 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Ex parte City of Gadsden7/21/2000
a), Ala. Code 1975, grants Officer Arnold immunity from tort liability arising out of his conduct in performance of any discretionary function within the line and scope of his official duties, and that § 6-5-338(b) extends that immunity to the City.
Section 6-5-338 provides, in pertinent part:
"(a) Every peace officer, ... whether appointed or employed as such peace officer by the state or a county or municipality thereof, ... 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." In Couch v. City of Sheffield, 708 So. 2d 144, 153 (Ala. 1998), this Court stated that § 6-5-338 extended discretionary-function immunity to a municipal police officer "unless the officer's conduct is so egregious as to amount to willful or malicious conduct or conduct engaged in in bad faith."
The City argues that in leaving the accident scene Officer Arnold was performing a discretionary act and that he is, therefore, immune from liability. "Qualified immunity shields employee from liability if the employee is engaged in a discretionary act, instead of a ministerial one, when the alleged tortious conduct occurs." Ex parte Alabama Dep't of Forensic Sciences, 709 So. 2d 455, 458 (Ala. 1997). McDonough argues that Officer Arnold's failure to secure the accident scene in accordance with departmental regulations amounted to negligence in performing a ministerial act; therefore, she argues, Officer Arnold was not protected by the doctrine of discretionary-function immunity. Thus, we must first determine whether Officer Arnold was engaged in performing a discretionary function or a ministerial function.
"Discretionary acts have been defined as those acts as to which there is no hard and fast rule as to the course of conduct that one must or must not take and those acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances." Wright v. Wynn, 682 So. 2d 1, 2 (Ala. 1996). However, acts taken willfully, maliciously, or in bad faith will not be considered discretionary. Id.; Couch v. City of Sheffield, 708 So. 2d 144 (Ala. 1998). "Ministerial acts," on the other hand, are those acts "done by officers and employees who are required to carry out the orders of others or to administer the law with little choice as to when, where, how, or under what circumstances their acts are to be done." Carroll v. Hammett, 744 So. 2d 906, 910 (Ala. 1999)(quoting earlier cases).
The Gadsden Police Department's "Policy and Procedure Manual" contains the following provisions:
"61.1.5 UNIFORM TRAFFIC ENFORCEMENT
"....
"C. THESE ENFORCEMENT POLICIES DO NOT SUPPLANT OFFICER JUDGMENT, FOR IT IS IMPOSSIBLE TO FORESEE EVERY CONCEIVABLE SITUATION INVOLVING TRAFFIC VIOLATIONS. IN UNUSUAL CIRCUMSTANCES, THE OFFICER MUST DECIDE WHAT ENFORCEMENT ACTION IS PROPER BASED ON A COMBINATION OF TRAINING, EXPERIENCE AND COMMON SENSE.
"....
"61.2.3 FIRST OFFICER ON THE SCENE
"A. IMMEDIATELY UPON ARRIVAL, THE FIRST OFFICER AT THE SCENE WILL CHECK FOR INJURIES, FIRE HAZARDS, HAZARDOUS MATERIALS,[ ] AND/OR HOT WIRES DOWN, AND WILL SUMMON APPROPRIATE FIRE/MEDICAL/UTILITY AND BACKUP FOR ASSISTANCE. THE OFFICER WILL PROVIDE EMERGENCY MEDICAL AID AND FIRE SUPPRESSION SERVICES UNTIL FIRE/MEDICAL PERSONNEL ARRIVE. THE OFFICER WILL ISOLATE THE HAZARD AREA, EVACUATE NON-ESSENTIAL PERSONNEL AND IDENTIFY THE VEHICLE AND
Page 1 2 3 Alabama DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|