Phillips v. Thomas

Decision Date21 July 1989
PartiesBilly A. PHILLIPS; Bonnie Phillips; and Derrick Phillips, who sues By and Through his parents and next friends, Billy A. Phillips and Bonnie Phillips v. Debbie C. THOMAS and Louise R. Pittman. 87-1528.
CourtAlabama Supreme Court

HORNSBY, Chief Justice.

The original opinion is withdrawn and the following opinion is substituted therefor.

This is a sovereign immunity case which involves a negligence action filed by Bonnie and Billy Phillips, in their own right and on behalf of their 13-month-old son Derrick Phillips, against various defendants, including the appellees, Debbie C. Thomas and Louise R. Pittman. The plaintiffs allege that on March 6, 1986, Derrick Phillips wandered from the playground area of the Jack and Jill Nursery and Day Care Center and fell into water that had collected on a covering over a swimming pool located on the opposite side of the day care center. The plaintiffs further allege that Derrick Phillips suffered serious personal injury as a result of the accident.

At the time of the accident, both Thomas and Pittman were state employees working with the Alabama Department of Human Resources. Thomas was assigned to the Office of Day Care, and Pittman served as the director of the Family and Children's Services Division of the Department. The plaintiffs allege that Thomas and Pittman negligently performed their official duties and thereby caused the injuries suffered by Derrick Phillips.

On April 21, 1988, the trial court issued an order dismissing Pittman and entered a judgment on the pleadings for Thomas, on the basis of sovereign immunity under Article I, § 14, Alabama Constitution of 1901. Final judgment was entered as to Pittman and Thomas on October 20, 1988, pursuant to Rule 54(b), Ala.R.Civ.P. This appeal followed.

The ultimate question is whether the trial court erred in granting Pittman's motion to dismiss and Thomas's motion for judgment on the pleadings on the basis of sovereign immunity as provided by Article I, § 14, Alabama Constitution of 1901. This question is answered through the resolution of two subissues: 1) whether the plaintiffs' suit against the appellees is, in effect, one against the State, thus affording the appellees absolute immunity from suit; and, if not, then 2) whether the appellees are entitled to substantive or qualified immunity from the plaintiffs' claim because they were engaged in the exercise of a discretionary public function.

I. When Sovereign Immunity is not Available. We first consider whether the appellees are entitled to sovereign immunity of any kind. This Court has recognized that a state officer or employee may not escape individual tort liability by " 'arguing that his mere status as a state official cloaks him with the state's constitutional immunity.' " Barnes v. Dale, 530 So.2d 770, 781 (Ala.1988) (quoting Tort Liability of State Officials in Alabama, 35 Ala.L.Rev. 153 (1984).) Clearly, 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. See Lumpkin v. Cofield, 536 So.2d 62, 65 (Ala.1988); Barnes, 530 So.2d at 782; DeStafney v. University of Alabama, 413 So.2d 391, 393 (Ala.1981); Gill v. Sewell, 356 So.2d 1196, 1198 (Ala.1978); Unzicker v. State, 346 So.2d 931, 933 (Ala.1977); and St. Clair County v. Town of Riverside, 272 Ala. 294, 296, 128 So.2d 333, 334 (1961). In addition, a state official is not immune from a suit to compel the performance of a legal duty, a suit to enjoin the enforcement of an unconstitutional law, a suit to compel the performance of a ministerial act, or a suit brought under the Declaratory Judgment Act. See DeStafney, 413 So.2d at 393 (citing Aland v. Graham, 287 Ala. 226, 229, 250 So.2d 677, 679 (1971)); Gill, 356 So.2d at 1198; and Milton v. Espey, 356 So.2d 1201, 1203 (Ala.1978). Because such circumstances are not presented in this case, we move to our discussion of absolute immunity.

