*1 778) (231 (1976). SE2d entry of further find- and remand I concur in the reversal litiga- expenses ings appellee’s recover the as entitlement to expenses appellee’s to recover the entitlement tion. The issue of litigation readdresses after should be redetermined legal principles. liability pursuant appellant’s to correct issue July 28, 1989.
Decided Joseph Levy, Ladson, A. Mulherin Bouhan, M. Williams & Brice Ashmore, III, Sanders, & Daniel S. Rein- Troutman, Lockerman appellant. Stephen Riddell, Withrow, Jr., hardt, N. W. William Stephen Wray Kane, Eckl, Farnham, R. Drew, &Eckl W. appellee. et al. McQUEEN al. v.
A89A0310.CREWS et Judge. Birdsong, boy spanking eight-year-old be- of an This case involves school bring to school. his or failed to cause he to do homework failed principal, Summary judgment granted defendant school to the was McQueen.
According appellant Crews, of what occurred the two versions appellant, principal’s day significantly. Appellant The differ officethat fidgity urges did brief, not “[t]he as minor was fact that Appellee’s position and at one in front of the desk want to himself point cooperative throughout. placed Appellee’s un- knees but continued across part cooperation on the Due to the lack of Appellant, Appellee again minor stand front had the minor edge minor When the on the desk. of the desk with his hands Appellee area, his would not hands from buttocks remove his administering positioned and after himself described above Appellant experiencing, pain lick, the minor first due to the ‘jerked’ cry Appellee began dropped The then to his knees. back) (which right up an almost into was behind his child his arm position, realizing standing broken, let the arm and then Appellee drop . . . Due to the actions of child back to the floor. up- spiral Appellant ., . . a severe fracture the minor suffered per right arm.” immunity. sovereign appellee The The contends he entitled immunity, governmental general principles applying court,
trial found the “ ‘ the officer’s “within the actions were ’ ” corruption.” authority, malice, Hen- wilfulness, without nessy 878). Webb, v. Held: judges appellate shrug judi- 1. We as of this court cannot off our jury’s any cial robes sit in the box to decide in this The fact case. parent has asserted a cause of action because the child’s arm was bro- corporal punishment. ken while the child was proponent staunchest cannot as a matter of *2 disputes judicial finding law resolve all factual in favor of a of immu- nizing “good doing damage faith,” without fatal to his or her own approach nothing right cause. That ministrators to does to advance the of school ad-
employ corporal punishment in this state. right question of school administrators is in fact not in leaving jury put question. state, and this case to the does not init championing right punish- physical But a blind of that to administer point removing jury statutory ment, to the of from the the ultimate question good highly disputed of case, faith a is more liable than anything destroy statutory it. It will water down the restrictions on corporal punishment nothing except judgment the of the adminis- dangers proportionately trator and increase the of abuse and inevita- bly give objectors power the more to intervene. This is what the legislature intended. significant There are issues of fact in this the first question actually of office, what occurred and whose questions version is correct. Then there are the vital whether corporal punishment discretion, exercise sound was “in of good faith” and whether the was “excessive or so, severe.” OCGA If 20-2-731. the administrator is immune liability express from civil or criminal 2-732. But before this issue is under the terms of OCGA 20- question
determined, of what actu- ally happened only jury is one can decide.
