Tort Law

R. Max Humphreys, Esquire

When raising the defense of official immunity, defendant must plead and prove that defendant had complied with applicable rules, policies and guidelines and that the rules, policies or guidelines afforded defendant discretion in their implementation or that defendant had been granted the discretion to disregard the rules, policies and guidelines. Nguyen, et al. v. Grain Valley R-5 School District, No. 73182 (Mo. App. W.D., December 13, 2011), Ellis, J.

Plaintiff’s eleven year old daughter fell at school striking her head. She was turned over to the school nurse’s aide, who shined a light in her eyes to make sure the pupils got larger, then contacted the parents to take her home and wrote a note to them indicating they should check on her at midnight to make sure she was normal. The parents checked on her at midnight and she seemed fine. They checked on her at 10:30 a.m. the next day and she was not breathing. She was pronounced dead at 10:46 a.m. An autopsy reveals she had died as a result of a blunt head trauma.

Plaintiffs’ sued the School District, some teachers, and the nurse and the nurse’s aide, claiming that they all failed to follow policies, regulations and statutes in allowing the activity during which the injury occurred and in treating the student after the injury. Individual Defendants filed a motion to dismiss based on official immunity and the court held a hearing and heard evidence, thus, treating the motion as a motion for summary judgment. At the evidentiary hearing, the school nurses’ defense was that she was provided with several different guides and checklists to use in the medical treatment of students and these guides were their bibles or manuals. They stated that they were also provided with an Emergency Procedure Book and checklist, which provided when they should call an ambulance or a parent. The court found that this evidence did not establish as an undisputed fact that the nurse’s aide had complete discretion in her treatment of students. The court of appeals in reversing the trial court’s grant of immunity, they must establish, through undisputed facts, that they were entitled to that defense as a matter of law. Defendants must establish that they acted in an area where they had discretion.

The allegation against the teachers is that they failed properly supervise the children, failed to properly examine injury and failed to notify emergency medical services. So, the Plaintiffs’ pleadings did not clearly show that the acts complained of were discretionary. The evidence presented at the evidentiary hearing did not establish that teachers were afforded discretion in treating head injuries sustained by students. Thus, the court erred in granting the Motion for Summary Judgment to them also.

As to the administrative personnel sued, the claims against them related to hiring policies, training of employees, and general supervision of employees. No allegations were made indicating any direct involvement those individuals had in the activities in the physical education class or the treatment of Sabrina. That type of supervisory conduct and policy making is discretionary and covered by official immunity. So the trial court was correct in granting summary judgment to those individuals.

Defendant contractors acknowledged that a one and three quarter inch uneven lane height difference it was creating was a dangerous condition and that signs warning that condition should have been used. Harlan v. APAC-Missouri, Inc., et al., No. 73637 (Mo. App. W.D., December 13, 2011), Ellis, J.

APAC was a contractor working on a highway under contract with the Missouri Highway & Transportation Commission. The resurfacing created a one and three quarter inch difference in the height of lane and Plaintiff operating a motorcycle was injured in an accident, which Plaintiff’s claim was cause by the difference in elevation of the lanes. Defendant APAC claimed that they had conducted the project, including the warning signs consistent with the guidelines of the contract put forth by MHTC. The general Superintendent for APAC testified that uneven lane situations can be dangerous and that APAC knew there were going to be uneven lanes on the project. He was familiar with the Federal standards and MHTC standards and that APAC could request MHTC to authorize additional safety signs on a project. At the trial, Plaintiff received a verdict, which was appealed by APAC. The court of appeals affirmed the verdict on the basis that APAC knew of the dangerous condition and had the authority to request additional warnings signs, but did not do so.