This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-98-1073

Lydia M. Moses,

on behalf of her minor son,

L.M.F., and as parent and

natural guardian of said minor,

Appellant,

vs.

Minneapolis Public Schools,

Special School District #1,

Respondent.

Filed December 8, 1998

Affirmed in part, reversed in part, and remanded

Klaphake, Judge

Hennepin County District Court

File No. 97-9821

Jesse Gant, III, Gant Law Office, 500 Flour Exchange Bldg., 310 Fourth Ave. S., Minneapolis, MN 55415 (for appellant)

Louise Ann Dovre, Jennifer L. Beens, Jeanne Unger, Rider, Bennett, Egan & Arundel, LLP, 2000 Metropolitan Centre, 333 S. Seventh St., Minneapolis, MN 55402 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Appellant Lydia M. Moses, on behalf of her minor son, challenges summary judgment dismissing her negligence claims against respondent Minneapolis Public Schools, District No. 1 (school district). Appellant also challenges the denial of her motion to amend the complaint to add claims of assault, battery, and violation of 42 U.S.C. § 1983 (1994). Because issues of material fact exist only as to a May 1997 fire drill incident, we reverse summary judgment on that negligence claim, but affirm summary judgment on the remaining negligence claims. Because appellant produced sufficient evidence to withstand a motion for summary judgment, we reverse the district court's denial of appellant's motion to amend her complaint to add assault and battery claims. Because appellant failed to allege any school district custom or practice, we affirm the court's denial of her motion to add claims based on a violation of 42 U.S.C. § 1983.

FACTS

At the time of the events alleged in the complaint, appellant's son was seven years old and in first grade at Jefferson Elementary School. He has a condition known as congenital myopathy, which causes weakening of the muscles. The staff at Jefferson was aware of his condition and they, along with appellant, agreed to an Individualized Education Program (IEP) to provide him with special services. The IEP recommends use of a helmet during gym class, provides for an aide on the playground and during gym class, and provides for consultation with a physical therapist.

Appellant's complaint alleges numerous incidents when her son was injured while enrolled at Jefferson or in the Minneapolis Kids Latch-Key Program. While the complaint alleged that reports existed for some of these incidents, appellant produced only one incident report relating to a May 14, 1997 fire drill.

The day of the fire drill was cool and some of the children had their hands in their shirts to keep warm; however, it is not clear if appellant's son had his hands in his shirt. Before entering the school after the fire drill, appellant's son and another boy were sent to the end of the line for misbehaving. As he entered the school, appellant's son tripped over a door threshold, fell on his face, and injured his mouth. A nearby school aide immediately picked him up and took him to the nurse.

D E C I S I O N

I.

To establish her negligence claim, appellant must prove duty, breach, causation, and damages. Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996). A school district's duty is to use reasonable care to supervise students. Fallin v. Maplewood-North St. Paul Dist. No. 622, 362 N.W.2d 318, 321 (Minn. 1985). Generally, a teacher is not required to anticipate the hundreds of unexpected student acts that occur daily or to guard against dangers inherent in rash student acts. Verhel v. Independent Sch. Dist. No. 709, 359 N.W.2d 579, 586 (Minn. 1984). Recovery against a school district for negligent supervision requires a finding "that supervision would probably have prevented the accident." Id. (quoting Sheehan v. St. Peter's Catholic Sch., 291 Minn. 1, 5, 188 N.W.2d 868, 871 (1971)).

The district court divided appellant's negligence claims into two groups: the incidents occurring from June 1996 to May 1997, and the May 1997 fire drill incident. We agree that this record cannot establish appellant's negligence claims based on the pre-fire drill incidents and that summary judgment was properly granted on these claims. The evidence in support of the pre-fire drill claims consists only of general allegations by appellant's son that fail to specify dates, times, places, or any injuries. See Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995) (summary judgment properly granted when plaintiffs failed to present specific facts as to causal connection between injuries and allegedly negligent conduct).

As for the May 1997 fire drill incident, the district court ruled that appellant provided no evidence to establish that any negligence on the part of the school district caused her son's injury. Appellant argues that her son's injury could have been prevented had his teacher kept him nearby and taken his hand to help him over the threshold.

Given the school district's knowledge of the son's condition and given the recommendations of the IEP, fact issues exist as to whether the teacher's conduct was reasonable and whether that conduct caused the son's injury. Accordingly, the district court erred in granting summary judgment on appellant's negligence claim based on the May 1997 fire drill incident.