The court below was not authorized to determine which version appeal summary credible, was more as it seems to have done. On of a judgment ruling, there can no favor of a trial express implied finding court’s of fact. The trial court’s sole func- summary judgment tion on a motion for is to determine genuine there is a issue is not fact, material it its function to de- jury’s right are, termine what the facts for that is the role. and undisputed, anything If certain facts are there is not parties, respondent, “found”; and if one of the even the has contra- testimony adjudge against himself, dicted party, and its determination that such contradiction been rea- has not sonably explained is an issue law for the trial court to decide (Prophecy (343 (359 Corp. Rossignol, Inc., v. Charles 256 Ga. 30-31 680); Tuxedo, Thacker v. Matthews 231)). legal The trial court’s determination on the issue whether reasonably explained, peculiar a contradiction has been carries right party weight appeal, make “deliber- has no on because contradictory so, statements, the determination ate,” if he does reasonably explained for the is not one is whether such contradiction Corp., supra. Prophecy jury in the first instance. singular except reasonable However, determination of as to that presump- explanation party himself, no one has contradicted finding judge’s or conclusion attaches to trial tion fact correctness ambiguities resolving evidence, or conflicts material supposed to do His role is not to determine is not it. this case dissent in issue of fact. The but has remarked that ment, determine if there an summary judg- on “[s]ince this matter was decided thereby ambiguities construed must be created all evidence and respondent favorably against movant,” and towards the most implies difficulty cases; is that of this statement cites two but the ap- judgment, summary [on was decided on that “since this matter thereby peal] ambiguities be construed must created all evidence respondent favorably against the movant.” most towards summary judgment. At the trial This has never been the law ambiguities level, inferences the construction of all evidence and merely procedural thereby respondent, created mechanism which fact, favor any preserves issue court *3 trial Bagley Tire v. Firestone if is if made. there one or one can be 179). (123 App. Co., rule of 736, “The cardinal &c. the 104 Ga. 739 SE2d summary judgment procedure re- the can neither is court only issues, but can look to ascertain solve the nor the reconcile facts (Emphasis supplied.) [Cits.]” Id. there is an issue. if exists, is there Even to the determination that an issue of fact as 740), (see Bagley, p. presumption no that the trial court is correct by presumption suggested dis- in the the two cases cited no such sent, was Hills, 346); App. 116, 119 North v. 160 Ga. Toco Seckinger Realty Co., 778, Blount v. 683). varying materially versions as to Thus, here, where as there are summary judg- on motion for
what occurred in a ment is not the trial court anybody empowered in favor of construe versions to these only may any there is determine as do so one. material to resolve issue but so if any attempted Therefore, to resolve the trial court has by construing in certair the a evidence issue of either power otherwise, with the its the trial court has exceeded fashion or grant empowered summary judgment. tc not Since it was or denial of appeal place, that ii arise on in first can do so was correct no certainly “al resolution; do not construe we such thereby” ambiguities it. to sustain evidence and created summary judgmen say To would be to convert otherwise procedure preserve designed to one whicl fact issues of from one disposes summary them. This act not destroy judg- would procedure, well, ment jury system but to eviscerate the entire issues, construing evidence to resolve become would Further, the factfinder. if on appeal we then construed all evidence and ambiguities uphold thereby inferences created trial determination, court’s we would sitting finding review fact, and not in issue review of there is finding an of fact.
The trial applies general court’s order sovereign rules of immu- nity, suggests that neither version of the events shows absence of good beyond faith because seems clear the appellee issue that did wilfulness, malice, not act with corruption. in Division 2 As shown opinion, “wilfulness, this corrup- determination as to malice or case; tion” question does not control this rather of good one faith. The varying ques- versions of parties make this the ultimate tion for jury. faith,
Even if good specific pro- act in did under (see visions 2), of Title which there controls case Division still question the factual “is . . . corporal punishment (OCGA unduly 20-2-732; excessive severe” and see OCGA 20-2- § § (1) (2)). plaintiff plain here raised factual issues whether intended appropriate boy’s this case was misdeed, been; whatever that misdeed is found have for if the not, may severe,” finds it was then it have been “excessive or even though it good was administered in faith.
2. The legislature express immunity made provision has at general cases OCGA 20-2-732. While rules § (see, of sovereign immunity e.g., Hennessy) inap- strictly plicable corporal punishment cases, immunity to all express pro- always visions at OCGA will 20-2-732 control. § part, For the provisions most 20-2-732 com- OCGA are patible However, with general immunity. we sovereign rules of question strongly application general the summary principle of a determination, “scope authority” view the “sound discretion” authorizing corporal pun- vested administrator the statute (1) (5) through ishment certain OCGA circumstances. 20-2-731 *4 carefully the defined the which are of au- situations within the thority corporal to administer punishment, but that statute also places punishment the determination of the these situations of within “the principal exercise sound discretion.” [the teacher’s] of (Emphasis supplied.)
