Ex parte Herring

• Docket Number: SC-2022-0981
• Decision Date: 27 October 2023
• Parties: Ex parte Dr. Lisa N. Herring and Dr. John C. Lyons, Jr. v. Dr. Lisa N. Herring et al. In re: Tynesha Tatum, as personal representative of the Estate of Courtlin La'Shawn Arrington, a deceased minor, and as parent and next friend of G.T., a minor child enrolled at Huffman High School
• Court: Alabama Supreme Court

1

Ex parte Dr. Lisa N. Herring and Dr. John C. Lyons, Jr.

In re: Tynesha Tatum, as personal representative of the Estate of Courtlin La'Shawn Arrington, a deceased minor, and as parent and next friend of G.T., a minor child enrolled at Huffman High School v. Dr. Lisa N. Herring et al.

No. SC-2022-0981

Supreme Court of Alabama

October 27, 2023

Jefferson Circuit Court: CV-18-901975

PETITION FOR WRIT OF MANDAMUS

COOK Justice

This case arises from the death of Courtlin La'Shawn Arrington, a 17-year-old girl who was inadvertently shot and killed by a classmate on the campus of Huffman High School in Birmingham. After Courtlin's death, her mother, Tynesha Tatum, as the personal representative of Courtlin's estate, commenced a wrongful-death action in the Jefferson Circuit Court against Dr. Lisa N. Herring, who was the Superintendent of Birmingham City Schools at the time of the shooting, and Dr. John C. Lyons, Jr., the principal of Huffman High School. In her complaint, Tatum alleged that Herring's and Lyons's wanton failure to provide adequate security at Huffman High School caused Courtlin's death.

Herring and Lyons moved the trial court for a summary judgment arguing, among other things, that the action against them was barred by the doctrine of State-agent immunity. Following the trial court's denial of their summary-judgment motion Herring and Lyons petitioned this Court for a writ of mandamus directing the trial court to enter a summary judgment in their favor on the ground of State-agent immunity. Because there is no evidence indicating that Herring's or Lyons's allegedly wanton conduct violated any specific, mandatory directive, we conclude that State-agent immunity bars Tatum's action against them. We therefore grant the petition and issue the writ.

Facts and Procedural History

On March 7, 2018, Michael Barber, a junior at Huffman High School ("the school"), and another student, Malcolm Evans, walked out of the school cafeteria and exited the building through a side door. Barber and Evans then departed from the school's campus in Evans's vehicle. The two students drove to a nearby bank, where Barber cashed a paycheck, before returning to the school's campus. After arriving in the student parking lot, Barber retrieved his loaded 9-millimeter handgun from Evans's vehicle and put it in his shorts. Barber called another student who was inside the school building and asked that student to let him in through a side door of the school building.^[1] Although the side door was locked from the outside, there was nothing to prevent the student who was inside the school building from opening the side door to let Barber into the school building. After entering the school building, Barber went to his history class. When that class ended, Barber attempted to go to the school field house for his last class of the day. For reasons unknown, a faculty member who was monitoring the hallway at that time prevented him from entering the field house.

After being denied access to the field house, Barber walked into another class and sat down. Although Barber was not a student in that class, the teacher allowed him to stay. At some point, Barber left that classroom. Barber went to the bathroom and then loitered in the hallway, where he struck up a conversation with one of Courtlin's classmates. Courtlin, who was standing nearby, spotted the handgun in Barber's shorts. When Barber took the handgun out of his shorts to show it to Courtlin, the gun went off and Courtlin was killed.

In May 2018, Tatum, as personal representative Courtlin's estate, commenced the instant action against Herring and Lyons. As previously noted, in her complaint, Tatum asserted a wrongful-death claim, alleging that Herring's and Lyons's wanton misconduct caused her daughter's death.^[2] In May 2022, Herring and Lyons filed a joint motion for a summary judgment, arguing, among other things, that they were entitled to State-agent immunity because the claim against them was based on actions that clearly fell within the categories of conduct recognized as entitling a State agent to immunity set forth in Ex parte Cranman, 792 So.2d 392 (Ala. 2000).^[3]

Tatum filed a response to the summary-judgment motion, arguing that Herring and Lyons were not entitled to State-agent immunity because, she said, "they acted 'beyond their authority' in violating and/or failing to enforce several policies and rules designed to ensure the safety of students in the Birmingham City School System." Attached to Tatum's response were several exhibits, including the expert report and deposition testimony of Kenneth S. Trump, the president of a Clevelandbased consulting firm specializing in school safety. Herring and Lyons moved to strike several of the evidentiary submissions attached to Tatum's response. The trial court, however, declined to strike Trump's expert report or deposition testimony.

A summary-judgment hearing took place on June 29, 2022. On August 11, 2022, Tatum moved to supplement her response to the summary-judgment motion with the signed affidavit of Jamesse Tolliver, a witness who alleged that she had seen Barber walk into the school building with a gun on the day of the shooting and had called the school office to report the incident. Herring and Lyons moved to strike Tolliver's affidavit on August 12, 2022. On September 30, 2022, the trial court entered an order denying Herring and Lyons's motion for a summary judgment.^[4] Herring and Lyons subsequently filed their mandamus petition.

Standard of Review

"'While the general rule is that denial of a summary-judgment motion is not immediately reviewable by an appellate court, the exception to the general rule is that a denial of a motion for a summary judgment grounded on a claim of immunity is immediately reviewable by a petition for a writ of mandamus ....'

"Ex parte Wood, 852 So.2d 705, 708 (Ala. 2002).

"'A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right 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) the properly invoked jurisdiction of the court.'

"Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001).

"'This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross &Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce "substantial evidence" as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-2112. "[S]ubstantial evidence is 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 Assur. Co. of Fla., 547 So.2d 870, 871 (Ala. 1989).'

" Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004)."

Ex parte Jackson Cnty. Bd. of Educ., 4 So.3d 1099, 1101-02 (Ala. 2008).

Discussion

The question presented by this mandamus petition is whether Herring and Lyons are entitled to a summary judgment in their favor on the basis of State-agent immunity. In Ex parte Cranman, 792 So.2d 392 (Ala. 2000), this Court restated the test for determining when a State agent is immune from civil liability. See note 3, supra. That test provides, in pertinent part:

"A State agent shall be 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

''.

''.

"(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 agent shall not 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."

Id. at 405.

To invoke the protections of State-agent immunity, a State agent must first demonstrate that the claim against the State agent arises from a function that would entitle him or her to immunity. Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala. 2003). If the State agent makes this initial showing the burden then shifts to the plaintiff to "show that one of the...