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Norris v. City of Montgomery8/31/2001
his action. Cf. Williams, supra, 741 So. 2d at 1075 (the discretionary-function "'immunity from tort liability' granted by § 6-5-338(a) to the driver of an 'authorized emergency vehicle' applies only when the driver is using an audible signal meeting statutory requirements and is meeting the requirements of any law requiring that visual signals be used on emergency vehicles"); City of Birmingham v. Benson, 631 So. 2d 902, 904 (Ala. 1993) (police officer was not immune from suit for failing to provide protection, where an internal affairs investigator concluded that he had "violated rules and regulations of the department, that he had neglected his duties, that he had failed to take appropriate action").
Because discretionary-function immunity evaporates upon the violation of a statute imposing a mandatory duty, the facts of this case support a claim of statutory negligence, which is not barred by the doctrine of discretionary-function immunity. For these reasons, the trial court erred in entering a summary judgment for the City defendants (with the exception of then Mayor Folmar, as discussed in Part III of this opinion) on the claim of statutory negligence. Insofar as it did so, the judgment is reversed. However, it does not follow that the immunity defense to the Norrises' wantonness claims is subject to the same infirmity.
II. Wantonness
The theory of the Norrises' wantonness claim against the individual defendants is that they had a "practice and/or policy of ... not enforcing the Safe Streets Act, by returning automobiles to unlicensed drivers after they are stopped." Brief of Appellants, at 18 (emphasis added). Specifically, their amended complaint alleged:
"32. Defendant, [Officer] Perkins, acting individually, and/or as an officer of the State Alabama, and/or on behalf of and/or at the instruction of, Defendants, Folmar and/or Wilson, had a duty to impound the subject vehicle.
" . Instead, Defendants, [Officer] Perkins, Folmar, and/or Wilson, negligently, wantonly and/or willfully gave the vehicle to Defendant, Michael Perkins.
" . In doing so, Defendant, [Officer] Perkins, acted in accordance with the practice and/or policy of Defendants, Folmar and/or Wilson, of violating the law by returning automobiles to drivers who have been stopped and are unable to produce a valid driver's license."
The Norrises define "wantonness" as follows:
"'Wantonness is the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such an act or omission of such duty an injury will likely or probably result. Before a party can be said to be guilty of wanton conduct, it must be shown that with reckless indifference to the consequences he either consciously or intentionally did some wrongful act or consciously omitted some known duty which produced the injury.'" Brief of Appellants, at 17 (quoting Alabama Pattern (Civil) Jury Instructions, 29.00 (2d ed. 1993)).
This is a correct statement of the law, but it has no application under the facts of this case.
As we explained in Part I of this opinion, the City defendants' liability is grounded in statutory negligence. In other words, the City defendants would be immune from suit, but for the language of the Act, which specifically made impoundment non-discretionary. Were it not for the Act, the City defendants would have had some discretion in deciding whether to release Perkins to drive his vehicle. See Flint v. City of Ozark, 652 So. 2d 245, 245 (Ala. 1994) ("police officers may be held liable for failing to arrest an underage person who has been consuming alcohol, but who t
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