Ex parte Nall

• Court: Supreme Court of Alabama
• Citation: 879 So.2d 541
• Parties: Ex parte Keith NALL and Donnie Faulk. (In re Michael Franklin Cannon, Jr., a minor, by and through his father and next friend, Michael F. Cannon; Michael F. Cannon; and Lee D. Cannon v. Donnie Faulk et al.)
• Decision Date: 06 June 2003

879 So.2d 541

Ex parte Keith NALL and Donnie Faulk.
(In re Michael Franklin Cannon, Jr., a minor, by and through his father and next friend, Michael F. Cannon; Michael F. Cannon; and Lee D. Cannon
v.
Donnie Faulk et al.)

1012099.

Supreme Court of Alabama.

June 6, 2003.

As Modified on Denial of Rehearing October 24, 2003.

879 So.2d 542

Mark S. Boardman and Clay R. Carr of Boardman, Carr, Weed & Hutcheson, P.C., Chelsea, for petitioners

Michael A. Worel, David G. Wirtes, Jr., and George M. Dent III of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile, for respondents.

BROWN, Justice.

Coach Keith Nall and Coach Donnie Faulk, defendants in an action pending in the Escambia Circuit Court, petition this Court for a writ of mandamus ordering the trial court to enter a summary judgment in their favor against the plaintiffs, Michael F. Cannon, Jr. ("Michael"), and his father and mother, Michael F. Cannon and Lee D. Cannon. We grant the petition and issue the writ.

Michael played baseball on the Escambia County High School junior-varsity baseball team. On March 15, 1999, the junior-varsity team and the varsity team were conducting a base-running drill during a joint practice session. As part of the drill, a runner would stand at third base while Coach Faulk, the junior-varsity coach, hit a baseball from home plate. The purpose of the drill was to teach the players how to lead off the base, how to "read" the ball off the bat of the hitter, and how to react when the ball was hit. The varsity coach, Coach Nall, stood at

879 So.2d 543

third base instructing the runner. The remaining players on the team, including Michael, stood in the foul area behind the third-base line watching the drill and awaiting their turn as runners. Coach Nall and Coach Faulk had instructed the players to pay attention to the drill and to stand near the fence, away from the field. While the base runner wore a batting helmet, as do all base runners during a game, the players awaiting their turn near the fence were not wearing helmets

In order to replicate what would actually occur during a game, a player would pitch a baseball to Coach Faulk from the pitcher's mound. Coach Nall testified that he instructed Coach Faulk to take "full cuts," or full swings, at the ball so the balls could reach the outfield, as they would in a real game. Coach Faulk testified that he took full swings at the pitched balls; he testified that some of the resulting hits were "high flies," some were "line drives," some just put the ball "in play," and some were hard enough to make the ball roll to the outfield fence.

The injury to Michael occurred when Coach Faulk hit one of the balls pitched to him, and it went foul and hit Michael, who was standing in the area near third base, in the head above his left ear. Coach Nall and Coach Faulk took Michael into the dugout and examined him. A parent who was watching the practice telephoned Michael's mother, who came and picked him up.

Michael testified that, as a result of the accident, he now suffers from headaches, attention deficit disorder, and memory problems. On April 3, 2000, Michael, by and through his father, brought this action, alleging that Coach Nall and Coach Faulk had been negligent and wanton in conducting the practice and in supervising the players. Michael's parents also sought damages for expenses incurred in treating Michael, for emotional and mental anguish, and loss of what is described in the complaint as "filial consortium."¹ On October 17, 2001, Coach Nall and Coach Faulk moved for a summary judgment on the basis of State-agent immunity. On December 20, 2001, the trial court heard oral argument on the motion; on June 27, 2002, it denied the motion. Coach Nall and Coach Faulk now petition for a writ of mandamus directing the trial court to grant their motion for a summary judgment.²

Standard of Review

"While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus." Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000). A writ of mandamus is an extraordinary remedy available only when there is: "(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).

879 So.2d 544

Discussion

Coach Nall and Coach Faulk claim that they are entitled to State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000), because, they say, in formulating and conducting the baseball practice they were exercising judgment in educating students. In Cranman, a plurality of this Court purported to restate the rule governing State-agent immunity:

"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

"(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation

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