Ex parte Purvis

• Decision Date: 06 December 1996
• Court: Alabama Supreme Court
• Parties: Ex parte Thomas J. PURVIS. Ex parte Allan SCOTT. (Re Donna AKERS and Mark Hankins Akers v. MOBILE COUNTY, et al.). 1951352, 1951361.

Page 794

689 So.2d 794

Ex parte Thomas J. PURVIS Ex parte Allan SCOTT (Re Donna AKERS and Mark Hankins Akers v. MOBILE COUNTY, et al.).

1951352, 1951361.

Supreme Court of Alabama.

Dec. 6, 1996.

Rehearing Denied Feb. 21, 1997.

Wade B. Perry, Jr., and Tracy P. Turner of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for defendant/petitioner Allan Scott and for defendants Mobile County and Mobile County Sheriff's Office.

Roderick P. Stout and W. Perry Hall of Stout & Rossler, Mobile, for Thomas J. Purvis.

James A. Yance, David G. Wirtes, Jr., and Kelli D. Taylor of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for plaintiffs/respondents.

MADDOX, Justice.

There is but one legal question presented in these mandamus petitions filed by former Mobile County Sheriff Thomas J. Purvis and former Deputy Sheriff Allan Scott: Are they immune from liability in an action filed by a woman who was shot by a fugitive who had avoided capture?

The facts are not seriously disputed. On June 28, 1994, Jimmie Whitt shot and killed a Mississippi law enforcement officer. A BOLO ("be on the lookout") radio message was broadcast and was received by Alabama law enforcement officers in and around Mobile. The BOLO message gave a Mobile address as the last known address of Whitt. At that time, Mobile County sheriff's deputy Allen Scott was responsible for serving civil process in and around Mobile. After hearing the BOLO, he approached the residence mentioned in the BOLO, under the pretense of serving process on Jimmie Whitt. Whitt met Scott at the door, but Scott did not try to arrest Whitt. Instead, Scott returned to his patrol car, ostensibly to maintain Whitt "in custody" and to report his contact to his dispatcher. Whitt later escaped from the house through the back door, hijacked a car, and fled from Mobile County into Baldwin County, where he shot and killed an enforcement officer of a state agency.

Whitt later went to Bay Minette, where he attacked Donna Akers while she sat in her automobile with her mother and daughter at a McDonald's restaurant drive-through line. Mrs. Akers was shot in the head and suffered severe permanent injuries. She sued Sheriff Purvis and Deputy Scott, claiming that both were responsible for implementing and enforcing appropriate policies and procedures for approaching, detaining, and apprehending dangerous fugitives; that they had failed to carry out their duties; and that their failure had proximately caused her injuries. Mrs. Akers's husband, Mark Hankins Akers also sued, alleging a loss of consortium.

In response to a motion to dismiss, the trial court entered an order on April 18, 1996, dismissing four counts of the first amended complaint, which sounded in negligence and wantonness. However, citing Spring Hill Lighting & Supply Co. v. Square D Co., 662 So.2d 1141 (Ala.1995), the court refused to dismiss counts five, six, seven, and eight, which allege willful conduct by Sheriff Purvis and Deputy Scott. ¹

Defendants Purvis and Scott both have petitioned for a writ of mandamus directing the trial court to grant their motions to dismiss the remaining counts of the plaintiffs' complaint. They argue in their petitions that they are entitled to sovereign immunity as to those counts. The plaintiffs have moved to dismiss Purvis and Scott's petitions, arguing that the trial court correctly held that sovereign immunity did not apply to the claims of willful conduct, and that mandamus is not the appropriate remedy for reviewing the trial court's ruling, citing this Court's decision in Ex parte Franklin County Department of Human Resources, 674 So.2d 1277 (Ala.1996).

We first address the Akerses' claims that a mandamus petition is not the appropriate method for seeking review of the trial court's action. Purvis and Scott asked the trial court to give the certification required by Rule 5, Ala. R.App. P., that would have allowed them to pursue an interlocutory appeal of the order denying their motions to dismiss, but the court did not do so. However, on our initial review of the mandamus petitions we determined that they had sufficient merit to order the trial judge to file an answer and a brief, which he has done. We elect to review the merits of the petitions; we deny the respondents' motions to dismiss those petitions.

It is undisputed that Purvis and Scott were both acting within the line and scope of their employment when Whitt made his escape that led to the shooting of Mrs. Akers. Based on the record, we must conclude that Purvis and Scott have clearly shown that each of them is immune from suit under the provisions of Art. I, § 14, Alabama Constitution 1901.

Although we recognize that this Court, in Spring Hill Lighting did reaffirm the principle that " 'a state officer or employee is not protected by § 14 when he acts willfully, maliciously, illegally, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law,' " 662 So.2d at 1148, quoting Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989), none of the exceptions to sovereign immunity listed in Spring Hill Lighting applies here. In the first place, Spring Hill Lighting did not deal with claims against a sheriff and a deputy sheriff or other constitutional officer, but instead dealt with "intentional wrongful conduct by persons involved in the bidding process," 662 So.2d at 1147, involving state employees in the State Docks Department who allegedly intentionally rigged bid specifications to favor products provided by one manufacturer over seemingly comparable products provided by other manufacturers, in violation of the competitive bid law. Although in the present case the plaintiffs allege that Sheriff Purvis and Deputy Scott intentionally failed to follow proper procedures for approaching, detaining, and apprehending dangerous fugitives, we cannot conclude that these defendants' claims of immunity must fail. Cf. Karrick v. Johnson, 659 So.2d 77, 79 (Ala.1995) (upholding the defense as to claims for money damages, when interposed by a sheriff in a case involving allegations of malicious prosecution and false imprisonment against a deputy sheriff). In Karrick, this Court reiterated the limited circumstances in which a sheriff and a sheriff's deputy are amenable to suit, in light of Art. I, § 14, Alabama Constitution 1901. Also, see, Ex parte Franklin County Department of Human Resources, supra, which, addressing a claim for money damages against a state agency for "maliciously, willfully and/or wantonly and/or without probable cause" instituting a paternity action (674 So.2d at 1278), held such a claim to be barred under Art. I, § 14.

In Alexander v. Hatfield, 652 So.2d 1142 (Ala.1994), this Court held that a deputy sheriff is afforded the same immunity from suit as a sheriff in regard to claims for monetary damages stemming from activities performed while working in the line and scope of his or her employment.

Based on the foregoing, the petitions are due to be granted.

MOTIONS TO DISMISS PETITIONS DENIED; WRITS GRANTED.

HOOPER, C.J., and ALMON, SHORES, and COOK, JJ., concur.

HOUSTON, J., concurs specially.

HOUSTON, Justice (concurring specially).

"The wall of 'government immunity' [i.e.,...