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Ex parte City of Gadsden7/21/2000
CONTAINER PLACARDS.
"B. THE OFFICER WILL PARK THE PATROL VEHICLE IN SUCH A MANNER AS TO PROTECT THE SCENE, PRESERVE EVIDENCE AND PROTECT THE PUBLIC, ESTABLISH A SAFE TRAFFIC PATTERN AROUND THE SCENE, LOCATE WITNESSES AND RECORD ACCIDENT INFORMATION. OVERHEAD EMERGENCY LIGHTS WILL BE ACTIVATED WHILE THE ROADWAY IS BLOCKED AND A DANGER EXISTS.
"....
"61.4.2 HAZARDOUS ROADWAY CONDITIONS
"....
"C. THE FOLLOWING PROCEDURES WILL BE FOLLOWED IN IDENTIFYING, REPORTING AND CORRECTING HAZARDOUS ROADWAY, ROADSIDE, OR ENVIRONMENTAL CONDITIONS:
"1. WHEN A HAZARD IS IDENTIFIED AND IN THE OFFICER'S OPINION SUCH HAZARD REQUIRES IMMEDIATE CORRECTION, ... HE WILL IMMEDIATELY INFORM COMMUNICATIONS OF THE SITUATION AND IDENTIFY THE ASSISTANCE OR SPECIAL EQUIPMENT REQUIRED. THE OFFICER WILL PROTECT THE SCENE AND BYSTANDERS AND DIRECT TRAFFIC OR TAKE ANY OTHER ACTION DEEMED NECESSARY TO CORRECT AND/OR PROTECT THE SITUATION UNTIL ASSISTANCE ARRIVES.
"2. WHEN A HAZARD IS DETECTED THAT REPRESENTS A POTENTIAL COLLISION SITUATION, BUT THE THREAT OF SUCH IS NOT IMMINENT, THE OFFICER WILL PASS THIS INFORMATION ON TO COMMUNICATIONS FOR PROPER IDENTIFICATION. IF THE OFFICER CAN CORRECT THE SITUATION, THEY WILL TAKE APPROPRIATE ACTION." (Capitalization original; other emphasis added.)
Officer Arnold was faced with a situation for which there was no hard and fast set of rules. He could have pursued a witness who was chasing a fleeing DUI suspect, or he could have remained at the scene and protected the site until the next patrol unit arrived. In response to questions about why he did not stay at the scene of the accident until the second police car arrived, Officer Arnold testified, "I felt like the danger to an innocent bystander or witness was more immediate than what I had at the traffic-accident scene at the time." He also stated that he felt the chances that a motor vehcile would come down the road and hit the fence around 2:30 a.m. "were very slim."
Clearly, Officer Arnold's duties as a law-enforcement officer required him to make a difficult split-second decision under unusual circumstances. Because the officer's decision to pursue a suspect being followed by a witness, instead of securing a well-lit accident scene with no injuries, required "an exercise in judgment and choice and [involved] what just and proper under the circumstances," Wright, supra, we conclude that in making that decision Officer Arnold was performing a discretionary act and that § 6-5-338(a), Ala. Code 1975, gave him immunity from liability. The plain language of §6-5-338(b), Ala. Code 1975, extends that discretionary-function immunity to the City. We therefore grant the petition for the writ of mandamus and direct the Etowah Circuit Court to enter a summary judgment in favor of the City.
WRIT GRANTED.
Hooper, C.J., and Houston , See, and England, JJ., concur.
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