II. Absolute Immunity. Article I, § 14, Alabama Constitution of 1901, is the basis for sovereign immunity in this State, and that section provides that "the State of Alabama shall never be made a defendant in any court of law or equity." Under this provision, the State and its agencies have absolute immunity from suit in any court. Barnes, 530 So.2d at 781; Hickman v. Dothan City Bd. of Educ., 421 So.2d 1257, 1258 (Ala.1982); Gill, 356 So.2d at 1198; and Milton, 356 So.2d at 1202. State officers and employees, in their official capacities and individually, also are absolutely immune from suit when the action is, in effect, one against the State. Barnes, 530 So.2d at 781; DeStafney, 413 So.2d at 393; Gill, 356 So.2d at 1198; and Milton, 356 So.2d at 1202. In determining whether an action against a state officer or employee is, in fact, one against the State, this Court will consider such factors as the nature of the action and the relief sought. See DeStafney, 413 So.2d at 395; and Milton, 356 So.2d at 1202. In addition, we have recognized the following rules with respect to absolute immunity in a negligence action to recover for personal injury, like that filed by the plaintiffs in this case:

" '[A] claim for personal injury based upon the alleged negligent conduct of a State employee, even when committed in the line and scope of employment, is not within the ambit of § 14's protection. Such a claim, by virtue of its nature and the relief demanded, in no way seeks to circumvent the prohibition of § 14. Any state interest affected by the suit is far too incidental to supply the requisite nexus for extension of constitutional immunity to the individual employee defendant.' "

Barnes, 530 So.2d at 783 (quoting DeStafney, 413 So.2d at 395). There can be no question under the holdings of Barnes and DeStafney that the nature of the present action and the relief sought herein are not the kind that would afford either Pittman or Thomas absolute immunity from suit. Thus, we move to the question of whether the appellees are entitled to qualified or substantive immunity.

III. Substantive Immunity. Qualified or substantive immunity is available to a state officer or employee acting within the general scope of his authority, but only when certain circumstances are present. "[W]hether a particular defendant is engaged in a protected discretionary function and is thereby immune from liability for injuries he causes is a question of law to be decided by the trial court." Grant v. Davis, 537 So.2d 7, 8 (Ala.1988).

This Court has adopted the tort liability rule for public officers found in Restatement (Second) of Torts, which provides as follows:

"(1) Except as provided in this Section a public officer is not immune from tort liability.

"(2) A public officer acting within the general scope of his authority is immune from tort liability for an act or omission involving the exercise of a judicial or legislative function.

"(3) A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if

"(a) he is immune because engaged in the exercise of a discretionary function,

"(b) he is privileged and does not exceed or abuse the privilege, or

"(c) his conduct was not tortious because he was not negligent in the performance of his responsibility."

Restatement, § 895D, "Public Officers" (1977) (emphasis added); see also Barnes, 530 So.2d at 783; and DeStafney, 413 So.2d at 393. In determining what is a discretionary function, we have recognized certain factors that may be considered, including the following:

" the nature and importance of the function that the officer is performing; the extent to which passing judgment on the exercise of discretion will amount necessarily to passing judgment on the conduct of a coordinate branch of government; the extent to which the imposition of liability would impair the free exercise of discretion by the officer; the extent to which the ultimate financial responsibility will fall on the officer; the likelihood that harm will result to members of the public if the action is taken; the nature and seriousness of the type of harm that may be produced; and the availability to the injured party of other remedies and other forms of relief."

Barnes, 530 So.2d at 784 (citing the Restatement, § 895D, comment f).

In the present case, the plaintiffs allege that Pittman and Thomas were negligent in licensing the day care center at which Derrick Phillips was injured, that Thomas was also negligent in her inspection of the facility, and that Pittman was negligent in her training and supervision of Thomas. 1 We must now determine whether these functions were discretionary in nature. In doing so, we refer, once again, to our prior decisions in Barnes, DeStafney, and Gill.

In Barnes, 530 So.2d 770 (Ala.1988), this Court held, as a matter of law, that the defendant employees of a state mental hospital were immune from suit for wrongful death resulting from the alleged negligent treatment and release of a patient because they were engaged in the exercise of a discretionary public function at the time of the patient's admission and discharge. Similarly, in Gill, 356 So.2d 1196 (Ala.1978), we held that the director of a work release center was immune from suit for his decision to release a convicted felon who subsequently shot a police officer. On the other hand, in DeStafney, 413 So.2d 391 (Ala.1981), we held that a state day care employee was not immune from suit for her alleged negligence in allowing a child to fall from playground equipment while in her care. In DeStafney, we reasoned that the defendant's duty was one of due care and was not one...

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