McCain v. City of Jasper (In re Gilland)

• Decision Date: 28 September 2018
• Docket Number: 1170642
• Citation: 274 So.3d 976
• Parties: EX PARTE Teresa GILLAND (In re: Diane K. McCain v. City of Jasper, Alabama, et al.)
• Court: Alabama Supreme Court

274 So.3d 976

EX PARTE Teresa GILLAND(In re: Diane K. McCain

v.City of Jasper, Alabama, et al.)

1170642

Supreme Court of Alabama.

September 28, 2018

David J. Canupp and J. Brad Emmons of Lanier Ford Shaver & Payne, P.C., Huntsville, for petitioner.

Charles C. Tatum, Jr., and Seth L. Diamond, Jasper, for respondent.

BRYAN, Justice.

Teresa Gilland petitions this Court for a writ of mandamus directing the Walker Circuit Court ("the trial court") to grant her motion to dismiss the claims filed against her by Diane K. McCain on the basis of State-agent immunity. For the reasons set forth herein, we grant the petition and issue the writ.

Facts and Procedural History

On May 29, 2015, McCain, a resident of Jasper, was attacked and bitten by a German Shepherd dog owned by her neighbor, Robert Barton. On January 4, 2017, McCain sued Barton; the City of Jasper ("the City"); Sonny Posey, then mayor of the City; Joe Matthews, director of the City's Public Works Department; Russell Smallwood, superintendent of the City's Street Department; and Gilland, an animal-control officer employed by the City. McCain's complaint set forth the following factual allegations:

"11. Barton is a former police officer of the City of Jasper and was the owner of a German Shepherd dog (hereinafter ‘the Dog’) that attacked [McCain] and her pet on the date complained of herein.

"12. Barton regularly kept [the Dog] outside tied to the back patio of his home, unmuzzled, and without a kennel or perimeter fence to prevent his escape.

"13. The chain used by Barton, however, was inadequate to keep the [D]og tethered and secured. The Dog would frequently escape running unleashed and unattended throughout the streets terrorizing the neighborhood.

"14. At all times pertinent, McCain lived on the same street as Barton and was Barton's next door neighbor.

"15. For years McCain and her neighbors would call the City of Jasper and complain about [the Dog] running wild through the streets terrorizing and frightening them by attempting to attack them and their pets.

"16. McCain and her neighbors lived in constant fear of [the Dog], making it nearly impossible for them to safely leave their homes and enjoy being outside without having to be on a constant lookout for the Dog.

"17. When the Dog was loose, McCain and her neighbors would call the City of Jasper for help. The City would come out and capture the [D]og, only to release and return the [D]og to Barton.

"18. On occasion, the [D]og attempted to bite the animal control worker, when she turned her back on the [D]og nipping her on the hand.

"19. The [D]og also attacked McCain's [other] neighbor, on two occasions. On the second occasion the [D]og jumped on the neighbor's back, clawing and scratching her while trying to maul and attack her neighbor's dog.

"20. Barton was aware [the Dog] was known to frequently escape, run-at-large, and terrorize his neighbors.

"21. Barton was told by Animal Control that he had to keep [the Dog] tethered and secure or it will hurt someone.

"22. Yet Barton failed to heed their warnings and failed to take sufficient action to contain and confine [the Dog] or protect McCain and her neighbors from being hurt by the [D]og.

"23. For at least two years, McCain repeatedly called the City of Jasper and reported [the Dog] had escaped and was terrorizing her, her neighbors, and their pets.

"24. McCain lived in constant fear of [the Dog], for her own safety and that of her beloved pet dog named Skipper.

"25. McCain could no longer enjoy going outside and taking walks with Skipper without being filled with intense fear at the first sight of [the Dog] charging after her and Skipper, causing her to race back inside for safety.

"26. One occasion while McCain was walking her dog, Skipper, in her back yard, [the Dog] pounced on Skipper, biting him until he bled before letting go.

"27. McCain reported the incident to the City of Jasper and was told that until [the Dog] bit a person they would do nothing to help.

"28. During the spring of 2015, after [the Dog] had escaped several times, Theresa Gilland, the City of Jasper Animal Control Officer, responded to the area and captured the [D]og.

"29. After capturing the [D]og, Gilland's supervisor, Russell Smallwood, told Gilland not to impound [the Dog] because they had no space at the shelter for biting and dangerous dogs.

"30. Gilland told Smallwood that the dog needed to be taken in and put down because it was dangerous and vicious and was going to hurt someone.

"31. Despite this warning by Gilland, Smallwood insisted that Gilland release the Dog.

"32. Having no authority to disobey Smallwood's demand, Gilland released the Dog.

