Senate Bill 2771

AN ACT TO AMEND SECTION 37-11-57, MISSISSIPPI CODE OF 1972, TO CLARIFY THE IMMUNITY OF LICENSED SCHOOL PERSONNEL FROM LIABILITY FOR CARRYING OUT RESPONSIBILITIES WITHIN THE COURSE AND SCOPE OF THEIR EMPLOYMENT, AND TO PROVIDE FOR THE ASSESSMENT OF ATTORNEY'S FEES AND COSTS AGAINST AN ATTORNEY OR PARTY FOR BRINGING A MERITLESS ACTION, CLAIM, DEFENSE OR OTHER PROCEEDING AGAINST A TEACHER OR OTHER SUCH LICENSED SCHOOL PERSONNEL; 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.

(3) Except in the case of an intentional tort, 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, rules or regulations of the State Board of Education, or the local school board regarding his employment. 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. Except as otherwise provided in this section, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney's fees and costs against any party or attorney of the court, upon the motion of any party or on its own motion, if the court finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure. No attorney's fees or costs shall be assessed if a voluntary dismissal is filed as to any action, claim or defense within a reasonable time after the attorney or party filing the action, claim or defense knows or reasonably should have known that it would not prevail on the action, claim or defense. When a court determines reasonable attorney's fees or costs should be assessed, it shall assess the payment against the offending attorneys or parties, or both, and in its discretion may allocate the payment among them, as it determines most just, and may assess the full amount or any portion to any offending attorney or party. No party, except an attorney licensed to practice law in this state, who is appearing without an attorney shall be assessed attorney's fees unless the court finds that the party clearly knew or reasonably should have known that such party's action, claim or defense or any part of it was without substantial justification. The following words and phrases as used in this subsection (3) have the meaning ascribed to them herein, unless the context clearly requires otherwise:

(a) "Without substantial justification," when used with reference to any action, claim, defense or appeal, including without limitation any motion, means that it is frivolous, groundless in fact or in law, or vexatious, as determined by the court.

(b) "Person" means any individual, corporation, company, association, firm, partnership, society, joint stock company or any other entity, including any governmental entity or unincorporated association or persons.

(c) "Action" means a civil action that contains one or more claims for relief, defense or an appeal of such civil action. For the purposes of this subsection (3), an "action" also means any separate count, claim, defense or request for relief contained in any such civil action.

This subsection (3) shall apply to any suit, claim, defense or appeal filed or perfected subsequent to July 1, 2002, and shall also apply to any suit, claim, defense or appeal which has been filed or perfected prior to July 1, 2002, and which is not dismissed within one hundred eighty (180) days after July 1, 2002.

SECTION 2. This act shall take effect and be in force from and after July 1, 2002.