Norris v. City of Montgomery8/31/2001
he officers do not know is intoxicated"); Nunnelee v. City of Decatur, 643 So. 2d 543 (Ala. 1993) (police officers had discretion not to arrest a driver who had, in fact, been drinking, but had passed a field-sobriety test, where officers did not know the driver was intoxicated). Indeed, the Norrises rely specifically on the legislative findings, as stated in § 2, as a surrogate for the City defendants' actual knowledge. In particular, they state: "The Safe Streets Act itself provides the necessary intent element especially when it is undisputed that ... Perkins' driver's license had been revoked for a previous DUI, and that during the preceding 28 months he had received five tickets for driving without a license from the City of Montgomery alone." Brief of Appellants, at 17 (emphasis added). In Thetford, this Court recognized a cause of action against a municipality and its law-enforcement officials for statutory negligence; it did not recognize one for statutory wantonness. Even more significantly, § 6-5-338(a), which immunizes peace officers from tort liability for conduct involving the exercise of discretion, makes no exception for wantonness.
The trial court did not err, therefore, in entering a summary judgment on the wantonness claims. As to those claims, the judgment is affirmed.
III. Claims Against Mayor Folmar
The claims against then Mayor Folmar are based on the theory of respondeat superior. However, "a municipality's chief executive is not vicariously liable for the misconduct of his or her subordinates." Newton v. Town of Columbia, 695 So. 2d 1213, 1218 (Ala. Civ. App. 1997). "Thus, even if the trial court entered the summary judgment in favor of the mayor on the ground of ... immunity, which we have concluded is not applicable in this instance, its error is harmless and not reversible, because the judgment is correct for other reasons." Id. at 1218-19.
IV. Summary
In summary, the City, Chief Wilson, and Officer Perkins are not immune from liability in negligence for the specific act of allowing Perkins to maintain control of his vehicle after the stop on August 1, 1997. In other words, the discretionary-function immunity afforded by § 6-5-338(a) does not shield them from liability in negligence for that non-discretionary act. As to the negligence claims, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Moore, C.J., and Houston , J., concur.
Lyons and Johnstone, JJ., concur in part and concur in the result in part.
LYONS, Justice (concurring in part and concurring in the result in part).
I concur as to Parts I and III of the main opinion. As to Part II, however, I concur only in the result.
I agree that the judgment in favor of the City of Montgomery, Chief Wilson, and Officer Perkins should be reversed as to the plaintiffs' negligence claims against those defendants. As to the plaintiffs' wantonness claims against Chief Wilson and Officer Perkins, I can envision circumstances in which a violation of the Safe Streets Act could occur in such a way as to constitute wanton conduct and in which a wantonness claim could be actionable. See Claude Jones & Son v. Lair, 245 Ala. 441, 17 So. 2d 577 (Ala. 1944), where this Court stated:
" hen a complaint alleges either a negligent, or a wanton or a willful, violation of a regulatory statute from which plaintiff was injured as a proximate consequence, that feature of the complaint is sufficient as a simple negligence count, th
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