"33. Even though Gilland appeared afraid of [the Dog], she informed McCain that she was instructed to turn the Dog loose and there was nothing she could do to help.

"34. Shortly afterwards, on May 29, 2015, while walking Skipper on a leash in her own front yard, [the Dog] had escaped again and came barreling onto McCain's property charging at her and her dog Skipper. [The Dog] viciously attacked Skipper, biting and shaking him with its powerful and deadly jaws.

"35. As McCain watched and listened to her pet and companion scream and yelp from this vicious attack, McCain pulled the leash with all her might to free Skipper from the grip of [the Dog's] mashing teeth when suddenly [the Dog] turned and attacked her.

"36. The Dog's teeth sunk into the flesh of McCain's upper arm. The Dog bit and thrashed McCain like [a] rag doll and forcing her to the ground and into a drainage ditch.

"37. McCain was in excruciating pain as she watched [the Dog] rip and tear the flesh from her arm.

"38. Despite being in shock from this vicious attack, McCain was somehow able to reach into her pocket with her other arm and spray [the Dog] with mace.

"39. After what seemed like an eternity, [the Dog] let go of McCain's threshed and ragged [sic] and ran-off.

"40. As McCain lay there trying to comfort her whimpering and dying pet and companion, she herself screamed and cried in agony and pain until being overcome and losing consciousness.

"41. Upon being revived, McCain found herself being transported by ambulance first to Walker Baptist Hospital and then to the UAB Trauma Center. She knew that her dog was dead, although no one told her.

"42. As a result of the Dog's attack, McCain ... remained hospitalized for weeks and underwent multiple reconstructive surgeries and physical therapy to repair the extensive injuries to her arm.

"43. McCain is permanently scarred, disfigured, and still suffers from pain due to the damage which serves as a constant reminder of the horror she experienced.

"44. As for McCain's pet and companion, Skipper, [the Dog] killed Skipper as a result of this brutal attack, adding unmeasurably to the suffering and misery inflicted upon ... McCain.

"45. When the police responded to the scene, they followed the [D]og back to Barton's house and shot it, dead when the [D]og charged at one of the police officers."

Based on those allegations, McCain asserted negligence and wantonness claims against Gilland for Gilland's alleged breach of "a duty to ... enforce animal control policies designed to protect the public from dogs running at large."¹

On June 12, 2017, Gilland, asserting State-agent immunity, filed a motion to dismiss McCain's claims against her. According to Gilland, she is entitled to State-agent immunity because, she said, the allegations in McCain's complaint indicate that, at all pertinent times, Gilland was acting in compliance with the City's Code of Ordinances ("the Code") and with the instructions Smallwood, her supervisor, gave her. Specifically, Gilland relied on Chapter 4, Article III, of the Code, which prescribes, among other duties, the duties imposed on the City's animal-control officers with respect to dogs found to be unlawfully at-large within the municipal limits of the City. According to Gilland, § 4-48 of the Code provides that, "when a dog running at large is seized by an animal control officer, the dog may be returned to the owner ‘in the discretion of the officer’ based on ‘consideration of the facts surrounding the running at large and the available space within the city's animal shelter.’ " Thus, Gilland argued, the allegations in McCain's complaint indicate that Gilland was acting in compliance with both § 4-48 and her supervisor's instructions when she returned Barton's dog, and, as a result, Gilland argued, she is entitled to State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala. 2000).

In response to Gilland's motion, McCain argued that Gilland was not entitled to State-agent immunity because, McCain said, § 4-23 of the Code required Gilland to impound Barton's dog after seizing it on May 29, 2015, and, McCain alleged, in failing to impound Barton's dog, Gilland was acting willfully, maliciously, fraudulently, in bad faith, or beyond her authority. See Cranman, 792 So.2d at 405. In reply to McCain's response, Gilland argued that McCain had "misread the relevant ordinances" and contended that, although the Code requires an animal-control officer to seize any dog found to be unlawfully at-large within the municipal limits of the City, the Code also "plainly grants the animal control officer a great degree of discretion in determining whether a dog -– even a ‘vicious’ one -– should be ... impounded, confined, or returned to its owner." Gilland also argued that McCain's allegation that Gilland had acted willfully, maliciously, fraudulently, in bad faith, or beyond her authority was "belied by the very allegations of [McCain's] complaint."

On February 28, 2018, the trial court, without stating its reasons for doing so, denied Gilland's motion to dismiss. Gilland subsequently petitioned this Court for a writ of mandamus.

Standard of Review

" ‘A writ of mandamus is a

" ‘ " ‘drastic and extraordinary writ that 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

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