1997 Regular Session
To: Education; Judiciary A
By: Representatives King, Formby, Davis (102nd), Smith (35th), Martinson, Rogers, Wells-Smith
House Bill 313
(As Sent to Governor)
AN ACT TO AMEND SECTION 37-11-57, MISSISSIPPI CODE OF 1972, TO PROVIDE IMMUNITY TO PUBLIC SCHOOLTEACHERS, ASSISTANT TEACHERS, PRINCIPALS AND ASSISTANT PRINCIPALS ADMINISTERING CORPORAL PUNISHMENT OR TAKING REASONABLE ACTION TO MAINTAIN STUDENT DISCIPLINE, AND TO REQUIRE SCHOOL DISTRICTS TO PROVIDE A LEGAL DEFENSE IN SUCH ACTIONS FILED AGAINST THOSE EMPLOYEES; TO AMEND SECTION 11-46-9, MISSISSIPPI CODE OF 1972, TO EXEMPT PUBLIC SCHOOL DISTRICTS FROM LIABILITY FROM CERTAIN CLAIMS ARISING OUT OF THE ADMINISTRATION OF CORPORAL PUNISHMENT OR THE TAKING OF DISCIPLINARY ACTION BY SUCH EMPLOYEES; AND FOR RELATED PURPOSES. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 37-11-57, Mississippi Code of 1972, is amended as follows:
37-11-57. (1) Except in the case of excessive force or cruel and unusual punishment, a teacher, assistant teacher, * * * principal, or an assistant principal acting within the course and scope of his employment * * * shall not be * * * liable for any action carried out in conformity with state or federal law or rules or regulations of the State Board of Education or the local school board * * * regarding the control, discipline, suspension and expulsion of students. The local school board shall provide any necessary legal defense to a teacher, assistant teacher, * * * principal, or assistant principal * * * acting within the course and scope of his employment in any action which may be filed against such school personnel. A school district shall be entitled to reimbursement for legal fees and expenses from its employee if a court finds that the act of the employee was outside the course and scope of his employment, or that the employee was acting with criminal intent. Any action by a school district against its employee and any action by the employee against the school district for necessary legal fees and expenses shall be tried to the court in the same suit brought against the school employee.
(2) Corporal punishment administered in a reasonable manner, or any reasonable action to maintain control and discipline of students taken by a teacher, assistant teacher, principal or assistant principal acting within the scope of his employment or function and in accordance with any state or federal laws or rules or regulations of the State Board of Education or the local school board does not constitute negligence or child abuse. No teacher, assistant teacher, principal or assistant principal so acting shall be held liable in a suit for civil damages alleged to have been suffered by a student as a result of the administration of corporal punishment, or the taking of action to maintain control and discipline of a student, unless the court determines that the teacher, assistant teacher, principal or assistant principal acted in bad faith or with malicious purpose or in a manner exhibiting a wanton and willful disregard of human rights or safety. For the purposes of this subsection, "corporal punishment" means the reasonable use of physical force or physical contact by a teacher, assistant teacher, principal or assistant principal, as may be necessary to maintain discipline, to enforce a school rule, for self-protection or for the protection of other students from disruptive students.
SECTION 2. Section 11-46-9, Mississippi Code of 1972, is amended as follows:
11-46-9. (1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(a) Arising out of a legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;
(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;
(e) Arising out of an injury caused by adopting or failing to adopt a statute, ordinance or regulation;
(f) Which is limited or barred by the provisions of any other law;
(g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;
(h) Arising out of the issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke any privilege, ticket, pass, permit, license, certificate, approval, order or similar authorization where the governmental entity or its employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked unless such issuance, denial, suspension or revocation, or failure or refusal thereof, is of a malicious or arbitrary and capricious nature;
(i) Arising out of the assessment or collection of any tax or fee;
(j) Arising out of the detention of any goods or merchandise by any law enforcement officer, unless such detention is of a malicious or arbitrary and capricious nature;
(k) Arising out of the imposition or establishment of a quarantine, whether such quarantine relates to persons or property;
(l) Of any claimant who is an employee of a governmental entity and whose injury is covered by the Workers' Compensation Law of this state by benefits furnished by the governmental entity by which he is employed;
(m) Of any claimant who at the time the claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution, regardless of whether such claimant is or is not an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution when the claim is filed;
(n) Arising out of any work performed by a person convicted of a crime when the work is performed pursuant to any sentence or order of any court or pursuant to laws of the State of Mississippi authorizing or requiring such work;
(o) Under circumstances where liability has been or is hereafter assumed by the United States, to the extent of such assumption of liability, including but not limited to any claim based on activities of the Mississippi National Guard when such claim is cognizable under the National Guard Tort Claims Act of the United States, 32 USC 715 (32 USCS 715), or when such claim accrues as a result of active federal service or state service at the call of the Governor for quelling riots and civil disturbances;
(p) Arising out of a plan or design for construction or improvements to public property, including but not limited to, public buildings, highways, roads, streets, bridges, levees, dikes, dams, impoundments, drainage channels, diversion channels, harbors, ports, wharfs or docks, where such plan or design has been approved in advance of the construction or improvement by the legislative body or governing authority of a governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval, and where such plan or design is in conformity with engineering or design standards in effect at the time of preparation of the plan or design;
(q) Arising out of an injury caused solely by the effect of weather conditions on the use of streets and highways;
(r) Arising out of the lack of adequate personnel or facilities at a state hospital or state corrections facility if reasonable use of available appropriations has been made to provide such personnel or facilities;
(s) Arising out of loss, damage or destruction of property of a patient or inmate of a state institution;
(t) Arising out of any loss of benefits or compensation due under a program of public assistance or public welfare;
(u) Arising out of or resulting from riots, unlawful assemblies, unlawful public demonstrations, mob violence or civil disturbances;
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care; * * *
(w) Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice; or
(x) Arising out of the administration of corporal punishment or the taking of any action to maintain control and discipline of students, as defined in Section 37-11-57, by a teacher, assistant teacher, principal or assistant principal of a public school district in the state unless the teacher, assistant teacher, principal or assistant principal acted in bad faith or with malicious purpose or in a manner exhibiting a wanton and willful disregard of human rights or safety.
(2) A governmental entity shall also not be liable for any claim where the governmental entity:
(a) Is inactive and dormant;
(b) Receives no revenue;
(c) Has no employees; and
(d) Owns no property.
(3) If a governmental entity exempt from liability by subsection (2) becomes active, receives income, hires employees or acquires any property, such governmental entity shall no longer be exempt from liability as provided in subsection (2) and shall be subject to the provisions of this chapter.
SECTION 3. This act shall take effect and be in force from and after July 1, 1997.