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Luckie v. City of Montgomery2/12/1999
accident report prepared by Griffin and the testimony of the witnesses. The accident report indicates that Luckie and Smyly were traveling in opposite directions, and that Luckie was in a 25 m.p.h. zone, while Smyly was in a 35 m.p.h. zone. Witness accounts of the accident reveal that Luckie was traveling behind Smyly, that they were headed in the same direction, and that they were in the same speed zone. The accident report also indicates that Luckie was traveling at a speed of "999" m.p.h., but there was no damage to either vehicle as a result of the collision. The accident report further indicates that there were no witnesses to the accident, although Griffin observed the accident and required Luckie and Smyly to exchange insurance information.
Griffin claims that he is immune from suit under § 6-5-338, Ala. Code 1975. That section provides, in pertinent part, as follows:
"(a) Every peace officer, except constables, who is employed or appointed pursuant to the Constitution or statutes of this state, whether appointed or employed as such peace officer by the state or a county or municipality thereof, or by an agency or institution, corporate or otherwise, created pursuant to the Constitution or laws of this state and authorized by the Constitution or laws to appoint or employ police officers or other peace officers, 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 warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state, shall at all times be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties."
"(b) This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers. No immunity is extended hereby to any private non-governmental person or entity, including any private employer of a peace officer during that officer's off-duty hours."
This section extends discretionary function immunity to municipal police officers unless the officer's conduct is so egregious as to amount to willful or malicious conduct or conduct engaged in bad faith. Couch v. City of Sheffield, 708 So. 2d 144 (Ala. 1998).
In Couch, the police officer submitted an affidavit stating that he believed he had probable cause to arrest Couch based upon Couch's demeanor and appearance. In this case, Griffin did not submit an affidavit in support of his summary judgment motion, stating that he believed that he had probable cause to arrest Luckie. Griffin's deposition testimony directly contradicts his affidavit testimony. Additionally, Griffin's affidavit testimony--that Luckie was swaying and incoherent--was contradicted by the affidavit testimony of Barnhart, Price, and Smyly.
Our supreme court has held as follows:
"'"Probable cause exists if facts and circumstances known to the arresting officer are sufficient to warrant a person of reasonable caution to believe that the suspect has committed a crime. 'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act ....' '"The substanc
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