Hollis v. City of Brighton

"We notice a difference between certain critical language in the statute, §6-5-338(a), [Ala. Code 1975,] and certain critical language in the [Ex parte]Cranman[792 So.2d 392(Ala. 2000),] restatement describing the conduct immunized. That is, the statute refers to `conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties' while immune category (4) of the [Ex parte]Cranmanrestatement refers to conduct `exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons.' In the particular case now before us, we need not decide whether or how the difference between the language of the statute and the language of theCranmanrestatement affects the scope of the immunity, since the record does not establish without dispute or as a matter of law that the act of the policeman in ordering the plaintiffs not to reenter the burning house to fight the fire fits withineitherdescription of immune conduct. Nor does the record establish without dispute or as a matter of law that the act of the policeman fits within any of the otherCranmancategories of immune conduct. Thus, we cannot rely on the §6-5-338(a) immunity, as described by either the statute itself or theCranmanrestatement, to affirm the summary judgment on the plaintiffs' claim for vicarious liability for the act of the policeman.See Ex parte Rizk,791 So.2d [911] at914[(Ala. 2000)]:

"`Dr. Rizk's treatment of his patient, the plaintiff's decedent, does not fit within any of the categories of immune State-agent conduct contained in theCranmanrestatement. Therefore, Dr. Rizk is not immune.'

"The policeman may or may not have been negligent in ordering the plaintiffs not to reenter the burning house to fight the fire. Thus, the City may or may not be liable for his conduct. That issue is not before us because the summary-judgment motion of the City did not raise the factual merits of the plaintiffs' claims.See Liberty National[Life Ins. Co. v. University of Alabama HealthServs.,881 So.2d 1013(Ala. 2003),] andTanner[v. State Farm Fire Cos.Co.,874 So.2d 1058(Ala. 2003)]. Accordingly, while we must reverse the summary judgment on this claim, we express no opinion about the factual merits."

"`We review a summary judgment de novo.'Potter v. First Real Estate Co.,844 So.2d 540,545(Ala. 2002) (citation omitted). `Summary judgment is appropriate only when "there is noPage 304genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law."'Ex parte Rizk,791 So.2d 911,912(Ala. 2000) (citations omitted).

"`In determining whether the nonmovant has created a genuine issue of material fact, we apply the "substantial-evidence rule" — evidence, to create a genuine issue of material fact, must be "substantial." §12-21-12(a), Ala. Code 1975. "Substantial evidence" is defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved."West v. Founders Life Assurance Co. ofFlorida,547 So.2d 870,871(Ala. 1989).'

"Callens v. Jefferson County Nursing Home,769 So.2d 273,278-79(Ala. 2000) (footnote omitted). In deciding a motion for a summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party.Bruce v. Cole,854 So.2d 47(Ala. 2003), andPitney Bowes, Inc. v. Berney OfficeSolutions,823 So.2d 659(Ala. 2001).See Exparte Helms,873 So.2d 1139,1143(Ala. 2003), andWillis v. Parker,814 So.2d 857(Ala. 2001)."

"The Court received argument on July 20, 2004 on the Summary Judgment and finds there to be no issue of fact that is in dispute and that [the City] is entitled to a judgment as a matter of law. Summary Judgment granted for the [City]. Costs taxed as paid."

"[T]he record does not establish without dispute or as a matter of law that the act of the policeman in ordering the [Hollises] not to reenter the burning house to fight the fire fits withineitherdescription of immune conduct. Nor does the record establish without dispute or as a matter of law that the act of the policeman fits within any of the otherCranmancategories of immune conduct. Thus, we cannot rely on the §6-5-338(a) immunity, as described by either the statute itself or theCranmanrestatement, to affirm the summary judgment on the [Hollises'] claim for vicarious liability for the act of the policeman. . . .

"`. . . .'

"The policeman may or may not have been negligent in ordering the [Hollises] not to reenter the burning house to fight the fire. Thus, the City may or may not be liable for his conduct. That issue is not before us because the summary-judgment motion of the City did not raise the factual merits of the [Hollises'] claims.See Liberty NationalandTanner, supra.Accordingly, [although] we must reverse the summary judgment on this claim, we express no opinion about the factual merits."

"Peace-officer immunity, like State-agent immunity,

2

does not provide immunity from liability for the commission of an intentional tort, but only for negligence in the exercise of judgment. SeeEx parte Turner,840 So.2d 132,136(Ala. 2002)(`"a State agent shall not be immune from civil liability in his or her personal capacity . . . (2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."' (quotingEx parteCranman,792 So.2d 392,405(Ala. 2000))).

"2

The test for State-agent immunity, as discussed inEx parte Cranman,792 So.2d 392(Ala. 2000), and adopted by a majority of this Court inEx parte Butts, withholds immunity from State agents acting in their personal capacity, `"when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."'Ex parte Butts,775 So.2d 173,178(Ala. 2000) (quotingCranman,792 So.2d at 405)."

"Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agentshallnot be immune from civil liability in his or her personal capacity

". . . .

"(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."

"[The Hollises] generally agree with the statement of facts provided by the [City] except in addition thereto requests the court consider the testimony of Ben Hollis attached hereto pursuant to which he stated that at the time the City of Brighton Police Officer ordered his wife and him out of the house that the fire in the bedroom involved only the curtains and could have been extinguished. According to Mr. Hollis, the police officer prohibited Mr. Hollis from further attempting to extinguish the fire. It is this unreasonable, negligent, and/or unskillful act which is the basis of [the Hollises'] claim against the city based on the negligence and/or unskillfulness of its police officer."

