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Norris v. City of Montgomery8/31/2001
hields "the State of Alabama and its officers and political subdivisions" from suit. Williams v. Crook, 741 So. 2d 1074, 1076 (Ala. 1999) (emphasis added). However, " hat constitutional immunity does not extend to municipalities." Id. (Emphasis added.) Thus, the City defendants' first argument has no merit.
They next contend that they are entitled to immunity under Ala. Code 1975, § 6-5-338(a), which provides:
"(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." (Emphasis added.)
Thus, this statute shields police officers from tort liability for discretionary acts performed "within the line and scope of [their] law enforcement duties." Id.; Williams, 741 So. 2d at 1076. "Alabama law has defined 'discretionary acts' as '" hose acts [as to which] there is no hard and fast rule as to course of conduct that one must or must not take" and those requiring "exercise in judgment and choice and [involving] what is just and proper under the circumstances."'" Montgomery v. City of Montgomery, 732 So. 2d 305, 310 (Ala. Civ. App. 1999) (emphasis added). " nder the distinction between ministerial and discretionary functions, 'the official is immune only where that which he does in the performance of his lawful duties requires "personal deliberation, decision and judgment."'" White v. Birchfield, 582 So. 2d 1085, 1087 (Ala. 1991). The Norrises contend that § 6-5-338 does not apply to Officer Perkins's failure to impound Perkins's vehicle, because, they insist, the Act imposed upon Officer Perkins a mandatory, non-discretionary duty to impound Perkins's vehicle. This claim is essentially one of "statutory negligence."
I. Statutory Negligence
To succeed on a claim of "statutory negligence" against a municipality, a plaintiff must first show the existence of a statute creating a mandatory duty to perform. The plaintiff must also demonstrate that he or she is among the class of persons the "statute was enacted to protect"; that the injuries were "of a type contemplated by the statute"; that the defendant "violated the statute"; and that the plaintiff's injuries proximately resulted from the violation. Thetford v. City of Clanton, 605 So. 2d 835, 841-42 (Ala. 1992). Where these elements exist, discretionary-function immunity will not shield the actors or their supervisors from liability. This is so because the statute itself removes the discretion on which the immunity is based.
The dispute in Thetford -- in which this rule was applied -- began when City of Clanton police officer Randy Morris investigated a report of domestic violence at the home of Michael and Shir
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