Taylor v. Shoemaker

• Decision Date: 11 September 1992
• Citation: 605 So.2d 828
• Parties: Millicent B. TAYLOR, et al. v. Billy S. SHOEMAKER, et al. Billy S. SHOEMAKER, et al. v. Millicent B. TAYLOR, et al. 1901748, 1901804.
• Court: Alabama Supreme Court

Page 828

605 So.2d 828

Millicent B. TAYLOR, et al. v. Billy S. SHOEMAKER, et al.

Billy S. SHOEMAKER, et al. v. Millicent B. TAYLOR, et al.

1901748, 1901804.

Supreme Court of Alabama.

Sept. 11, 1992.

Stanley E. Munsey of Munsey, Ford & Heflin, Tuscumbia, for appellants/cross-appellees.

Jerry L. Weidler, Counsel, State of Ala. Highway Dept., Montgomery, for appellees/cross-appellants.

James H. Evans, Atty. Gen., and Robert M. Weinberg, Asst. Atty. Gen., for amici curiae Atty. Gen. and State Departments, Boards & Agencies.

Kendrick E. Webb and Bart Harmon of Webb, Crumpton, McGregor, Davis & Alley, Montgomery, for amicus curiae Ala. Sheriffs' Ass'n.

Mark Williams, Montgomery, for amicus curiae Ala. State Employees Ass'n.

ON APPLICATION FOR REHEARING

MADDOX, Justice.

The original opinion released in this case on January 24, 1992, in which a majority of the Justices on this Court determined that the defendant State Highway Department officials were not immune from suit because they were not engaged in a discretionary function, is withdrawn, and the following opinion is substituted in lieu thereof.

Millicent B. Taylor was driving an automobile along U.S. Highway 72 in Colbert County, Alabama. Her minor daughter, Laura, was a passenger in the car. A truck suddenly pulled into Ms. Taylor's lane, causing her to swerve and lose control of the car. Ms. Taylor's car collided with railroad rails that had been imbedded in concrete and that extended several feet vertically into the air to protect a railroad crossing signal located near the entrance to Vulcan Materials Company's plant. The driver of the truck did not stop and has not been located. Ms. Taylor and Laura received severe injuries. Ms. Taylor; Laura, by and through her father and next friend, James L. Taylor; and James L. Taylor, individually, sued Vulcan Materials Company and Southern Railway Company. The plaintiffs also joined Billy S. Shoemaker, James Lamon, and Arlond T. Scott, all of whom are employees of the Alabama Highway Department, as defendants. Shoemaker, Lamon, and Scott moved for a summary judgment on the grounds that there was no genuine issue as to any material fact and that they were entitled to a judgment as a matter of law because, they argued, they are immune from personal liability under the doctrine of discretionary function immunity. The trial court entered a summary judgment for those three defendants and made that judgment final under Rule 54(b), Ala.R.Civ.P. The plaintiffs appealed. Shoemaker, Lamon, and Scott cross-appealed, contending that the trial court erred by failing to specifically base the summary judgment on the ground that they were immune from tort liability. They contend that they were immune because, they say, at the times of the alleged negligent acts or omissions with which they were charged, they were acting within the general scope of their responsibilities and were engaged in the exercise of discretionary functions.

In their complaint, the plaintiffs alleged that Shoemaker, Lamon, and Scott negligently allowed the placement, installation, or erection of the railroad crossing signal and the rails that protected the signal. The undisputed evidence shows that the signal was installed in 1975 by Signal Systems Company; that the rails protecting the signal were installed by employees of Vulcan Materials Company in 1977 or 1978; and that Shoemaker, Lamon, and Scott assumed their positions with the Highway Department after the signal and the rails protecting the signal had been erected and while they were in place. The summary judgment was appropriate as to this aspect of the complaint.

The plaintiffs further alleged that Shoemaker, Lamon, and Scott negligently failed to remove the railroad crossing signal and the rails after the railroad spur line had been discontinued and the signal was no longer necessary. The accident occurred in 1988; Shoemaker had been division engineer since 1980; Lamon had been district engineer since 1983; and Scott had been highway superintendent since 1986.