"[The Hollises] misinterpret the Supreme Court's decision [inHollis I] in [their] response to [the City's] Motion for Summary Judgment. The Supreme Court did not ask the factual question whether or not the police officer's order to the [Hollises] to evacuate their house was `reasonable.' The Court simply stated that `the record does not establish without dispute or as a matter of law that the act of the policeman in ordering the [Hollises] not to reenter the burning house to fight the fire was within either [6-5-338(a) orCranman's] description of immune conduct.' [The City] shows that Police Officer Davis'[s] conduct fits within either description.

"`Reasonableness' is not the standard by which discretionary immunity is reviewed. The standard to be applied is not a `reasonable' one, but, rather, whether the defendant acted in bad faith or with malice or willfulness.Ex parte Davis, 721 So.2d 685 (Ala. 1998). To determine whether a public official is entitled to discretionary function immunity, the court applies a two-prong test. First, the defendant officer must prove that the `plaintiff's claims arise from the defendant's performance of a discretionary function.'Id.at 689. Once the defendant officer satisfies this first prong, `the burden then shifts to the plaintiff to establish that the defendant acted in bad faith or with malice or willfulness, in order to deny the defendant discretionary immunity from suit.'Id.

"In its brief in support of summary judgment, [the City] meets this burden by showing that its conduct falls within either immunity category. Therefore, the burden shifts, and the [Hollises] must prove that the [City] acted in bad faith or with malice or willfulness. [The Hollises] have simply failed to prove this. . . ."

"(a) A person commits the crime of refusing to assist in fire control if, upon command by a fireman or peace officer identified to him as such, he intentionally disobeys areasonableorder or regulation made in the relation to the conduct of persons in the vicinity of a fire.

"(b) Refusing to assist in fire control is a Class C misdemeanor."

"We therefore restate the rule governing State-agent immunity:

"A State agentshallbe immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's

"(1) formulating plans, policies, or designs; or

"(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:

"(a) making administrative adjudications;

"(b) allocating resources;

"(c) negotiating contracts;

"(d) hiring, firing, transferring, assigning, or supervising personnel; or

"(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or

"(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law enforcement officers' arresting or attempting to arrest persons; or

"(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.

"Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agentshallnot be immune from civil liability in his or her personal capacity

"(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or

"(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."

"`Cranmanis arestatementof the law of immunity, not astatute.. . .Cranmanstates categories, but does not purport to set forth an exhaustive list of activities falling within each category.'Howard v. City ofAtmore,887 So.2d 201,206(Ala. 2003).

"BeforeCranman, the immunity accorded a peace officer under §6-5-338(a) was analyzed in terms of whether at the time of the act complained of the officer was engaged in the performance of a discretionary act.

"`Thus, this statute [§6-5-338(a)] shields police officers from tort liability fordiscretionaryacts performed "within the line and scope of [their] law enforcement duties." [§6-5-338(a)];Williams,741 So.2d at 1076. "Alabama law has defined `discretionary acts' as `"[t]hose acts [as to which] there is nohard andfast ruleas to course of conduct that one must or must not take" and those requiring "exercise in judgment and choice and [involving] what is just and proper under the circumstances."'"Montgomery v.City of Montgomery,732 So.2d 305,310(Ala.Civ.App. 1999) (emphasis added). "[U]nder the distinction between ministerial and discretionary functions, `the official isPage 308immune only where that which he does in the performance of his lawful duties requires "personal deliberation, decision and judgment."'"White v.Birchfield,582 So.2d 1085,1087(Ala. 1991).'

"`By enacting [§6-5-338], the Legislature intended to afford municipal law-enforcement officials the immunity enjoyed by their state counterparts.Sheth v. Webster,145 F.3d 1231,1237(11th Cir.1998). Indeed, "[t]his statute, by its terms, extendsstate-agentimmunity to peace officers performing discretionary functions within the line and scope of their law-enforcement duties."Moore v. Crocker,852 So.2d 89,90(Ala. 2002) (emphasis added).

"`InEx parte Cranman, supra, this Court "restated the law of state-agent immunity in Alabama."Moore,852 So.2d at 90. SinceCranman, we analyze immunity issues in terms of "State-agent" immunity, rather than "under the dichotomy of ministerial versus discretionary functions."Ex parte Hudson,866 So.2d 1115,1117(Ala. 2003). See alsoGiambrone v.Douglas,874 So.2d 1046,1052(Ala. 2003);Ex parte Turner,840 So.2d 132,134n. 1 (Ala. 2002). Thus, we will address the applicability of peace-officer immunity under the principles set forth inCranman.SeeMoore, supra;Exparte Duvall,782 So.2d 244(Ala. 2000).'

"We notice a difference between certain critical language in the statute, §6-5-338(a), and certain critical language in theCranmanrestatement describing the conduct immunized. That is, the statute refers to `conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties' while immune category (4) of theCranmanrestatement refers to conduct `exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons.'"

"The day may well come when the restatement inExparte Cranman,792 So.2d 392(Ala. 2000), should be modified so as to extend the reference in paragraph (4) dealing with `exercising of judgment in the enforcement ofcriminal laws,'792 So.2d at 405(emphasis added), to include an additional phrase dealing with `discharge of law-enforcement duties.' However, I agree with the main opinion that that issue at this stage of the proceedings in the instant case is not yet ripe for determination."

"A State agentshallbe immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's

". . . .

"(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons,or servingaspeaceofficers under circumstances entitling such officersto immunity pursuant to §6-5-338(a), Ala. Code1975."