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Swindle v. Neshoba County Sch. Dist.

Court of Appeals of Mississippi

September 10, 2013

JIMMY SWINDLE, INDIVIDUALLY, AND AS NATURAL FATHER AND GUARDIAN OF JASON SWINDLE, A MINOR, APPELLANT
v.
NESHOBA COUNTY SCHOOL DISTRICT, APPELLEE

COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/21/2012. TRIAL JUDGE: HON. VERNON R. COTTEN. TRIAL COURT GRANTED SUMMARY JUDGMENT IN FAVOR OF THE NESHOBA COUNTY SCHOOL DISTRICT.

FOR APPELLANT: WAYNE E. FERRELL JR.

FOR APPELLEE: ROY A. SMITH JR., STEVEN JAMES GRIFFIN.

BEFORE GRIFFIS, P.J., ROBERTS AND CARLTON, JJ. LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. MAXWELL J., NOT PARTICIPATING.

OPINION

Page 870

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

CARLTON, J.:

¶1. Jimmy Swindle (Swindle), individually and as natural father and guardian of Jason Swindle (Jason), a minor, filed the present action against the Neshoba County School District (School District) pursuant to the Mississippi Torts Claims Act (MTCA), Mississippi Code Annotated section 11-46-1 (Rev. 2012), et seq., after his son was injured during a school-sponsored activity. The Neshoba County Circuit Court granted the School District's motion for summary judgment after finding the School District was entitled to discretionary-function immunity under the MTCA. Swindle now appeals. We find that the trial court erred in determining that discretionary

Page 871

immunity of the MTCA barred the action. We, therefore, reverse the grant of summary judgment and remand this case to the trial court for further proceedings. We find a genuine issue of material fact exists as to whether the School District violated its affirmative duty to maintain discipline and to supervise the students, as required by the School District's handbook.

FACTS

¶2. On May 4, 2007, two members of the Neshoba Central High School football team, Eathan Scarbrough and Jason, got into a physical altercation on the football field during football practice after school. Jason testified that he was walking back to the lines during practice when all of a sudden he felt Eathan on top of him, hitting him. The coaches on the field intervened and inquired as to why the two were fighting. Jason responded, " I don't know," and Eathan gave no response. During his deposition, Jason admitted that these types of minor skirmishes are common during football practice, due to its physical nature, and the skirmishes are usually over soon after they happen.

¶3. According to Swindle, the next day, on May 5, 2007, when left unsupervised in front of the football locker room after football practice, Eathan again attacked Jason and accused him of talking negatively about Eathan. This time, Eathan beat Jason so severely that he suffered brain damage and bodily injury. Swindle states that Jason suffered a seizure after being knocked to the ground by Eathan. The players notified the coaches of the altercation. Upon arriving at the field house, Coach John Mullins observed Jason lying on the ground, and he testified that Jason was not exhibiting any seizure-like symptoms at that time. When Coach Mullins knelt down to check on Jason, he testified that Jason lunged out and punched Coach Mullins in the nose while yelling at Eathan. Coach Mullins also stated that several coaches and players had to restrain Jason.

¶4. Coach Chuck Friend then instructed Jason to follow him to his office. Jason informed Coach Friend that he could not remember what happened, so Coach Friend returned to the field house to gather details from the players who had witnessed the incident. Swindle claims that the coaches did not call for immediate emergency medical assistance upon learning of the altercation. He also states that Jason suffered a second seizure, this time while unattended in Coach Friend's office, when Coach Friend was questioning other football players about the incident. Coach Mullins arrived to the office and observed Jason experiencing the second seizure and called an ambulance.

¶5. On February 13, 2009, Swindle filed his third amended complaint against the School District, Eathan, and Eathan's parents, Wendell and Martha Scarbrough, in Neshoba County Circuit Court. Swindle alleged that the School District breached the following duties: the duty to discipline and supervise its students as set forth in the Neshoba County School District handbook; the duty to provide a quick response to a medical emergency; and to adequately ...


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