Collar v. Univ. of S. Ala. (Ex parte Aull)

• Decision Date: 14 February 2014
• Docket Number: 1120641.
• Citation: 149 So.3d 582
• Parties: Ex parte Zeke AULL. (In re Reed Collar and Bonnie Collar, as parents of Gilbert Collar, a minor, deceased v. University of South Alabama et al.)
• Court: Alabama Supreme Court

149 So.3d 582

Ex parte Zeke AULL.

(In re Reed Collar and Bonnie Collar, as parents of Gilbert Collar, a minor, deceased

v.University of South Alabama et al.)

1120641.

Supreme Court of Alabama.

Feb. 14, 2014.

Michael E. Upchurch and David A. Strassburg, Jr., of Frazer, Greene, Upchurch & Baker, LLC, Mobile, for petitioner.

Jere L. Beasley, J. Cole Portis, and Benjamin L. Locklar of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery; and Charles J. Potts and Joshua Briskman of Briskman & Binion, P.C., Mobile, for respondents.

Opinion

WISE, Justice.

The respondents, Reed Collar and Bonnie Collar, as the parents of Gilbert Collar, a deceased minor, sued the University of South Alabama (“the University”); Zeke Aull, the chief of police for the University; Trevis Austin, a police officer for the University; and fictitiously named defendants, asserting claims arising from Gilbert's death on the University's campus in Mobile. Chief Aull filed a motion to dismiss the claims against him, on the basis that he was immune from suit pursuant to Art. I, § 14, Ala. Const. of 1901, and that, to the extent the complaint could be read as asserting a claim against him in his individual capacity, that claim was due to be dismissed on the ground of State-agent immunity. The trial court denied Chief Aull's motion to dismiss, and Chief Aull filed a petition for a writ of mandamus requesting this Court to direct the trial court to vacate its order denying the motion to dismiss and to enter an order dismissing the claims asserted against him. We grant the petition and issue the writ.

Facts and Procedural History

In October 2012, Gilbert was a student at the University. During the early morning hours of October 6, 2012, Gilbert and some other students were talking outside a dormitory at the University. The complaint alleges:

“At some point while they were talking, Gilbert Collar was given a substance that is believed to have included illegal drugs.

“11. Gilbert Collar had a sudden and immediate reaction to the substance he ingested. The reaction caused him either to become extremely hot or to believe that he was very hot. Gilbert Collar lost the ability to fully understand his actions and to reason. As a result, Gilbert Collar took off his clothes and began running into and out of traffic on the campus of the University of South Alabama.”

The complaint also alleges that Gilbert subsequently went to the University's police station and began hitting the windows of the police station. Gilbert started to walk away from the building but came back and started hitting the door of the police station. Gilbert then again walked away from the police station.

At that time, Officer Austin and a dispatcher were inside the police station. Officer Austin came out of the police station through the door Gilbert had hit, with his weapon drawn. After Officer Austin called to Gilbert, Gilbert started to advance toward the police station and “immediately began acting in an erratic manner.” The complaint further alleges:

“Officer Austin began backing up and Gilbert Collar continued to move toward him, crouching down, jumping up and bounding around....

“....

“... At no point during the ensuing moments did Gilbert Collar ever touch Officer Austin. On one or more occasions, Gilbert Collar went to the ground and put distance between himself and Officer Austin.

“....

“... When Gilbert Collar was a few feet from Officer Austin, and for unexplainable reasons, Officer Austin shot Gilbert Collar. After being shot, Gilbert Collar rose to his feet and walked a short distance before he fell to the ground for the last time and died.

“... Literally seconds after Officer Austin fired the fatal shot, other police officers arrived at the station and were prepared to assist to control the situation and arrest Gilbert Collar, if necessary.

“... Even though Officer Austin had at his disposal less lethal means of force, namely, his physical ability, a baton and pepper spray, he was not provided with option of a [T]aser, a weapon known to be effective for controlling subjects who are acting irrationally for some reason.

“... Defendants Chief Zeke Aull, the University of South Alabama, and others, including Fictitious Parties A–L, failed to provide a [T]aser, a non-lethal weapon to its police officers, including Officer Austin.”