Both parties brief the issue of official immunity. Although official immunity was addressed by the parties in their summary judgment filings, the district court did not decide the issue. Immunity is a question of law that we review without deference to the district court. Ireland v. Crow's Nest Yachts, Inc., 552 N.W.2d 269, 272 (Minn. App. 1996), review denied (Minn. Sept. 20, 1996). We address the immunity issue because it is not fact dependent and because the lack of a district court ruling causes no prejudice to either party. See Watson v. United Servs. Auto. Ass'n, 566 N.W.2d 683, 687 (Minn. 1997).

Appellant's negligence claim is based on the teacher's conduct and the vicarious liability of the school district. If the conduct of a government employee is protected by official immunity, his or her employer may be vicariously immune. Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn. 1997). Official immunity protects only discretionary decisions, not ministerial duties, which are "absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts." Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 220 (Minn. 1998) (citations omitted). Because the IEP made specific recommendations and provided guidelines for dealing with appellant's son's condition, the teacher's conduct during the fire drill involved the exercise of a ministerial duty not protected by official immunity. See, e.g., id. at 220-21 (bus driver's conduct implementing regulations to secure wheelchair not protected by official immunity); Larson v. Independent Sch. Dist. No. 314, 289 N.W.2d 112, 120 (Minn. 1979) (gymnastics teacher's decision on how to teach gym class not protected by official immunity).

Finally, appellant challenges the district court's order denying her motion for sanctions. Because she provides no support for her argument that the district court abused its discretion by failing to sanction the school district for filing what the district court considered to be a successful motion for summary judgment, we affirm the district court's order.

II.

The district court's denial of appellant's motion to amend her complaint cannot be reversed on appeal absent an abuse of discretion. Hunt v. University of Minn., 465 N.W.2d 88, 95 (Minn. App. 1991). A motion to amend is properly denied when the additional claims could not survive summary judgment. CPJ Enters., Inc. v. Gernander, 521 N.W.2d 622, 625 (Minn. App. 1994).

Appellant sought to add claims of assault and battery based on the conduct of school employees, alleging they "grabbed [her son] in an angry and hostile manner before physically dragging him." The district court ruled that even if appellant could prove the incidents she alleged, she could not establish assault and battery; the court relied on Minn. Stat. § 609.379 (1996), which recognizes a school employee's right to use reasonable force to control or protect students. However, the question of whether the school employees' acts were a reasonable use of force is a fact issue to be answered by the jury. Cf. Paradise v. City of Minneapolis, 297 N.W.2d 152, 155-56 (Minn. 1980) (trial court erred by dismissing assault and battery claims when evidence could support jury finding that officer used more force than necessary for arrest). Thus, the district court abused its discretion in denying appellant's motion to amend her complaint to add claims of battery and assault.[1]

Appellant further sought to add a claim of violation of 42 U.S.C. § 1983 (1994). To prove this claim, appellant must establish that the school district, acting under color of state law, violated her son's rights under the federal constitution. See Johnson v. Morris, 453 N.W.2d 31, 34-35 (Minn. 1990). The district court correctly ruled that appellant could not establish a section 1983 claim against the school district because appellant alleged nothing to establish that the alleged unconstitutional conduct was "an officially sanctioned policy, custom, or usage of the school district." See Jane Doe v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir. 1990) (school district liable under section 1983 only if it has official policy or custom of "persistent and widespread" unconstitutional practices).

Nor do appellant's allegations establish a constitutional claim against the individual school employees under section 1983. See Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (teacher's single slap of student without physical injury, even if done without legitimate purpose, does not rise to level of constitutional violation). The type of contact alleged by appellant, a single incident of grabbing without physical injury, does not establish a constitutional violation recoverable under section 1983. See id.; Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 1015 (7th Cir. 1995) (affirming summary judgment dismissing section 1983 claims because teacher's action of grabbing student's elbow to expedite departure was not deprivation of substantive due process right); Boldthen v. Independent Sch. Dist. No. 2397, 865 F. Supp. 1330, 1337 (D. Minn. 1994) (stigma and intimidation claimed by student did not state constitutional claim). The district court's denial of appellant's motion to amend her complaint to add a section 1983 claim is therefore affirmed.

Affirmed in part, reversed in part, and remanded.

[1] For reasons similar to those discussed in the first issue, official immunity does not apply to the battery and assault claims.