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Herndon v. Mosley

Neither malice nor intent to injure can strip a state employee of immunity under the State Tort Claims Act for torts committed within scope of the employee's official duties.

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A 15-year-old student injured when two correctional officers restrained him during his class’s visit to a prison sued those officers individually. Finding undisputed evidence that the officers were acting within the scope of their official state duties, the trial court granted the officers’ motion for summary judgment. The student appeals, claiming that the abusive and malicious nature of the officers’ actions stripped away any immunity protection. We affirm on the ground that where a state officer is performing his official state duties, OCGA § 50-21-25 a immunizes those actions regardless of their malicious or abusive nature.

Construed in favor of the plaintiff student, the evidence showed that Rusty Herndon’s school class was visiting a prison as part of a program designed to imbue students with the desire not to engage in behavior that would land them in prison. Prison officials warned the students to follow all tour instructions strictly. One instruction was that students were to keep their hands behind their backs and that they were not to place their hands in their pockets. Herndon forgot this instruction and placed his thumbs in the front pockets of his pants. The two correctional officers escorting the group confronted Herndon and required him to do push-ups. When Herndon refused to continue doing push-ups as demanded by the officers, the officers rushed him and abusively restrained him, injuring his knee, neck, nose, and lower back.

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