Frank v. Shavers (In re City of Montgomery)

• Decision Date: 31 August 2018
• Docket Number: 1170103
• Citation: 272 So.3d 155
• Parties: EX PARTE CITY OF MONTGOMERY and Charday P. Shavers (In re Carlishia Frank v. Charday P. Shavers, Individually and in Her Official Capacity, and the City of Montgomery, a Municipal Corporation)
• Court: Alabama Supreme Court

272 So.3d 155

EX PARTE CITY OF MONTGOMERY and Charday P. Shavers(In re Carlishia Frank

v.Charday P. Shavers, Individually and in Her Official Capacity, and the City of Montgomery, a Municipal Corporation)

1170103

Supreme Court of Alabama.

August 31, 2018

Stephanie Smithee, City of Montgomery Attorney's Office, Montgomery, for petitioners.

Jeffrey G. Hunter of Floyd, Hunter, Kies & White, P.C., Millbrook, for respondent.

MENDHEIM, Justice.

Police officer Charday P. Shavers and the City of Montgomery ("City") petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying Shavers and the City's joint motion for a summary judgment in a tort action filed against them by Carlishia Frank and to enter a summary judgment for them. We grant the petition and issue the writ.

I. Facts and Procedural History

On November 15, 2013, Shavers was driving her patrol car west on Hitching Post Lane when she received a dispatch about a vehicular accident. Thereafter, she stopped her patrol car on Hitching Post Lane at the traffic light at the intersection of that road and Eastern Boulevard. While stopped at the intersection, Shavers received a dispatch update that the accident involved a pregnant woman and that the other driver was trying to flee the scene.

In order to proceed through the intersection, Shavers had to cross four northbound lanes on Eastern Boulevard (including the left-turn lane) to travel south on Eastern Boulevard. The dashboard-camera in Shavers's patrol car indicates that, after receiving the dispatch update, Shavers activated the emergency lights on her patrol car. Between three and four seconds later, Shavers activated the siren. During that interval, Shavers waited for the northbound vehicles that had entered the intersection to pass through the intersection. Approximately one second after Shavers activated the siren, another northbound vehicle that had entered the intersection proceeded through the intersection.

Before Shavers's patrol car entered the intersection, the other vehicles traveling in the two northbound lanes closest to Shavers came to a complete stop. According to Shavers's deposition testimony, she believed the third lane (the lane farthest from her, excluding the turn lane) was clear, though Shavers admitted that her view of that lane was blocked by the vehicles stopped in the other two northbound lanes. As Shavers's patrol car began to cross the third lane, Frank's vehicle entered the intersection and collided with the driver's side of Shavers's patrol car. The collision occurred between four and five seconds after Shavers began slowly proceeding into the intersection, approximately nine seconds after Shavers had activated her emergency lights and approximately five seconds after she had activated her siren.

It is undisputed that the traffic light regulating Frank's lane of traffic was green and that the traffic light regulating Shavers's lane was red. The Alabama Uniform Traffic Crash Report ("AUTCR") for the collision, which was prepared by an investigating officer for the City, indicates that Frank's vehicle was traveling at a speed of approximately 35 miles per hour when her vehicle collided with Shavers's patrol car. According to Shavers's deposition testimony, "[t]here [were] quite a few" vehicles stopped in the two lanes of northbound traffic on Eastern Boulevard when she began to proceed into the intersection. The AUTCR also includes a statement from a witness who was in a commercial truck "a good distance" behind Frank. The witness stated that, "due to vehicles in the road," Frank could not see Shavers's patrol car. Frank testified in her deposition that she first noticed Shavers's patrol car "when the accident happened" and that she did not see the stopped vehicles in the other two northbound lanes of Eastern Boulevard or the emergency lights on Shavers's patrol car. Shavers admitted in her deposition testimony that she had violated her training by proceeding into the intersection without knowing that the traffic in the third lane had stopped and that the City had determined she was "at fault" for the collision.

