Ex parte Hudson

• Decision Date: 14 March 2003
• Citation: 866 So.2d 1115
• Parties: Ex parte Russell HUDSON. (In re Duane Haston, Jr., by and through his father and next friend, Duane Haston, Sr., and Duane Haston, Sr. v. C.F. Vigor High School, Mobile County School Board of Commissioners, Garner & Associates, Inc., and Interkal, Inc.).
• Court: Alabama Supreme Court

866 So.2d 1115

Ex parte Russell HUDSON.

(In re Duane Haston, Jr., by and through his father and next friend, Duane Haston, Sr., and Duane Haston, Sr. v. C.F. Vigor High School, Mobile County School Board of Commissioners, Garner & Associates, Inc., and Interkal, Inc.).

1011148.

Supreme Court of Alabama.

March 14, 2003.

Rehearing Denied May 30, 2003.

Mark S. Boardman and Dana J. Bolden of Boardman, Carr, Weed & Hutcheson, P.C., Chelsea; and Bob Sherling, Jr., of Campbell, Duke & Sherling, Mobile, for petitioner.

Donald M. Briskman of Briskman & Binion, P.C., Mobile, for respondents Duane Haston, Sr., and Duane Haston, Jr.

PER CURIAM.

Russell Hudson, an employee with the Mobile County School System, petitioned this Court for a writ of mandamus directing the Mobile Circuit Court to dismiss all claims brought against him by Duane Haston, Jr., a former student at Vigor High School. We grant the petition in part, deny it in part, and issue the writ.

Russell Hudson started working for the Mobile County School System in 1984; at the time of this appeal he was a senior buyer in its purchasing department. In 1994, Hudson was the purchasing foreman in the school system's renovations department. His responsibilities included receiving bids, reviewing bids, ensuring that bidders met minimum bid specifications, making recommendations on the bids to the school board, and executing purchase orders. As purchasing foreman, Hudson's involvement with a project ended once the county board of education awarded a contract and the school system submitted the purchase orders to the vendor.

In March 1994, the Mobile County School System solicited bids for the delivery and installation of bleachers in the gym at C.F. Vigor High School. The bleachers were not to be stationary; they were to pull out when necessary for seating and to close against the wall when more floor space was needed in the gym. The school system ultimately contracted with Garner & Associates, Inc., to deliver and install bleachers manufactured by Interkal, Inc. Within the school system, a number of individuals from the purchasing, new construction, and renovations departments, including Hudson, worked to draft the bid specifications for the bleachers for Vigor High School. Once the school system had received bids from vendors, Hudson checked to ensure that the bids complied with the bid specifications and then made a recommendation to the school board as to which bid should be accepted. The school board made its decision, and once Hudson, or someone in his office, issued the purchase orders relating to the bleacher project, Hudson's work on the project ended. Hudson did not supervise the actual installation or maintenance of the bleachers at Vigor High School.

Garner & Associates claims that in October 1994, in connection with the Vigor bleacher project, it sent Hudson a bleacher maintenance manual. Hudson stated in his deposition that he did not recall having received the manual, but that if he had received it, he would have passed it on to the project site foreman, Clayton Haggett. Hudson stated that, though no one has ever told him that it was part of his job to forward maintenance manuals to job sites, if he received a manual or other similar documentation relating to a project, he usually would pass it along to the site foreman as part of his job.

On December 12, 1997, at the request of their gym teacher, Duane Haston and two other Vigor High School students tried to close the bleachers by pushing them towards the wall. The bleachers slipped off track and fell onto Haston, breaking his back. Haston, by and through his father and next friend Duane Haston, Sr., sued Russell Hudson and others alleging, among other claims, that Hudson had negligently inspected and maintained the bleachers at Vigor High School.

Hudson and the other individual-school-system-employee defendants moved for a summary judgment on the ground that they were protected by State-agent immunity. The trial court entered a summary judgment in favor of all of the individual-school-system-employee defendants except Hudson. The trial court's order denying Hudson's summary-judgment motion is not included in the materials submitted to this Court. Hudson moved for permission to appeal pursuant to Rule 5, Ala. R.App. P., and the trial court denied Hudson's motion. Hudson then petitioned this Court for the writ of mandamus.

