Bathgate v. Mobile County Bd. of School Com'rs

• Court: Alabama Court of Civil Appeals
• Writing for the Court: L. CHARLES WRIGHT; MONROE
• Citation: Bathgate v. Mobile County Bd. of School Com'rs, 689 So.2d 109 (Ala. Civ. App. 1996)
• Decision Date: 01 November 1996
• Parties: 116 Ed. Law Rep. 1300 Stephen E. BATHGATE, Sr., and Ann E. Bathgate, Individually, and as Parents and Next Friends of Stephen E. Bathgate, Jr., a Minor v. MOBILE COUNTY BOARD OF SCHOOL COMMISSIONERS, et al. 2950767.

Page 109

689 So.2d 109

116 Ed. Law Rep. 1300

Stephen E. BATHGATE, Sr., and Ann E. Bathgate, Individually, and as Parents and Next Friends of Stephen E. Bathgate, Jr., a Minor v. MOBILE COUNTY BOARD OF SCHOOL COMMISSIONERS, et al.

2950767.

Court of Civil Appeals of Alabama.

Nov. 1, 1996.

Rehearing Denied Dec. 6, 1996.

Certiorari Denied March 14, 1997

Alabama Supreme Court 1960513.

Peter F. Burns and William M. Cunningham, Jr., of Burns, Cunningham & Mackey, P.C., Mobile, for appellants.

John N. Leach, Jr., of Helmsing, Lyons, Sims & Leach, P.C., Mobile; and Joel F. Danley, Mobile, for Mobile County Health Department, Dr. Bernard H. Eichold II, and Clarence F. Erdman, Jr.

Robert C. Campbell III and Steven L. Terry of Sintz, Campbell, Duke & Taylor, Mobile, for Charles Ratcliffe, Paul J. Sousa, Phillip G. Russell, Alfred Kearley, Albert Lowery, and Wilton Lowery.

Jeff Sessions, Attorney General, and John R. Wible, Assistant Attorney General and General Counsel, for amicus curiae State Dept. of Public Health.

L. CHARLES WRIGHT, Retired Appellate Judge.

Stephen E. Bathgate, Jr., alleges that he contracted cryptococcal meningitis as the result of his exposure to pigeon feces while he was a student at Shaw High School.

Bathgate, acting by and through his parents, sued the Mobile County Board of Education; the members of the Board, individually, and in their official capacity; Paul Sousa (the facilities manager for the Mobile County Schools); Charles Ratcliffe (the assistant superintendent of business operations for the Mobile County Schools); Alfred Kearley (maintenance supervisor for the facilities division of the Mobile County Board of Education); Albert Lowery (principal of Shaw High School); Wilton Lowery (maintenance engineer at Shaw High School); the Mobile County Health Department; Clarence Erdman (director of environmental health services with the Mobile County Health Department); and Dr. Bernard Eichold (Mobile County Health Officer).

The trial court dismissed the Mobile County Board of Education and the Board members as defendants, based on sovereign immunity. The trial court entered a summary judgment in favor of the employees of the Mobile County Board of Education and the employees of the Mobile County Health Department, finding that the employees were entitled to discretionary immunity.

Bathgate appeals. This appeal is before us pursuant to § 12-2-7(6), Code 1975.

The sole issue on appeal is whether the trial court erred in finding that the school board employees and the health department employees were entitled to discretionary immunity.

Ala. Const. art. I, § 14, provides that "the State of Alabama shall never be made a defendant in any court of law or equity." This is the essence of the doctrine of sovereign immunity. County boards of education are local agencies of the State. As such, county boards of education enjoy this immunity. Louviere v. Mobile County Board of Education, 670 So.2d 873 (Ala.1995). County boards of health are also agencies of the State and are entitled to sovereign immunity. Pack v. Blankenship, 612 So.2d 399 (Ala.1992). A State agent is entitled to share in the State's sovereign immunity if the agent's act complained of was committed while that person was engaged in the performance of a discretionary act. Louviere; Nance v. Matthews, 622 So.2d 297 (Ala.1993). In Louviere, our supreme court defined discretionary acts as follows:

" '[t]hose acts [as to which] there is no hard or fast rule as to [the] course of conduct that one must or must not take ... [;] [those requiring] exercise in judgment and choice and [involving] what is just and proper under the circumstances.' "

"Black's Law Dictionary 467 (6th ed. 1990)."

Whether an agent is engaged in a discretionary act is a question of law to be decided by the trial court. Louviere.

School Board Employees

The school board employees are Albert Lowery, Wilton Lowery, Alfred Kearley, Paul Sousa, and Charles Ratcliffe.

Bathgate claims that Alfred Lowery, the principal of Shaw High School; Wilton Lowery, the maintenance engineer for Shaw High School; and Alfred Kearley, the maintenance coordinator for the school board, were negligent and/or acted wantonly in that they knew, or should have known, of an alleged pigeon infestation at Shaw High School and that this alleged infestation presented a health hazard to students. Bathgate also claims that Alfred Lowery, Wilton Lowery, and Alfred Kearley were negligent and/or wanton in their failure to prevent an unsafe condition from developing at Shaw High School.

In his brief Bathgate implies that these employees did nothing to address the pigeon problems. The record reflects, however, that the principal, his staff, and the maintenance department took numerous and repeated actions to deal with the alleged pigeon infestation. In addition to frequent cleaning and sanitizing, numerous efforts were made to prevent the pigeons from roosting. Maintenance department employees enclosed damaged ventilation areas to prevent pigeons from roosting, replaced ventilation turbines, and checked other areas of the school.

We find that Alfred Lowery, Wilton Lowery, and Alfred Kearley were entitled to discretionary immunity. The actions that they took regarding the pigeon droppings and the alleged infestation, whether right or wrong, were based on personal deliberations. Byrd v. Sullivan, 657 So.2d 830 (Ala.1995). There were no "hard or fast" rules as to how to handle an alleged pigeon infestation. Louviere. The trial court did not err in...