Thus, though “scope even punishment certain was within the (OCGA (l)-(5)), authority” may 20-2-731 it still have been outside sound discretion. It does not necessarily the administrator’s follow authorized, that because technically it was it was discretion; sound nor the fit within sub- conclusion situation question of (l)-(5) The discretion. paragraphs in sound was made except many subject that variables to so case these “discretion” as generally determined be circumstances, cannot egregious law. matter of sovereign principles general apply the decline therefore We spe- creating expressly legislature, in immunity the to this subjecting discre- “sound them but situations cific “authorized” tion,” immunity general Application controlling rule. distinct made a has may con- unnecessary, to results well lead but is not 20. in Title trary authorizations the mandates App. in we Boutwell, 176 Ga. v. In Maddox guide the were outside case in that if the that dicated lines of gen (employing (1) particular, it would § 20-2-731 OCGA authority. scope of immunity) necessarily the outside be eral rules proposition opposite is not: situation Obviously true, the but this is (5), (1) through § 20-2-731 may limits the factual within discre “sound administrator’s may exercise outside the still tion.” lines of both admixture the that in some cases We conclude results, coincidentally, but may, perhaps consistent
analysis lead genuine issue, underlying are in facts Since the so in this case. they author- hardly fit within determine could trial court (5) (1) 20-2-731,and through paragraphs izing OCGA latter determination In discretion.” “sound facts law, defy even a matter as resolution as to be so subtle undisputed. are directly disputed case, the de- are Inasmuch facts jury. one for law stated under the of these termination McMurray, Carley, J., Deen, Judgment J., P. C. reversed. Sognier, specially. J., Banke, P. Beasley, J., concurs J., concur. P. Pope Benham, JJ., dissent. specially. concurring Judge,
Beasley, following. judgment on the based in the I concur Court before has been this case involved incident The Crews, 184 Ga. Pennsylvania Co. v. Ins. Mut. Millers In before. up- parent 657) (1987),summary judgment was for the brought board’s declaratory school judgment action held liability policy holding exclu- was The basis insurer. apply did not bodily injury expected insured intended sion for premise that, coverage. consequently factual there was and as when paddled . . . injured while stated, child] “[The the Court paddle.” ‘lick’ of a second to avoid he twisted what from appeared resulted arm the broken Thus it do, inflict authorized from what and not child did *5 paddling. Paddling paddling intended, was of course and acceptable of course injury, factually inflicts legally, albeit minimal but paddling injury complained was not the of. The broken arm occurred get when principal, child acted to out of the hold whose arm-holding activity carried with it no intention to harm. brought by parent Now we move to the tort action in- his capacities. dividual comparing and next friend Without the records in appears present cases, the two that the conflicting record contains regard evidence says principal to how the arm became broken.1 The dropped the child holding twisted and while he was the child’s prevent protecting wrist to him from buttocks, his which sudden twisting dropping says resulted in the break. The child that after dropped the first up principal swat “jerked” to his knees and the him breaking off the arm, floor it at that time. provides principal The law that the is not liable a “civil action upon administering corporal punishment based where the cor- poral punishment good is administered in faith and is not excessive or unduly severe.” OCGA 20-2-732.Plaintiff does contend that the paddling punishment unduly itself was excessive or severe. One swat of a two-swat repeated had been homework deficien- principal cies. The showed as a matter law good faith, administered in is, there awas valid reason for it procedures and the established were fol- contrary lowed; no evidence was offered. principal Before jury liable, could be would have to first find principal that the arm jerked up broke because the him after he dropped delay jerked avoid or the second swat. If he him more roughly necessary, jerking yanking than snatching and the up or way part punishment, done such a as to be of the could find that it contemplation was “excessive or severe” in the hearing seeing the statute. conflicting Without witnesses, lack severity of excessiveness or undue cannot be established as a matter given law in the evidence. genuine dispute There awas over what action whom resulted break, which was a material fact as to the related issue of the liability. civil He summary was therefore not entitled judgment. (c). OCGA 9-11-56 Judge, dissenting.
Benham, reading majority opinion Since a fair of the leaves with me some undispelled qualms, necessary I find it to dissent. The issue here is 1 Deposition of appellate the child was taken declaratory after the judg decision in the Although ment action. deposition there is some principal a second indication of the time, taken at about the same deposition his earlier 1985 is in the record. punish- corporal administering principal in of the whether the actions authority wilfulness, scope and without his ment were deciding majority, trial corruption. reverse the The malice, or principal, summary judgment rules that grant to the court’s of fact remain matters. to these for determination opinion as to majority remain issues of fact decides that The 1. of his author- were whether the actions injury student ity. occurred. how the There two versions the are up jerked injury from the he was when occurred contends that *6 princi- trying second lick. to avoid he had fallen floor where making a injury pal twisting was while the student occurred contends that deciding the sum- avoiding In on second lick. in motion required evidence mary judgment to view all was issue, court the trial respondent favorably thereby ambiguities towards created App. 116, Hills, Inc., against 160 Ga. v. North Toco movant. Realty 346) Seckinger (286 (1981); Co., Ga. 167 v. Blount SE2d 119 (1983). (307 App. 778, SE2d 779 support of fact re- material its determination that In of opinion Boutwell, majority v. Maddox issue, cites main as to this 599) (1985). the issue In that 176 Ga. excessive. punishment in faith and bad whether the guidelines punishment the established so, “If outside would authority, principal’s] scope ren- therefore, [the and, dering outside the by protected principal] both not, would be [the If him liable. immunity.” types 492. Id. at by provided Georgia “Corporal punishment for schools is in provided seq. that school 20-2-731, is §In et OCGA 20:2-730 punishment corporal may the administration boards the authorize subject authority policies adoption is such and that of written ‘(t)he corporal punishment limitations, first of which is certain ” unduly Id. at 492. severe.’ or shall not be excessive approach conformity Hen- approach taken This is “ 878) (1980): ‘[SJchool nessy 329, Webb, v. charge public agencies schools boards, enjoy or authorities and other personal injuries liability immunity or death sus- from tort therewith, persons pupils ab- in connection or other tained contrary, legislative at least to the sence of a enactment “ that negligence . ‘[I]t . . well established . . . is was involved.’ empowered to ex- with discretion “where an officer is invested ercise his brought him, judgment is sometimes before matters usually given acting quasi-judicial he is officer, so and when called a injured liability persons immunity as a result who from complained provided done of are decision; the acts an erroneous authority, scope wilfulness, without the officer’s ’ ” corruption.” malice, or question adopted policy There is no that the school a written administering punishment administering punishment. appellee policy and that followed Therefore, the will not be con- having scope authority sidered as acted outside the of his unless there administering punishment is evidence that his actions were wilful Hence, wanton. authority no decision can be made on the issue until we consider the wilful or wanton issue.