"A writ of mandamus is an extraordinary remedy, and it `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 properly invoked jurisdiction of the court.'"

Ex parte Butts, 775 So.2d 173, 176 (Ala. 2000) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). "[A] petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity." Id.

Hudson argues in his petition that he is entitled to State-agent immunity because, he says, all of his actions as purchasing foreman are discretionary functions, the execution of which is protected by immunity. Haston argues in reply that Hudson's duties are ministerial and that his actions are not entitled to State-agent or discretionary-function immunity.

We decline the parties' invitation to address the issues under the dichotomy of ministerial versus discretionary functions because this Court in Butts adopted the test for State-agent immunity suggested in Ex parte Cranman, 792 So.2d 392 (Ala. 2000). Butts, 775 So.2d at 178. Cranman "restate[d] ... the rule governing State-agent immunity." 792 So.2d at 405. In order to simplify the analysis of State-agent immunity issues, Cranman suggested certain categories of State-agent action where agents are immune in the exercise of their judgment, such as, for example, cases where an agent is:

"(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...."

792 So.2d at 405 (emphasis added). Under Cranman, a plaintiff attempting to pierce a defense of State-agent immunity would have to demonstrate that a State agent was not exercising his or her judgment in the manner set forth in the examples in Cranman; that the agent had violated the Constitution or laws of the United States, or the Constitution or laws of Alabama or some regulation of this State; or that the agent had acted "willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law." 792 So.2d at 405.

Haston, resorting to the pre-Cranman dichotomy of ministerial and discretionary function, argues that Hudson is not entitled to State-agent immunity because, he says, Hudson was not engaged in a discretionary function. Haston argues (1) that Hudson was under a legal duty to inspect the bleachers; (2) that Hudson's role in evaluating the bids for the bleachers was ministerial; and (3) that Hudson had a ministerial duty to pass along to the project foreman the maintenance manual provided by Interkal for the bleachers and that Hudson's failure to carry out this duty was negligent or wanton behavior. We address the issues in the context of whether in regards to his actions relating to the bleachers Hudson was involved in the exercise of judgment within the framework of the examples set forth in Cranman.

Haston argues that a regulatory scheme imposes a duty on Hudson to inspect the bleachers and that Hudson failed to carry out this duty. Haston cites a National Fire Protection Association ("NFPA") rule that stipulates "[a]n annual inspection and required maintenance of each grandstand shall be performed to assure safe conditions. At least biennially the inspection shall be performed by a professional engineer or qualified service personnel."¹ Haston indicates that compliance with this rule became part of Hudson's job because NFPA codes were incorporated by reference into the bid specifications for the Vigor High School bleachers. Haston further argues that Hudson would be the person responsible for inspecting the bleachers because his job as purchasing foreman required him to ensure that vendors complied with the bid specifications.

Hudson argues that the facts do not support Haston's argument. Thomas Duncan, who directed the renovation projects for Mobile County public schools at the time the bid was awarded for the Vigor High School bleachers, testified in his deposition that Bobby Nelson, the facilities planner for the Mobile County public schools, was responsible for hiring an engineer to inspect the bleachers. According to Duncan, Hudson, as the purchasing foreman, had no duty to inspect the completed projects. Duncan testified that Hudson checked that bids met bid specifications, not that the completed work met contract specifications.

Hudson also argues that his duties as purchasing foreman were not ministerial. Again, we recast this issue into the context of the exercise of judgment within the framework of the Cranman analysis. Bid proposals necessarily incorporate safety codes, and Hudson's job required him to analyze those codes in evaluating bids on specific projects. Hudson's activities are comparable to the activities referred to in Cranman as a state agent's "exercising his or her judgment ... [in] ... allocating resources [or] negotiating contracts." 792 So.2d at 405.

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