The plaintiffs recognize that § 14 of the Constitution of Alabama of 1901 ("the State of Alabama shall never be made a defendant in any court of law or equity") extends immunity to state officers and employees acting within their official capacities, but contend that a tortious act by a state officer or employee removes such an officer or employee from this immunity. They cite Finnell v. Pitts, 222 Ala. 290, 132 So. 2 (1930). By a four-to-three vote, this Court held in that case:

"We also think that this suit does not violate the constitutional prohibition against suing the state. For though the state cannot be sued (section 14, Constitution), its immunity from suit does not relieve the officers of the state from their responsibility for an illegal trespass or tort on the rights of an individual, even though they act pursuant to authority attempted to be conferred by the state. For when the state officers take private property though they apply it to a public use, a tort has been committed by them. Private property rights have been thereby unlawfully disturbed by them. We believe that the rule is universal that an agent is not excused from personal liability for a tort which he commits for and in the name of his principal, whether the principal is liable to suit or not.

"The decisions of this court and the authorities generally apply that principle to torts committed by state officers in the name of the state and on account of the state's public affairs. An individual cannot justify a tort on a contention that it is for the state, if the state had no such right. If the state had the right, then its officers, acting by its authority, were justified. The officers cannot be justified upon a mistaken notion of state authority. An inadvertent tort-feasor is such, though he may not be liable to the amount of damages as a willful tort-feasor would be. The question now being discussed is not the extent of liability, but the fact of liability vel non. If in the promotion of the state's business its officers without authority of law apply private property to the state's enterprises, they are guilty of the same nature of wrong, as if they were acting as agents of a private corporation. The wrong is that of the officers personally as well as that of their principal. The officers are sued, not because the state has committed a wrong, but because they personally, though acting as officers, have done so. When a person commits a tort, it is wholly immaterial upon the question of his liability, whether he was acting officially or personally."

222 Ala. at 292-93, 132 So. at 4-5. (Citations omitted.)

The holding by a majority of this Court in Finnell v. Pitts should be read in light of later cases decided by this Court involving the immunity of public officers. The law of this State is that there is immunity when the state officer or employee has not exceeded his or her authority, but has merely negligently performed a statutory duty while acting pursuant to statutory authority. Gill v. Sewell, 356 So.2d 1196 (Ala.1978). Likewise, consistent with Restatement (Second) of Torts, § 895D, "Public Officers" (1974), there is immunity when the state officer or employee commits a tort while engaged in the exercise of a discretionary function. Sellers v. Thompson, 452 So.2d 460 (Ala.1984). Consequently, any statements made in Finnell v. Pitts, supra, and Elmore v. Fields, 153 Ala. 345, 45 So. 66 (1907) (the only Alabama authority on which the majority of this Court relied in Finnell ), regarding the application of the qualified immunity defense should be considered in light of these later holdings.

The specific issue presented in this case is whether Shoemaker, Lamon, and Scott are immune from suit because they were engaged in a discretionary function. The plaintiffs contend, as the majority of this Court held in its original opinion, that there was substantial evidence that the conduct of Shoemaker, Lamon, and Scott violated clearly established statutory rights of which a reasonable person would have known. They argue that it was mandatory that the railroad crossing signal support be of a suitable breakaway or yielding design, as required by specific Highway Department regulations and procedures, and that a jury should be permitted to determine whether they were, in fact, negligent in the performance of their duties. ¹ The plaintiffs say that the evidence shows that for more than eight years preceding the accident made the basis of this suit, the railroad crossing signal was surrounded by rails that did not break away and would not yield; that the evidence shows that Shoemaker, Lamon, and Scott knew of these rails; that it could be reasonably inferred that they knew that rails used to support the weight of trains would not break away or yield when hit by an automobile; and that this constituted an extremely dangerous condition that could cause serious harm to motorists. We do not think that the evidence presented here would subject the defendant state officials to tort liability.

The law of this State is clear that the State cannot be sued. Section 14 of the Alabama Constitution specifically so provides. Immunity also exists for a state officer or employee who has not exceeded his or her authority, but has merely negligently performed a statutory duty while acting pursuant to statutory authority. Gill v. Sewell, 356 So.2d 1196 (Ala.1978). Likewise, consistent with the principle stated in Restatement (Second) of Torts, § 895D, "Public Officers" (1974), there is immunity when the state officer or employee commits a tort while engaged in the exercise of a discretionary function. Sellers v. Thompson, 452 So.2d 460 (Ala.1984). In Phillips v. Thomas, 555 So.2d 81, 84 (Ala.1989), Chief Justice Hornsby, writing for the Court, stated:

"This Court has adopted the tort liability rule for public officers found in Restatement (Second) of Torts, which...