2. majority opinion As to the wilful issue, or wanton decides punishment that a material issue of fact remains as to unduly legislative severe or excessive.A review of the enactments concerning corporal punishment abundantly makes it clear that the legislature chose to vest considerable discretion in the school adminis- realizing people trators, considerably corporal differ as to when punishment justified and the extent to which should be necessarily administered. It given if follows that considerable discretion is officials, to school then considerable allowances must be made protect to true especially them in the exercise of that discretion. This is judice,
where, appear anger as in the case sub it does not malice is involved.
Realizing protect the need to school officials from unwarranted protect pun- accusations and the need to students from severe ishment, some have states created a rebuttable in favor Battery, reasonableness. 6 AmJur2d Assault & 46. Since our legislature exempted liability except school administrators from *7 punishment (OCGA where the excessive or severe 20-2- Hennessy, 732; appears supra), practi- see also Webb v. that for all purposes, legislature provide cal intended to a favor of reasonableness. majority appears rely mainly decision on fact that the
student’s arm was broken rather than on the circumstances which led injury. kept to the from the punishment. injury It must be in mind that the occurred not punishment attempt itself, but from the student’s to avoid dispute punishment There no that the itself was not disproportionate gravity injury of the offense and oc- engaged curred while the teacher was in moderate restraint or correc- summary judgment, appellants Therefore, tion. to avoid must show way that the method or manner of in some excessive. necessarily simply Punishment is not excessive it results because injury. an showing Where there excessiveness, is no we must look to gives whether the instrument used or manner in it is which used implication nothing rise to an of malice. There is about this case to indicate such. malice, wantonness, wilfulness, There no eminently granting summary judgment trial court was correct in the school officials. Judge Judge Presiding Banke,
I to state am authorized Judge Pope join Sognier in this dissent. July 14, 1989 Decided July 31, 1989
Rehearing denied Magda, ap- Magda Palmatary, Krider, B. Michael & Hutto, pellants. Bryant Jr., Bower, Hopkins Adams, H. III, John B. Alva J. appellees.
Terry Sumner, Dillard, B. A. Robert al. v. ROSS et WEAVER A89A0430. (386 SE2d Judge. Birdsong, Appellees, estate and of the decedent’s the administratrix wrongful surviving against death action decedent, filed a children of the authority. hospital appellant doctor, and doctor, another appellees and a settlement defendants reached
The latter two were against proceeded to trial The case the lawsuit. dismissed from $722,847.13, appellant Weaver, a verdict returned appellees re- $50,000, the amount reduced which against two defendants. the other claims in settlement of their ceived appeal followed. This negli- appellant alleged complaint, appellees 1. In their Rocky malady diagnose gent failing their mother’s and treat spotted death. her Much fever, which caused the disease Mountain kept appellant testimony the dece- was elicited about records office visit. dent’s appellees’ appellant, During counsel his cross-examination patient’s appellant had Ap- that she chart on a if ever written had asked patient performed something had not. when, in she pellant’s response then She was was, I remember.” “Not can decedent, patient’s to refresh chart, that of not a former handed physi- history if had written was asked she her recollection performed patient had that she had never when she in chart for a cal examination replied history physical She examination. *8 performed the asked, she had and, affirmed when done physical patient history patient whose exam and conducted appellees’ given bar, appellees’ coun- In a side her. had chart sel counsel appellant, expressed medical record to review desire appellees were appellant’s trial court asserted counsel Appellant completely a motion bringing made case. in a different