On December 3, 2012, the Collars sued the University, Chief Aull, Officer Austin, and fictitiously named parties. Count one of the complaint sought injunctive relief from the University and Chief Aull in the form of requiring specific training and equipment for police officers on the University's campus. Count three alleged negligence claims against the University, Chief Aull, and fictitiously named parties A–L and sought monetary damages. Counts two and four alleged that Officer Austin negligently used excessive force against Gilbert and that, in using excessive deadly force, Officer Austin acted wilfully, beyond his authority, and/or under a mistaken interpretation of existing laws. Finally, count five raised negligence claims against fictitiously named parties M–Z.

On December 18, 2012, the University filed a motion to dismiss the Collars' claims against it on the ground that it was entitled to State immunity pursuant to Art. I, § 14, Ala. Const. of 1901. The trial court subsequently granted the University's motion.

On December 27, 2012, Chief Aull filed a motion to dismiss the claims against him. In his motion, Chief Aull asserted that he also was immune from suit pursuant to Art. I, § 14, Ala. Const. of 1901. He also asserted that, to the extent the complaint could be read as asserting a claim against him in his individual capacity, that claim was due to be dismissed on the ground of State-agent immunity.¹ On February 8, 2013, the trial court entered an order denying Chief Aull's motion to dismiss. On March 4, 2013, Chief Aull filed his petition for a writ of mandamus in this Court.

Standard of Review and Applicable Law

“ ‘As this Court has consistently held, the writ of mandamus is a

“ ‘ “ ‘drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ ”

“ ‘Ex parte Wood, 852 So.2d 705, 708 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993) ). “ ‘In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review....’ ” Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 57 (Ala.2006) (quoting Ex parte Haralson, 853 So.2d 928, 931 (Ala.2003) ).

“ ‘ “In Newman v. Savas, 878 So.2d 1147 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:

“ ‘ “ ‘A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.’

“ ‘ “878 So.2d at 1148–49.”

“ ‘Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala.2005). We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff. Drummond Co., 937 So.2d at 58.’

“Ex parte Alabama Dep't of Transp., 978 So.2d 17, 20–21 (Ala.2007).”

Ex parte Alabama Dep't of Transp., 978 So.2d 718, 720 (Ala.2007).

“The issue of immunity is a jurisdictional one. ‘This constitutionally guaranteed principle of sovereign immunity, acting as a jurisdictional bar, precludes a court from exercising subject-matter jurisdiction. Without jurisdiction, a court has no power to act and must dismiss the action.’ Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 435 (2001). Therefore, a court's failure to dismiss a case for lack of subject-matter jurisdiction based on the doctrine of sovereign immunity may properly be addressed by a petition for the writ of mandamus. See Ex parte Alabama Dep't of Mental Health & Mental Retardation, 837 So.2d 808, 810–11 (Ala.2002).”

Ex parte Murphy, 72 So.3d 1202, 1205 (Ala.2011).

With regard to claims against State officials in their official capacity, this Court has stated:

“ ‘ “It is settled beyond cavil that State officials cannot be sued for damages in their official capacities. Burgoon v. Alabama State Dep't of Human Res., 835 So.2d 131, 132–33 (Ala.2002).” Ex parte Dangerfield, 49 So.3d [675,] 681 [ (Ala.2010) ].’

“Ex parte Montgomery Cnty. Bd. of Educ., 88 So.3d 837, 842 (Ala.2012). In Vandenberg v. Aramark Educational Services, Inc., 81 So.3d 326, 332 (Ala.2011), this Court stated:

“ ‘This Court has held that the immunity afforded the State by § 14 applies to instrumentalities of the State and State officers sued in their official capacities when such an action is effectively an action against the State. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003). We have specifically “extended the restriction on suits against the State found in § 14 ‘to the state's institutions of higher learning’ and ha[ve] held those institutions absolutely immune from suit as agencies of the State.” Ex parte Troy Univ., 961 So.2d 105, 109 (Ala.2006) (quoting Taylor v. Troy State Univ., 437 So.2d 472, 474 (Ala.1983) ). This § 14 bar also prohibits “actions against officers, trustees, and employees of state universities in their official capacities.” Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004).'

“In Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831, 839–840 (Ala.2008), this Court stated:

“ ‘To determine whether an action

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