did not
use more than moderate force and that P.L. did not appear
upset or to be in pain after he was paddled. P.L. testified
in his deposition that his buttocks had hurt " [t]he
rest of the period, a little bit on the bus ride home."
He also testified that he had participated in football
practice later that afternoon. Furthermore, P.L. testified
that he had continued to go to Mitchell's classroom with
his friends during their break to discuss topics such as
hunting and fishing and also that Mitchell had assisted him
with a school assignment from another teacher.
reasons set forth above, I would affirm the summary judgment
entered in Mitchell's favor based upon state-agent
Cranman was a plurality opinion. The test
for state-agent immunity set out in Cranman was adopted by a
majority of our supreme court in Ex parte Butts, 775
So.2d 173 (Ala. 2000).
The record indicates that school was
dismissed shortly after Mitchell paddled P.L.