On October 26, 2015, Frank sued Shavers, in both her official capacity and her individual capacity, and the City of Montgomery in the Montgomery Circuit Court. Frank asserted two claims. The first claim alleged that Shavers was liable under theories of negligence and wantonness. The second claim alleged that the City was liable for Shavers's wrongful conduct under the theory of respondeat superior.

The City and Shavers, respectively, filed answers to Frank's complaint. The City and Shavers admitted Frank's allegation that Shavers was employed by the City at the time of the collision, and they denied all other allegations. The City and Shavers also asserted several affirmative defenses, including the defenses of State immunity and State-agent immunity.

On August 10, 2017, Shavers and the City filed a joint motion for a summary judgment, asserting that, pursuant to § 6-5-338(a), Ala. Code 1975, and Ex parte Cranman, 792 So.2d 392 (Ala. 2000), Shavers was entitled to State-agent immunity and the City was entitled to the benefit of Shavers's immunity pursuant to City of Bayou La Batre v. Robinson, 785 So.2d 1128, 1131 (Ala. 2000). Shavers and the City submitted excerpts from Shavers's deposition, the dashboard-camera video from Shavers's patrol car, and the AUTCR in support of their summary-judgment motion. Shavers and the City argued that they had met their burden of showing that Shavers's actions qualified for State-agent immunity and that the burden had shifted to Frank to show that Shavers's actions fell within one of the two exceptions to State-agent immunity discussed in Cranman. See 792 So.2d at 405.

On September 14, 2017, Frank filed her opposition to the summary-judgment motion and a brief in support. Frank contended that Shavers had not complied with § 32-5A-7 and § 32-5A-115, Ala. Code 1975, regarding emergency vehicles and, thus, that neither Shavers nor the City was entitled to immunity. Frank included a single sentence addressing a part of the second exception to State-agent immunity as discussed in Cranman: "Shavers is not entitled to immunity because she acted beyond her authority."

On October 2, 2017, the circuit court entered an order denying Shavers and the City's joint motion for a summary judgment.

Shavers and the City timely filed a petition for a writ of mandamus.

II. 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)."

Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003). Also,

"whether review of the denial of a summary-judgment motion is by a petition for a writ of mandamus or by permissive appeal, the appellate court's standard of review remains the same. If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the moving party is not entitled to a summary judgment. Rule 56, Ala. R. Civ. P. In determining whether there is a [genuine issue of] material fact on the question whether the movant is entitled to immunity, courts, both trial and appellate, must view the record in the light most favorable to the nonmoving party, accord the nonmoving party all reasonable favorable inferences from the evidence, and resolve all reasonable doubts against the moving party, considering only the evidence before the trial court at the time it denied the motion for a summary judgment. Ex parte Rizk, 791 So.2d 911, 912 (Ala. 2000)."

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

" ‘When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797–98 (Ala. 1989). Evidence is "substantial" if it is 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." Wright [v. Wright], 654 So.2d [542,] 543 [ (Ala. 1995) ] (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989) ).’ "

Wilson v. Manning, 880 So.2d 1101, 1102 (Ala. 2003) (quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala. 1997) ).

III. Analysis

Shavers and the City contend that the circuit court erred in denying their joint motion for a summary judgment because, they say, pursuant to Cranman and § 6-5-338, Shavers is entitled to State-agent immunity, and the City is afforded the benefit of Shavers's immunity. Shavers and the City also argue that there is no evidence indicating that Shavers "acted willfully, maliciously, fraudulently, in bad faith, or beyond her authority; and [that,] absent such a showing, she is entitled to immunity." Petition, at p. 10. We agree.

Section 6-5-338(a), Ala. Code 1975, states:

"Every peace officer ... who is employed or appointed pursuant to the Constitution or statutes of this state, whether appointed or employed as a peace officer ... by the state or a county or municipality thereof, ... and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute

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