Discovery May Be Required to Determine Whether Duty is Ministerial or Discretionary

For purposes of qualified/official immunity, a plaintiff may have the right to perform at least limited discovery to determine whether a duty is ministerial or discretionary. In Parr v. Cook County School District, A21A0655 (Ga. Ct. App. June 16, 2021), the Georgia Court of Appeals reversed the dismissal of individual defendants based on qualified/official immunity, finding that because it had not been determined whether a policy, written or unwritten, existed which would make the individual defendants’ duties ministerial, the trial court erred in dismissing the individual defendants.

David and Carrie Parr filed suit against Cook County School District and several individual defendants alleging negligence, when their daughter burned herself with hot food in the school cafeteria. All defendants filed a motion to dismiss. The School District noted it was entitled to sovereign immunity for claims of negligence. The individual defendants contended they were entitled to qualified immunity asserting their actions were discretionary rather than ministerial. The trial court noted that there were no allegations that the individual defendants acted with malice and that the supervision of students was a discretionary act.

The Court of Appeals upheld the dismissal of the School District based on sovereign immunity, but remanded the dismissal of the individual employees. Specifically, the Court of Appeals cited the Georgia Supreme Court’s decision in Barrett v. Caldwell, 302 Ga. 845 (2018), wherein the Georgia Supreme Court stated, “[T]here should be no special category of absolute immunity for school employees,” and “[t]o the extent that language used in prior Court of Appeals’[] decisions may suggest that school employees’ supervision of students is always and inalterably discretionary, that conclusion would be overbroad.” Because there was a possibility that the plaintiffs could show that there was a policy, written or unwritten, that existed which would make the actions of the individual defendants ministerial rather than discretionary, the Court of Appeals reversed the dismissal of the individual defendants.